Thomas A. Eaton

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Special Contribution


For most of its history, Georgia followed the traditional common law rule of joint and several liability and the equally well-settled principle that negligence could not be compared with intent when apportioning liability. Both of those propositions were dramatically altered by the enactment of the 2005 amendments to the Official Code of Georgia Annotated (O.C.G.A.) section 51-12-33 as construed by the Georgia Supreme Court in two recent opinions. In McReynolds v. Krebs, the court held that pursuant to O.C.G.A. § 51-12-33(b): (1) damages must be apportioned among persons who are liable according to percentages of fault of each person even if the plaintiff is not herself at fault; and (2) such apportioned damages are not subject to the rule of joint and several liability. In Couch v. Red Roof Inns, Inc., the court held that under the same statute fault could be apportioned among negligent and intentional tortfeasors. The combination of these two rulings will have a considerable impact on tort litigation in Georgia. Defendants, particularly those in negligent security premises liability cases, will see their liability exposure significantly reduced. They will now be responsible only for the percentage of damages corresponding to their own percentage of fault. Innocent plaintiffs will now bear the burden of the "uncollectible share" of damages, thereby reducing the prospect of securing a full recovery.' Moreover, the successful plaintiff will have to collect separately from each individual defendant, thereby increasing the transaction costs of securing recovery.

This Article is divided into three sections. The first section discusses apportionment, Couch v. Red Roof Inns, Inc., and related cases. The focus of this discussion is on to whom fault may or may not be apportioned. The second section discusses joint and several liability, McReynolds v. Krebs, and related cases. The focus of this discussion is on from whom can a successful plaintiff collect a damage award. The third section of this Article briefly discusses what lies ahead in light of these recent developments.

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