Georgia Court of Appeals Confirms Use of Apportionment to Unknown Non Parties

Pursuant to O.C.G.A. § 51-12-33, a jury may apportion a percentage of fault to any person or entity who contributed to the complainant’s alleged damages, regardless if the person or entity was a party to the litigation. It is, however, the defendant’s burden to establish a rational basis for apportioning fault to a non-party, and whether the defendant meets that burden based on the evidence at trial is an issue to be determined by the jury.

In Six Flags Over Georgia, et al. v. Martin, 2015 WL 7356309 (2015), Martin, a patron of the Six Flags amusement park, was brutally attacked by four individuals at a Cobb County Transit bus stop located outside of the amusement park, and suffered permanent and severe brain damage as a result of the attack. Martin subsequently sued Six Flags under a theory of premises liability, in addition to the four individuals who were criminally convicted of attacking him. The jury returned a verdict against Six Flags totaling $35,000,000, apportioning 8 percent of fault to the four individuals involved in the attack on Martin, and 92 percent of fault, or $32,200,000, to Six Flags.

Six Flags appealed on numerous grounds, one of those being that the trial court erred in not allowing approximately 11 non-party individuals – aside from the four individuals who were convicted of attacking Martin – to be included on the jury’s verdict form. The Court of Appeals noted as an initial matter that Six Flags complied with the notice requirement set forth in the apportionment statute by filing the notice and providing the notice to all individuals capable of being identified (several of the unknown non-parties were identified as “John Does”).

The Court of Appeals noted in its decision that “there was some evidence that Cowert, Forbes, and a John Doe by the name of ‘Mr. Black’ had some involvement in the attack on Martin, and at the conclusion of the trial, Six Flags had requested that those individuals be included on the jury’s verdict form for apportionment of fault.” Martin, at *8. The trial court, however had denied Six Flags’ repeated requests at trial to include Cowert, Forbes and “Mr. Black” on the jury verdict form even though there was evidence supporting Six Flags’ contention that those persons were involved in the attack on Martin.

The Court of Appeals held that the trial court’s denial of Six Flags’ requests to include Cowert, Forbes and “Mr. Black” on the jury verdict form was misapplication of the apportionment statute, which the Court noted “was designed to ‘apportion damages among all persons or entities who contributed to the alleged injury or damages – even persons who are not and could not be made parties to the lawsuit – a scheme that makes no sense if persons whose intentional acts that contributed to the damages are excluded.’ ” Id. at *9 (citing: Couch v. Red Roof Inns, Inc., 291 Ga. 359, 366(1), 729 S.E.2d 378 (2012); Double View Ventures, LLC v. Polite, 326 Ga. App. 555, 562(1), 757 S.E.2d 172 (2014)). The Court concluded that it was well-settled law that, in the context of a premises liability case, “a jury is authorized to apportion fault between an unknown criminal actor and the property owner.” Id. at *10 (citing: GFI Mgmt. Servs., Inc. v. Medina, 291 Ga. 741, 741-743, 733 S.E.2d 329 (2012); see also Polite, at 562(1)(noting that the apportionment statute does not require precise party identification)). Thus, as a result of the trial court’s misapplication of the apportionment statute due to its failure to include Cowert, Forbes and “Mr. Black” on the jury verdict form, the Court of Appeals remanded the case for a new trial.

Jon D. Stewart, Jr.