On November 1, 2011, the Georgia Court of Appeals found that the pattern jury charge on comparative negligence which required a jury to “reduce the amount of damages otherwise awarded to the plaintiff in proportion to the negligence of the plaintiff compared with that of the defendant” was inappropriate and inconsistent with the Tort Reform Act of 2005. Under O.C.G.A. § 51-12-33, enacted as part of that Act, the jury is required to determine the percentage of fault borne by the plaintiff and report that percentage to the judge who is assigned the task of reducing the damages awarded. Clark v. Rush.
Rush sued Clark for injuries that Rush sustained when his car collided with a van driven by Clark, and Clark defended on the ground that Rush was partly at fault for the collision. When the case was tried by a Clayton County jury, the trial court charged the jury with the pattern instruction on comparative negligence and directed the jury to return its verdict on a form, consistent with the pattern instruction, which contemplated that the jury itself would reduce the damages awarded for any comparative negligence and which did not permit the jury to specifically report the percentage of fault, if any, borne by the plaintiff. The jury awarded $20,000 to Rush. Clark had objected to the charge and appealed.
O.C.G.A. § 51-12-33(a) provides that:
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, in its determination of the total amount of damages to be awarded, if any, 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.
This statute is different from the older pattern jury instruction because it requires the trier of fact to determine the percentage of fault of the plaintiff and gives to the judge the job of reducing the damages awarded to the plaintiff based on that percentage. The pattern charge does not require the jury to quantify the percentage of fault precisely and allows the jury to award damages based upon the proportion of fault that they find on behalf of the plaintiff without saying exactly what that proportion might be.
According to the Court, the procedure established by the pattern charge leaves the parties to wonder whether the jury found comparative negligence at all and, if so, whether the jury correctly reduced the damages to be awarded to the plaintiff in proportion to the degree of his or her negligence. The purpose of the statute is to make sure that the jury makes a definite determination of a percentage of fault on the part of the plaintiff and leaves it to the judge to make sure that the percentage is appropriately applied.
In the future, juries will not be given the older, more confusing jury charge. Where the plaintiff is at fault, the juries will be told that they must find a specific percentage of fault and provide a total award of damages. The adjustment of the amount ultimately awarded to the plaintiff, pursuant to the percentage of fault, will be left up to the judge.
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