The Georgia Court of Appeals has just issued a new case which clarifies apportionment of fault against a non-party which is codified at O.C.G.A. § 51-12-33. The statute and subsequent cases allow a Defendant in a civil case to file a notice prior to trial to allow a jury to apportion fault to a party who has not been sued or named in the case. Prior decisions from the Court of Appeals and the Georgia Supreme Court have allowed apportionment in cases where the non-party is an unknown criminal actor who allegedly injured a plaintiff on property owned or managed by Defendant, as well as other cases where a non-party might be found to have some fault for the plaintiff’s alleged injuries.
In the most recent case, Double Ventures, LLC v. Polite, 2014 WL 1227777 (Ga. App. March 26, 2014) the Court of Appeals held that trial court erred in refusing to allow the jury to consider the percentage of fault of a non-party adjacent property owner in connection with Plaintiff’s alleged injuries which occurred on the defendants property. The defendant operated an apartment complex located next to a gas station/convenience store. There was a dirt path connecting the two properties which was often used by residents and others to travel between them. At the property boundary there was a wooden fence, initially erected by the gas station or a former proprietor of the gas station.
The case arose when plaintiff, a resident at the apartment complex was returning from the gas station via the dirt path and was robbed and shot by two unknown assailants who hid behind the wood fence. There had been other similar incidents before plaintiff’s attack and the apartment complex filed a notice of apportionment asserting that the jury should apportion fault, or be able to apportion fault to current and/or former operators of the gas station based on prior incidents at or near the wooden fence and that the gas stations operators failed to keep their property safe for patrons, such as the plaintiff. The trial court did not allow the jury to apportion fault to the operators of the gas station, but the Court of Appeals reversed that decision and ordered a new trial.
In its decision, the Court of Appeals quotes the Georgia Supreme Court’s decision in Couch v. Red Roof Inns, Inc., noting that as the higher court has held, the: “purpose of the apportionment statute is to have the jury consider all of the tortfeasors who may be liable to the plaintiff together, so their respective responsibilities for the harm can be determined …. By its plain language, OCGA § 51–12–33(b) makes all persons responsible according to their respective percentages of responsibility.” Polite, at *3 quoting Couch v. Red Roof Inns, Inc., 291 Ga. 359, 365, 729 S.E.2d 378 (2012).
In considering the sufficiency of the identification of the non-party in the Defendants Notice of Non-Party Fault, which Plaintiff’s alleged was an issue, the Court of Appeals held that “the determination of fault under O.C.G.A. § 51-12-33 does not subject a non-party to liability in any action and cannot be introduced as evidence of liability in any action.” Polite, at * 6 citing O.C.G.A. § 51-12-33(f). The Court notes that no exact identification of the non-party is needed since that party cannot be subject to liability via a non-party apportionment of fault, although such exact identity would be required in order to subject that non-party to liability. Polite, at * 6.
The Court concludes by noting “that the Defendants have a burden to establish a rational basis for apportioning fault to a non-party. Whether the Defendants’ would have met that burden given the trial evidence presented should have been left for the jury to determine. Accordingly, the trial court erred by taking that issue away from the jury and completely omitting the Chevron station from the verdict form.” (Citations omitted). Polite, at * 6.
Essentially the Court of Appeals has held that a jury should be able to make the factual determination of whether to apportion fault in a given case and that the trial court should not remove that opportunity from the jury, strengthening the use of apportionment and the opportunity for a defendant to use the statute in a case where non-party fault is at issue.