In a 5 -2 decision, with Justice Benham and Presiding Justice Hunstein dissenting, the Georgia Supreme Court found that (1) the jury is allowed to apportion damages among the property owner and the criminal assailant, and (2) instructions or special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights. In addition to the Supreme Court’s  analysis of the statutory construction of O.C.G.A. § 51-12-33, the opinion dispensed with the policy arguments argued by the plaintiffs.

None of that came as a surprise to me. The apportionment of fault rule as opposed to a rule of joint and several liability does have a certain appeal to people who have not had to deal with the realities of representing innocent injured people.

The apportionment statute presents an advocacy challenge for lawyers representing innocent people injured through the negligence or wrongful acts of others. For example, if a jury apportions 95% of a $1,000,000 verdicts to a non-party from which no damages can be recovered, and 5% of the verdict to a solvent defendant, then the innocent plaintiff only collects $50,000 of the $1,000,000 judgment. And if the solvent defendant made an offer of judgment under O.C.G.A. § 9-11-68, then the victim may be tagged with that defendant’s defense expenses and come out with nothing at all.

How can this be addressed? Several ideas have been put forward, none of which are foolproof. However, here are a few.

–  A timeline may be used to show a long pattern of negligence in management of a defendant company over a period of weeks or months, compared with the few seconds or minutes in which the the insolvent defendant or non-party was involved. For example, if a trucking company had a long pattern of failure to manage truck driver safety, hours of service, vehicle maintenance, etc., and both their truck driver and another driver were negligent at the moment of the crash, consider graphically illustrating the disparity in the amount of time each was involved in conduct leading to the crash. If a premises owner was repeatedly on notice of the risk of crime on the premises but allowed conditions to become a virtual invitation to criminal assault, then the timeline might help overcome the inclination to apportion everything to the criminal who exploited a target of opportunity.

– A scale may be used to illustrate the relative weight of the number of choices made by each party or non-party to whom fault must be apportioned. If a pebble or a coin on a balance scale represents each choice made that leads up to an injurious event, those made over months or years of safety mismanagement will weigh far more than one momentary bad choice at the time of the incident.

– Think in terms of epidemiology and prevention. The Centers for Disease Control has an entire department devoted to studying the epidemiology of accidents and injury prevention. Analyze how a prudent person in the position of the defendant could easily foresee a risk of injury and the simple, inexpensive actions by the party with the greatest opportunity to manage the situation could have prevented it. Then figure out graphic ways to present that.

None of these approaches are perfect, but they may suggest ways to overcome the obstacles created by the apportionment statute.

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Ken Shigley is immediate past president of the State Bar of Georgia and a double board certified Civil Trial Advocate and Civil Pretrial Advocate of the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12). In addition, Mr. Shigley has an “AV Preeminent” rating in Martindale-Hubbell Law Directory and is listed as a “Super Lawyer” in Atlanta Magazine,  “Legal Elite” in Georgia Trend magazine, and in “Who’s Who in Law” in Atlanta Business Chronicle.

• Make posts short, with short sentences and bullet points, they say.
• But tonight, leaving a bar association dinner, a judge’s law clerk read my name tag and had a flash of recognition.
• In researching a question on which there was no case authority in Georgia,  she searched Westlaw for hours without success, and then Googled the question.
• That led to a post on my blog that was, yes, written like a legal brief, complete with citations. 
• Of course it was, since I had copied and pasted from a brief I had filed in a case.
• She read the turgid prose in my post, looked up the cases I cited, decided my analysis was correct, and gave that work product to the judge in an order to sign.

So much for short, bullet pointed blog posts.  If I want to write a law review article and put in on my blog, complete with exhaustive legal citations, in order to share some creative legal thinking with lawyers, judges and judicial clerks out there, by golly I’ll do it.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary of the 40,000 member State Bar of Georgia.

When the Georgia legislature passed that omnibus tort reform bill almost four years ago, one of the provisions was to require juries to apportion fault between all parties and non-parties — even if they cannot be held liable — at whom the defendant points an accusing finger.

In Indiana last week, a jury following instructions under an apparently similar law awarded $48 million to a man rendered paraplegic in a steel mill accident, and refused to assign any percentage of fault to several non-parties whom the defendant corporation had tried to blame.

Anthony Arciniega, 42, was rendered paraplegic on November 20, 2004, when the refractory suddenly broke loose from the ladder, causing him to lose his grip and fall 17 feet. The jury found Minteq International, Inc. negligent for overspraying its refractory onto a stationary ladder in a Burns Harbor steel mill. Despite the injury, however, Mr. Arciniega returned to work at the steel mill in a wheelchair within six months. The jury also decided that Mr. Arciniega was zero percent at fault for the accident.  In addition to blaming the injured worker, Minteq’s lawyers tried to lay blame on other contractors in the steel mill and on International Steel Group. The jury flatly rejected both claims.

The apportionment of fault statute that the General Assembly of Georgia  passed in 2005 is O.C.G.A. § 51-12-33, which reads as follows:

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

In other states that similarly require allocation of fault between defendants, courts have held that the jury may be required to allocate percentages of fault between an employee driver and his employer against whom separate claims similar to negligent training, entrustment, hiring and supervision are made. 

Ken Shigley is a trial attorney in metro Atlanta. He is listed as a “Super Lawyer” (Atlanta Magazine), “Legal Elite” (Georgia Trend Magazine), and is a  Certified Civil Trial Advocate of the National Board of Trial Advocacy. He  recently elected Secretary of the 40,000 member State Bar of Georgia. He is available for a free consultation in cases of serious personal injury or wrongful death in Georgia.

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970’s, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of “joint and several liability” with “proportional liability” will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar’s proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

Ken Shigley represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “Super Lawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is President-Elect of the State Bar of Georgia (2011-12), a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks). He and Sally have been married since 1983, and are the proud parnts of two young adults, Anne Shigley and Ken Shigley, Jr.