By Matthew G. Moffett and
Wayne S. Melnick,
Gray, Rust, St. Amand, Moffett & Brieske
In a recent CaseMetrix editorial, an author presented his experiences regarding two “criminal attack” premises liability cases and how Georgia’s law regarding apportionment affected each of those trials. The editorial was written by a Plaintiff’s attorney sharing his perspective and experiences. This editorial is written not as a response to the previous one, but rather to present the perspective and experiences of attorneys from the defense side of the bar that have tried apportionment, premises liability cases involving criminal attacks.
Apportionment is an argument to be made, but is not always the focus
One of the first premises liability/criminal attack apportionment cases that the authors tried involved an apartment complex shooting. Unfortunately, the guest was shot and killed during the robbery and as a result, his mother filed a wrongful death claim against the apartment complex owner claiming that the owner’s negligent security was the proximate cause of her son’s death.
Prior to trial, the defense provided timely notice that the jury was to consider the fault of the unknown robbers for apportionment. Although the apportionment issue was presented to the jury, the defense at trial did not focus on apportionment. Rather, the defense presented significant evidence that the apartment complex was not negligent and spent very little time at trial focusing on the apportionment issue. Although apportionment was mentioned in closing argument as an option the jury could consider, the defense spent the overwhelming majority of its time at closing argument reviewing the evidence of the case and how it demonstrated the lack of liability on the part of the apartment complex owner. In fact, the defense encouraged the jury to only consider apportionment as a fall back position and instead pushed for an outright defense verdict. Needless to say, this caused significant complications for Plaintiff’s counsel. In the end, the Fulton County jury took less than three hours, after a full week of trial, to return a defense verdict. This verdict was recently affirmed on appeal by the Georgia Court of Appeals.
However, apportionment can be the focus
Approximately a month after the authors tried the above case in Fulton County, they tried another premises liability/criminal attack case in Dekalb County. In this second case, the authors were defending a private security company that provided security services for a movie theatre. The Plaintiffs in that case claimed that their son was the victim of a “gang attack” in the parking lot of the theatre and that the negligent security provided by the movie theatre and the security company allowed the criminal attack to occur that resulted in the shooting death of their son.
Each of the defendants was represented by different counsel and each Defendant provided notice that the jury was to consider the fault of the alleged gang members that actually shot Plaintiff’s decedent. Although each of the Defendants was separately represented, the defense presented a united front at trial arguing that not only was the security adequate but also that Plaintiff’s decedent initiated or antagonized the attack and brought it on himself. Unlike the apartment complex above, apportionment was an equal feature of both the evidence presented by the defense at trial as well as being an issue that was discussed at length during closing argument. Again, after a week long trial, the Dekalb County jury found fully in favor of the defense and did not apportion fault in any manner. Like the first defense verdict discussed above, this verdict was affirmed on appeal.
Apportionment is not just for criminal attack/premises liability cases
Later the same year as the two trials above, the authors tried another case where apportionment was a feature. However, this Cherokee County case did not involve any alleged criminal behavior. Rather, this was an auto accident case involving severe injuries. In this matter, the Plaintiff alleged that he was injured when the Defendant’s vehicle proceeded into an intersection after stopping at a stop sign but failing to yield the right of way to Plaintiff’s vehicle. In defending the Defendant driver, the authors argued that the facts demonstrated a lack of liability for two reasons. First, Plaintiff had changed lanes from the lane in which he was traveling into the lane where the accident occurred as a result of the negligent actions of an unknown, John Doe driver. As such, the authors provided notice that the jury would consider the fault of the John Doe driver in rendering their verdict. Second, the defense contended that Defendant did everything he could and the intersection itself was poorly designed creating a blind spot for drivers such as Defendant that Defendant was all but required to “peek out” into the intersection in order to see if there was oncoming traffic. This was bolstered by the fact that the Department of Transportation determined that the intersection at issue was a dangerous intersection and made significant changes to the intersection following, and at least partially as a result of, the accident at issue.
At trial, the defense again made a two-fold argument. First, the authors took the position that the Defendant did nothing negligent and had no liability. The authors also argued that should the jury find that there was liability on the part of the Defendant, which was strongly argued against, that there existed equal liability on either the Plaintiff, the John Doe driver or both and as such apportionment was appropriate. After almost a full week of trial, a complete defense verdict was rendered with no apportionment by the jury. This verdict was not appealed.
Conclusions regarding the authors’ apportionment experience
The authors’ experience regarding apportionment has been significantly different than those experienced by the Plaintiff’s counsel that authored the previous editorial. In the authors’ experience, apportionment provides another, significant hurdle for Plaintiff’s counsel in the presentation of the case and yet another weapon in the defense arsenal. While Plaintiffs have always been considered to be masters of their cases in Georgia by having the capability to control who is, and equally as important who is not, a defendant in their case, that privilege has been significantly eroded by the defense’s ability to have the jury consider the fault of a non-party. For this reason, considerations by the defense, both as to overall value and likelihood of a total, non-apportioned Plaintiff’s verdict, should and do properly include the probabilities of apportionment and the difficulty that even the presence of the issue presents for Plaintiffs at trial.