LWDN Quick Flash ~ Sep 2010
Court of Appeals of Georgia Clarifies Issue of Apportionment of Damages in Tort Cases
In Cavalier Convenience, Inc. v. Sarvis, Case No. A10A0538 (Ga. Ct. App., July 9, 2010), the Court of Appeals of Georgia addressed the issue of whether a trier of fact must apportion its award of damages among multiple liable persons when the plaintiff bears no fault. The statute that governs this issue, O.C.G.A. § 51-12-33, was recently amended, prompting this analysis of its language. The trial court below had held that the revised version of the statute does not provide for apportionment of fault among multiple tortfeasors when the plaintiff bears no fault. The Court of Appeals ultimately reversed the trial court’s decision.
The facts in Cavalier arose out of a motor vehicle accident where the plaintiff driver ultimately brought suit against the defendant driver as well as two convenience stores the plaintiff alleged unlawfully sold intoxicating beverages to the defendant driver. The plaintiff sought an order from the trial court to preclude the issue of apportionment of damages being submitted to the jury. The plaintiff argued that since there had been no allegation that he was at fault, O.C.G.A. § 51-12-33 did not mandate apportionment. The trial court agreed with the plaintiff.
On review, the Court of Appeals noted that the prior version of O.C.G.A. § 51-12-33 had permitted apportionment of damages only when the plaintiff was partially at fault. In the revised version of O.C.G.A. § 51-12-33, however, subparts (a) and (b) state:
(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact… shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(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.
O.C.G.A. § 51-12-33 (emphasis added). The Court of Appeals focused on the words “if any” included in subpart (b) of the revised statute. “[I]t is clear from that subsection's plain language that the legislature did not intend for apportionment to be limited to those cases wherein the plaintiff was to some degree at fault.” The Court also noted that if the legislature had intended for apportionment to be limited to only the cases where the plaintiff was at fault it would have drafted the statute to clearly reflect that intention.
Based upon its review of the revised version of O.C.G.A. § 51-12-33, the Court held that, under Georgia law, “where damages are to be awarded in an action brought against more than one person for injury to person or property,” regardless of whether or not fault is to be apportioned to the plaintiff, “the trier of fact shall apportion its award of damages among the persons who are liable according to the percentage of fault of each person.”
To summarize, in contrast to Georgia law prior to the revision of O.C.G.A. § 51-12-33, now a plaintiff need not be found at fault in order for damages to be apportioned among all of the liable persons.