Couch v. Red Roof Inns, Inc.

729 S.E.2d 378, 291 Ga. 359, 2012 Fulton County D. Rep. 2159, 2012 WL 2681399, 2012 Ga. LEXIS 673

• Court: Supreme Court of Georgia
• Decided: July 9, 2012
• Docket: S12Q0625
• Status: Published

Opinions

Melton, Justice.

In this premises liability action,¹ the United States District Court for the Northern District of Georgia has certified the following two questions to. this Court:

(1) In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack, is the jury allowed to consider the “fault” of the criminal assailant and apportion its award of damages among the property owner and the criminal assailant, pursuant to OCGA § 51-12-33?

(2) In a premises liability case in which the jury determines a defendant property owner negligently failed to prevent a foreseeable criminal attack, would jury instructions or a special verdict form requiring the jury to apportion its award of damages among the property owner and. the criminal assailant, pursuant to OCGA § 51-12-33, result in a violation of the plaintiffs constitutional rights to a jury trial, due process or equal protection?

For the reasons set forth below, we find that (1) the jury is allowed to apportion damages among the property owner and the criminal assailant and (2) instructions or a special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights.

1. 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, e.g., the property owner in a premises liability action, for purposes of apportioning damages among all wrongdoing parties. This is the clear directive of OCGA § 51-12-33, the intent of which is easily discernible from the straightforward text of the statute.² The portion relevant to this case comes into play at the close of evidence, specifically when a jury must decide whether the plaintiff has suffered any damages. OCGA § 51-12-33 addresses the two classes of people, the plaintiff(s) and tortfeasor(s), including non-parties, who are responsible for these damages and instructs the jury what to do in each scenario.

Subsection (a) addresses plaintiffs and deals with instances where the plaintiff is “to some degree responsible for the injury or damages claimed.” The dominant purpose of this subsection is to instruct the jury on how and when to reduce “the amount of damages otherwise awarded to the plaintiff in proportion to [plaintiff’s] percentage of fault.” Here, the legislature is using “responsible” and “fault” interchangeably. “Fault” means that the damages are reduced, where appropriate, based on the degree to which plaintiff’s actions contributed to the damages.³

Next, subsection (b) addresses the full universe of tortfeasors, whether parties or not, and addresses what happens to “the total amount of damages to be awarded, if any, . . . after a reduction of damages pursuant to subsection (a)” related to plaintiff’s responsibility or fault. It is evident here that this section is designed to address “the total amount of damages” remaining at this point and the liabilities of all persons whom the jury has determined to be liable for the plaintiff’s damages.⁴ It is axiomatic that juries, where authorized by law and supported by the evidence, are authorized to find that certain defendants may have been simply negligent, while other defendants acted intentionally. Here, the full statutory instruction to the jury is enlightening. The jury will be instructed to “apportion its award of damages among the persons who are liable according to the percentage oí fault of each person.” (Emphasis supplied.) In simplest terms, take the total amount of damages to be awarded to the plaintiff, identify the persons who are liable, and apportion the damages to each liable person according to each person’s percentage of fault. Just as in subsection (a) dealing with plaintiffs, “fault” in subsection (b) refers to the degree to which each tortfeasor’s actions contributed to the damages.

This interpretation corresponds with the ordinary meaning of “fault,” which includes intentional conduct. See OCGA§ 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter.”). See also Six Flags Over Ga. II, L.P. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (“In the absence of words of limitation, words in a statute should be given ‘their ordinary and everyday meaning.’ ”) (citations and punctuation omitted). Webster’s Dictionary defines fault as “responsibility for wrongdoing or failure.” Webster’s New Collegiate Dictionary 414 (1981). Just a year before OCGA § 51-12-33 was amended, the Court of Appeals had to decide what the word “fault” meant in a bond statute. Pursuant to the fundamental rule of statutory construction discussed above, the court said that since “ ‘fault’ is not a term of art, but is a word of general use, it is to be given its ‘ordinary and everyday meaning.’ ” A.A. Professional Bail v. State of Georgia, 265 Ga. App. 42, 44 (592 SE2d 866) (2004) (interpreting OCGA § 17-6-31 (e)). Looking to English and legal dictionaries, the court held that “fault” includes “conduct done wrongly or negligently” (id.) — exactly the way the Legislature would expect courts to interpret “fault” when it used the same term a year later in OCGA § 51-12-33. The assailants who attacked the hotel guest in this case most certainly have responsibility for that wrongdoing.

Furthermore, there is direct evidence from the statute, itself, that fault is not meant to be synonymous with negligence, but instead includes other types of wrongdoing which include intentional acts. OCGA § 51-12-33 (d) (1) states: “Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty. . . .” (Emphasis supplied.) This leaves no doubt that fault is not simply negligence,⁵ and it shows the infirmity of the dissentfs analysis, under which this statutory provision would have to be given the incorrect translation of “negligence or negligence.” “[T]he fundamental rules of statutory construction... require us to construe a statute according to its terms, to give words their plain and ordinary meaning, ánd to avoid a construction that-makes some language mere surplusage.” Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (20.03). The statute’ uses “fault” synonymously with “responsibility” and “liability” for and “contribut[ion]” to the damages claimed, all words whose ordinary meaning encompasses intentional as well as negligent acts.⁶ The statutory scheme is designed to apportion damages among “all persons or entities who contributed to the alleged injury or damages” even persons who are not and could not be made parties to the lawsuit — a scheme that makes no sense if persons whose intentional acts that contributed to the damages are excluded..

