The Aftermath Of Tort Reform: Dealing With The Apportionment Statute

In 2005, the Georgia Legislature passed what is known as the Tort Reform Act of 2005. One of the statutes enacted is O.C.G.A. § 51-12-33(c). This provision of the law states that in assessing percentages of fault in any tort action, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was or could have been named as a party to the suit. Thus, in any tort action in which more than one person allegedly contributed to the damage to the innocent plaintiff, the jury is now required to consider apportioning damages against such parties, whether or not named in the lawsuit. A classic hypothetical might be that when a drunk truck driver runs a stop sign and kills someone. If the drunk driver purchased his or her liquor while noticeably intoxicated from a convenience store, the jury could reduce the damages ordered against the drunk truck driver’s employer (the truck company) by assessing a percentage of the liability against the convenience store that violated the law when selling the alcohol to the drunk truck driver. This would reduce the award against the truck company and potentially the recovery to the victim.
Many hypotheticals can be envisioned but the point of the statute is to protect business. If a business is found liable for a defective product, but someone else also contributed to the injury, business wanted to reduce the verdict so as to reduce the cost to business. This is unfair to the innocent plaintiff who is injured because they may not be able to collect the full extent of their damages when the damages are thus apportioned. Nonetheless, this significant piece of legislation found in the Tort Reform Act of 2005 is currently the law and must be dealt with by all attorneys handling personal injury cases.
One way around the Tort Reform Act of 2005 is to bring a breach of contract claim. Of course, in not every case is a breach of contract claim available as an alternative remedy. However, the Tort Reform Act of 2005 is contained in Title 51 Torts and refers repeatedly to a party at “fault.” Liability for breach of contract is not based on fault or negligence but on the breach of an assumed contractual duty that causes damages to the party in privity of contract. Nothing in the language of the Tort Reform Statute even hints at the possibility that the Tort Reform Act of 2005 could conceivably apply to contract as well as tort claims.
Most plaintiff’s lawyers believe that the apportionment statute is unconstitutional. When two parties are concurrently negligent such that the interaction of their conduct creates a single harm to the plaintiff, it is arbitrary in most cases to assign a percentage of fault to each. Nonetheless, at present, if two parties, for example, were speeding or drag racing and both hit a plaintiff, the jury would have to determine liability and divide fault amongst the responsible parties and even non-parties in the case. Thus, a parent of one of the drag racers who allowed their son to continue driving after having his license suspended for prior drag racing incident could be brought into the mix. Such arbitrary divisions seem to be irrational on its face but, nonetheless, that is the current state of the law. Accordingly, if counsel has the opportunity to bring a breach of contract claim in addition to a tort claim, counsel may be able to avoid the draconian impact of this tort reform legislation.