Court of Appeals Answers Apportionment Question in Favor of Defendants

Christopher Sarvis and Jeremi Bath were involved in a car wreck in 2006. Bath was allegedly intoxicated at the time of the collision. Sarvis sued Bath, Cavalier Convenience, Inc. and Ken’s Supermarkets, Inc. alleging that Bath was negligent and that Cavalier and Ken’s Supermarket had unlawfully sold intoxicating beverages to Bath.

Prior to trial, Sarvis filed a motion seeking to preclude the issue of apportionment from being argued or submitted to the jury. The defendants argued that apportionment is mandated where multiple defendants are found liable. Sarvis claimed that the statute requires apportionment only in those cases in which the plaintiff is also found to have been responsible to some degree for the injuries claimed and pointed out that there was no allegation that Sarvis was a fault. The trial court agreed with Sarvis and entered an order prohibiting any mention to the jury of apportionment of damages. Cavalier and Ken’s Supermarket were allowed to appeal to the Georgia Court of Appeals which found that the trial court was wrong.

The Court of Appeals determined that it was the Georgia Legislature’s clear intent in enacting the apportionment statute to require damages to be apportioned among persons who are liable according to the percentage of fault of each person. The Court focused on the phrase “if any” in the statute (“the total amount of damages to be awarded, if any, shall after reduction of damages pursuant to subsection (a) of the this Code section, if any, apportion its award of damages) to indicate that the legislature took into account the possibility that the plaintiff might not be found to be negligent. Sarvis argued that the language in subsection (a) of the statute, which was held over from the old statute, required apportionment only when the plaintiff is found to some degree responsible for his or her own injury or damages. As you may recall, under the old law a jury was allowed, but not required, to apportion fault only when the plaintiff was also found negligent.

It is certain that Sarvis will seek to appeal this ruling to the Georgia Supreme Court. I will be sure to let everyone know if the Supreme Court agrees to hear this case but because it relies heavily on legislative interpretation and is of great interest to tort lawyers in Georgia, I expect there is a much better than average chance that the Supreme Court will take a look at it. There are also other challenges to the apportionment statue looming, including the argument that apportionment is not allowed against non-parties if there is only one defendant.

For the time being, however, in any case in which there are multiple defendants, apportionment is required among those defendants and non-parties found to be at fault whether the plaintiff is negligent or not.

Please let me know if you would like a copy of the decision.

About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.