In addition, there is clear evidence that, had the Legislature intended to exclude intentional acts from apportionment, it would have done so, as other state legislatures have done. OCGA§ 51-12-32, which immediately precedes the apportionment statute, states that contribution is not applicable to “tortious acts [that] involve moral turpitude,” which includes intentional torts. Crawford v. Johnson, 227 Ga. App. 548, 555 (489 SE2d 552) (1998). If the Legislature intended for an exclusion for intentional torts to apply to the apportionment statute, it would have expressly said as much. It did not, and the dissent is incorrect in its attempt to create an exclusion where there is no reason to believe that it exists. State v. Fielden, 280 Ga. (629 SE2d 252) (2006) (“[U]nder our system of separation of powers this Court does not have the authority to rewrite statutes.”).

When a word has a broad meaning, it is not natural to then specify that the term includes something that is already included in its meaning. In other words, a thing need not be defined into a class that already includes it. For example, theft is a type of crime, so it would be unusual to say “crimes, including thefts.” In fact, when the Legislature lists only one or a few things that are ordinarily covered by a broad term, courts may conclude that the Legislature meant not to include the other things in the class that were not listed. This is the principle of “expressio unius est exclusio altérius” — “the express mention of one thing excludes all others.” Instead, what a legislature normally does, if it wants to make sure that readers understand that a word with a broad ordinary meaning does not include something within that meaning, is to expressly define that thing out of the category. Here, the General Assembly showed that it did not intend to implicitly exclude intentional torts from the scope of apportionment under OCGA § 51-12*33, because in the provision right before that, OCGA § 51-12-32, the General Assembly explicitly excluded intentional torts and other “tortious acts that involve moral turpitude” from the scope of contribution. These are two sequential provisions of the same Code.

An analysis of case law from other states interpreting other states’ apportionment statutes is not actually necessary in this case. The ordinary meaning of “fault” is clear, as are the other textual indications in OCGA § 51-12-33, and Georgia courts do not need to look to the law of other states when the meaning of a Georgia statute is plain. Nevertheless, if the General Assembly had surveyed the nation’s cases, they would have found apportionment cases from other states that interpret “fault” in different ways. However, in every instance, the decisions that say the word does hot include intentional torts were interpreting statutes that specifically defined the word “fault” more narrowly than its ordinary meaning, except in Oregon, where a statute that replaced “negligence” with “fault” had prior judicial rulings and legislative history explaining that the change was not meant to expand the statute’s scope. See Shin v. Sunriver Preparatory School, Inc., 111 P3d 762, 775-776 (Ore. App. 2005). Georgia’s statute has none of that.

On the other hand, as noted above, the Colorado Supreme Court has held that the undefined word “fault” has an ordinary meaning that includes intentional torts. Moreover, where state statutes define “fault” as broadly as the dictionary definition, the dissent cites no court in the country that has held that fault is limited to negligence. In fact, the dissent’s survey of foreign case law badly misrepresents the holdings of the Arkansas and Maine cases it cites⁷ and ignores the on-point Colorado decision. The results of a candid survey are unsurprising: when a word like “fault” is not defined in a statute, the basic rule used by courts across the country is to apply the word’s ordinary, everyday meaning.

The existence of a common law rule against apportionment to intentional tortfeasors does not alter this interpretation. Courts like to preserve the law they and their predecessors have made in deciding cases. But as long as legislation does not violate the Constitution, when the Legislature says something clearly — or even just implies it — statutes trump cases. As the Georgia Constitution says, “The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.” See Ga. Const, of 1983, Art. Ill, Sec. VI, Par. I.

A statute does not need to expressly say, “this is intended to preempt the common law.” The actual canon of statutory construction is “ ‘that [statutes] in derogation of the common law . . . must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.’ ” Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 512 (614 SE2d 745) (2005) (citation omitted). Because the ordinary meaning of the word “fault” as used in OCGA § 51-12-33 includes intentional torts, and the other language used in the statute reinforces that meaning, construing OCGA § 51-12-33 to apply to intentional torts requires no extension beyond its “plain and explicit terms.”

The General Assembly’s intent to displace the common law of apportionment is also demonstrated by OCGA § 51-12-33 (g): “Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.” The common law of comparative negligence barred any recovery by a plaintiff who was equally or more at fault than the defendant(s) for the damages at issue. If OCGA§ 51-12-33 were not meant to supplant the common law, there would be no need to restate that rule in the statute. But because “fault,” as used without limitation in OCGA § 51-12-33, includes all wrongdoing, and subsections (a) through (c) direct the jury to apportion fault among all persons who contributed to the damages, without subsection (g) a plaintiff who was 50% or more at fault would still be able to recover. The Legislature needed to write that common-law rule into the statute for it to remain in effect, something that the Legislature did not do with respect to the common law of apportionment with intentional tortfeasors.

