Holding the criminal accountable, even if the plaintiff's lawyer doesn't want to!

The GA Supreme Court decided that a jury should be allowed to apportion damages among a property owner and a criminal assailant in a premises liability case and instructions or a special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights.

The plaintiff in Couch suffered a violent attack by an unknown criminal assailant while staying in a hotel and subsequently brought suit against the owner of the hotel for failing to keep the premises safe. The case is pending in federal Court and had been sent to the Georgia Supreme Court to answer questions regarding the interpretation of Georgia’s apportionment statute.

Writing for a majority of the Court, Justice Melton found that the rules of statutory construction, including reliance on ordinary word meanings, dictate that an assailant who evades hotel security to intentionally abduct, rob, and assault a hotel guest is, at the very least, partially at “fault” for the brutal injuries inflicted by the assailant on that guest. As a party at fault, such an assailant must be included with others who may be at fault such as the property owner in a premises liability action for purposes of apportioning damages among all wrongdoing parties. That is the clear directive of the Georgia apportionment statute, OCGA § 51-12-33.

The arguments against application of the apportionment statute to intentional criminal conduct centered on the interpretation of the word “fault.” The plaintiff contended that “fault” as used in the statute did not include intentional conduct. According to the Supreme Court, however, the ordinary meaning of “fault” includes intentional conduct and if the legislature had intended to exclude intentional conduct from that definition it could have and would have done so. “Fault” is not a term of art but is a word of general use to be given its ordinary and every day meaning. Fault is not meant to be synonymous with negligence, according to the Court, but includes other types of wronging such as intentional acts.

It is clear now that in any premises liability case involving a criminal assault, a jury will be allowed to apportion damages to the criminal assailant, whether known or unknown. In my opinion, our GA Supreme Court again has done the right thing in allowing juries to impose liability in a fair and reasonable way, and against the criminal who caused the injury, even if the plaintiff’s lawyer chooses not to sue that criminal in the case.

I have tried and continue to defend many of these criminal attack cases and am happy to talk with you about the discovery and trial strategy we employ for the defense. I also am happy to send you a copy of the Couch decision.

Matt Moffett – for the defense

About the Author

Matthew G. Moffett is a civil litigation defense attorney handling cases in both state and federal courts. His legal ability is rated “AV”, as published in Martindale-Hubbell, which is the highest rating afforded to lawyers by their peers. He is listed among the Georgia Super Lawyers in Atlanta Magazine and among the Legal Elite in Georgia Trend magazine.