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Who Exactly Committed This Crime, Anyway? Recent Trial Court Rulings Denying Apportionment Of Fault To Criminals In The Context Of Premises Liability / Negligent Security Cases

November 05, 2011 BY Def Admin

A crime victim who pursues a civil case is looking for deep pockets;  the actual criminal is therefore rarely a “target defendant” simply because he has no assets.  As to any other potential defendants the rule in most cases, a criminal act is a superseding event which breaks a chain of causation.  However, a significant exception to this rule arises in the context of premises liability cases; in Georgia, an owner or occupier of land in Georgia owes a non-delegable duty to keep its premises safe by using reasonable care to protect its invitees fromforeseeable criminal acts.  A key issue in negligent security cases is keeping the jury’s “eye on the ball” by focusing on the criminal’s responsibility for the crime, preferably by having the criminal listed on the verdict form.  However, the plaintiff’s bar has launched a salvo of attacks on apportionment in these cases.  The only appellate case squarely on point is not binding precedent and the trial courts have issued mixed rulings.  As a result, there are at least two cases pending in the Georgia Court of Appeals that will address the issue of whether an owner or occupier of land may apportion fault to a criminal in a negligent security case.

Generally, Georgia’s apportionment statute requires a trier of fact to “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.”  At trial, the jury is required to apportion percentages of fault between all of the responsible persons and to calculate plaintiff’s total damages.  Judgment is then entered as each defendant based upon their percentage of fault.  In an apparent attempt to abolish the concept of joint and several liability, the statute provides that “damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.”

The argument for the application of the apportionment statute to a negligent security case is simple and straightforward:  (1) the statute permits apportionment to parties or non-parties who are “negligent or at fault”; (2)  the criminal is certainly at fault for his own conduct; and (3)  the “property owner” defendant is therefore entitled to have a jury apportion a percentage of fault to the criminal. 

The only appellate case in Georgia which has so far addressed apportionment in the specific context of negligent security is Pacheco v. Regal Cinemas, Inc.  The Pacheco case arose from a gang-related shooting in the parking lot of a movie theatre.  The decedent’s family filed suit against the operator of the movie theater and its security company.  At trial, Defendants argued to apportioned fault to the criminal who was convicted of the crime over the Plaintiff’s objection.  The jury returned a defense verdict.  (We have obtained the verdict form confirming that the jury did not apportion fault to the defendants or to the convicted criminal!)

 On appeal, Pacheco challenged the trial court’s decision to charge the jury on apportionment  O.C.G.A. § 51-12-33.  Pacheco argued that it was “not rationally possible to apportion fault between a premises owner and the criminal perpetrator that the owner that the owner was supposed to protect against” and in support of this argument, relying on a Florida case (although Florida’s apportionment state expressly prohibits apportionment to the perpretrator of an intentional act) and a Tennessee case (which did not deal with an apportionment statute).  The Court of Appeals was not persuaded by the Florida or Tennessee cases and held that it was not error to charge the jury as to apportionment.  Under most circumstances, the Pacheco ruling would be considered a strong “win” for the defense; however only two of three judges agreed with its logic so the case is not binding precedent.  It also appears that the Pacheco court was not presented with the most recent arguments that have been made to the trial courts.

In the last three months, two metropolitan Atlanta trial courts have rejected attempts to apportion fault to criminals in negligent security cases.  In Salinas v. Coro Realty Advisors, a Fulton County case, the trial judge declined to permit apportionment to a criminal based on the theory that a landowner’s “derivative liability” for the conduct of a criminal is incompatible with the apportionment statute.  The Court relied on a ruling by the Georgia Court of Appeals ruling in PN Express v. Zegel, a trucking case in which the trial court declined to permit an employer to apportion fault to a nonparty for the alleged negligent supervision of its own employee.  TheZegel court held that comparative fault statute did not apply because the employer was not a “joint tortfeasor” with its driver, but that its liability was solely based upon the acts of its driver.  “Since the corporations liability for the accident was purely vicarious in nature for the acts of [the driver], it is obvious… that the comparative fault statute does not apply.”   Analogizing the PN Express case, the Salinas trial court reasoned that, although the “duty” and “breach” elements in a Respondeat superior claim differ from the elements of a premises liability/negligent security claim, they both serve the police of holding a third party liable for the harm caused more immediately by the third party actor.  The trail court therefore declined to permit the defendants to apportion fault to a third party criminal. 

In Joshua Martin v. Six Flags, a Cobb County case, the trial court judge determined in a brief order that the legislature did not intend to eliminate joint and several liability in premises liability cases where one defendant is alleged to have committed an intentional tort.  The court reasoned that allowing apportionment in such cases would effectively allow the premises owner to shield itself from liability because the fact finder would apportion all damages against a criminal, and that this would produce an absurd result by allowing the owner or occupier of land -  which allegedly breached a duty to prevent a crime - to use the crime itself as a shield from liability. 

We should expect further guidance on the issue of whether it is permissible to apportion fault to a criminal in a negligent security case sometime in 2012.  The Georgia Court of Appeals has granted interlocutory review of the orders in both the Salinas and Martin cases, which are currently in the briefing stage.

On a slightly different note, there is a remaining “live” issue that has the potential to affect a significant number of cases involving apportionment.  There is a fairly technical argument to be made that based upon the wording of the apportionment statute, apportionment is not available when a plaintiff is not alleged to be at fault for their own injuries. The Georgia Court of Appeals rejected that argument earlier this year in the premises liability/slip and fall case of Cavalier Convenience, Inc. v. Sarvis.  The Georgia Supreme Court expressed interest in that holding and granted certiorari, but the case settled and the appeal was withdrawn.  However, the Georgia Supreme Court granted certiorari with regard to the same issue in a subsequent case and heard oral argument in September, 2011.  An order can be expected sometime in mid-2012.

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley
(Editor-in-chief)