Paying your fair share (but only your fair share)!

Well, if the good guys win and apportionment of “fault” to the criminal is upheld, a jury can serve as big a slice of the liability pie to the criminal as the jury so chooses.  Of course that means the property owner/manager is only liable to pay for what (if anything) it has left to eat of that pie. Now, how is that anything but fair?

If the trial lawyers win, however, then the property owner/manager has to eat the whole liability pie!  Some trial judges want it this way too, and one state court judge recently ordered that a property owner/manager “bears responsibility for full consequences of the criminal act.”  Now how is that anything but unfair?

Last week I argued before the GA Court of Appeals on this hotly debated issue which involves the interpretation of GA’s 2005 apportionment of fault statute.  (Watch the oral argument below.)

The GA Supreme Court also has the issue under review, at the request of a federal trial judge.  No decisions yet but as we wait we continue to pressure our trial courts into doing the fair and right thing.  How?

  • We always file a timely notice of non party fault and identify the criminal by name if known or as John Doe if not known.  Trial lawyers never (OK, rarely) choose to sue any known criminal, unless of course the criminal is some wealthy person or celebrity.  And, these lawyers certainly don’t seek justice from an unknown criminal by suing in the name of John Doe (like we see them do to collect UM insurance). Why is that? Our position is that the liability or fault plaintiff claims against our client property owner/manager is something the jury should weigh in comparison to the fault of the actual criminal who did the bad deed. Doing so is what the Georgia Legislature contemplated when enacting in 2005 our present statutory apportionment law (OCGA § 51-12-33) which did away with the former joint and several liability law.

  • If the trial judge rules against jury apportionment (to the criminal), as more and more seem willing to do, we seek a certificate of immediate appellate court review and take our argument to the next level on application.  Doing this will stay the pending trial until the appellate court weighs in.  On appeal, we then battle against the basic contention that the property owner/manager’s liability derives from the criminal’s actions and thus the former can’t shirk its statutory responsibility to exercise reasonable care in keeping the property safe.  In other words, but for the criminal act, there would be no owner (and manager/occupier) liability so one leads to the other’s liability absent reasonable care.

  • If the judge rules in favor of jury apportionment, we present it as an option to the jury and remind them that they still can return a defense verdict for the property owner/manager. We then argue the evidence as to why the owner/manager were not negligent, otherwise acted with reasonable care and thus not the proximate cause of the contended injury and damage.  We did this in our last two wrongful death trials, and both juries returned defense verdicts (without apportioning fault) for our clients.  Both defense verdicts were upheld on appeal.

And that brings us back to our current case on appeal involving the alleged negligent security of an apartment complex owner and manager over the death of a tenant’s guest after being shot by a criminal in the parking lot.  If you want to discuss further any of this apportionment law, or want to see our brief to the appellate court or if you just want to discuss any similar situation you might now be handling, feel free to give me a call at 404-870-7390.

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.