It should also be noted that there is already persuasive Georgia precedent on this issue. In Pacheco v. Regal Cinemas, Inc., 311 Ga. App. 224 (2) (b) (715 SE2d 728) (2011) (physical precedent only), the Court of Appeals ruled that the trial court correctly charged the jury on OCGA § 51-12-33 in a case where it was alleged that a property owner failed to protect a patron from a foreseeable criminal act. See also Cavalier Convenience v. Sarvis, 305 Ga. App. 141 (699 SE2d 104) (2010).

The purpose of the apportionment statute is to have the jury consider all of the tortfeasors who may be liable to the plaintiff together, so their respective responsibilities for the harm can be determined. After determination of any fault on the part of the plaintiff which might reduce the plaintiff’s re ward, OCGA§ 51-12-33 (b) provides that

the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section [reflecting a plaintiff’s responsibility], if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person.

One is liable to a plaintiff if he or she “is responsible or answerable in law.” Black’s Law Dictionary (9th ed. 2009). Both negligent tortfeasors and intentional tortfeasors are “answerable in law” to a plaintiff for damages caused to that plaintiff. By its plain language, OCGA § 51-12-33 (b) makes all persons responsible according to their respective percentages of responsibility. Therefore, as set forth above, proper statutory construction mandates a finding that “fault,” as used in OCGA § 51-12-33, encompasses intentional torts.

The plaintiff in this case raises six additional policy-based arguments, none of which change the result. First, the plaintiff contends that requiring apportionment nullifies a property owner’s duty to keep its premises safe. See OCGA § 51-3-1. It does not. The duty remains even where damages are apportioned. Second, the plaintiff makes a related argument that apportionment allows property owners to avoid the consequences of their actions or inactions. However, property owners remain responsible for their actions and will be required to pay damages in proportion to their level of responsibility. Third, the plaintiff argues that the negligence of a property owner is derivative of a criminal assailant’s conduct, and, as a result, the property owner must be held fully responsible, just as a principal is held responsible for the acts of an agent. This analogy, however, is misplaced, as the actions of a criminal assailant aré wholly separate from any action or inaction of a property owner and there is no respondeat superior. Fourth, the plaintiff argues that mandatory apportionment would provide a disincentive for a property owner to keep his premises safe. This argument fails because a property owner must still keep his premises safe or face potential liability for an amount of damages commensurate with its responsibility for a plaintiff’s harm. Fifth, the plaintiff maintains that the injury she suffered is single, indivisible, and cannot be apportioned. This is unfounded. While the injury may be singular, the damages flowing from that injury may be apportioned by statute among the tortfeasors responsible for causing it. Sixth and finally, the plaintiff argues that the defendant property owner in this case cannot establish evidence to support any rational basis for apportionment. That, however, is a question of fact not relevant to answering the legal questions set forth in this case. See Polston v. Boomer shine Pontiac-GMC Truck, Inc., 262 Ga. 616 (423 SE2d 659) (1992).

2. Jury instructions or a special verdict form requiring the jury to apportion its award of damages among the property owner and the criminal assailant, pursuant to OCGA § 51-12-33, would not result in a violation of the plaintiff’s constitutional rights to a jury trial, due process or equal protection. (Citations and punctuation omitted.) Dev. Auth. of DeKalb County v. State of Ga., 286 Ga. 36, 38 (1) (684 SE2d 856) (2009). The plaintiff in this case has not satisfied this burden.

[A] 11 presumptions are in favor of the constitutionality of an [A]ct of the legislature and... before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this [C]ourt must be clearly satisfied of its unconstitutionality. Moreover, because statutes are presumed to be constitutional until the contrary appears, . . . the burden is on the party alleging a statute to be unconstitutional to prove it.

With regard to the right to a jury trial, a jury applying OCGA § 51-12-33 does not abdicate any part of its normal function — it assesses liability, calculates damages, and names the tortfeasors who are responsible. With regard to due process, OCGA § 51-12-33 neither violates a plaintiff’s right to due process because it is unconstitutionally vague or because it destroys a vested property right. As discussed at length above, the statutory scheme is discernible, and it gives juries adequate guidance in assessing and apportioning damages among responsible persons. It also preserves a plaintiff’s right to pursue a judgment against all tortfeasors responsible for causing harm. Furthermore, OCGA § 51-12-33 does not conflict with OCGA § 51-12-31, a statute which, expressly does not apply where OCGA § 51-12-33 applies. Indeed, OCGA § 51-12-31 expressly provides that, “fejxcept as provided in Code Section 51-12-33, where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury.” (Emphasis supplied.) See also McReynolds v. Krebs, 290 Ga. 850 (725 SE2d 584) (2012) (With respect to the right of contribution pursuant to OCGA § 51-12-32, “OCGA § 51-12-33 (b) flatly states that apportioned damages ‘shall not be subject to any right of contribution ...’ [and OCGA § 51-12-32] obviously cannot trump the rules set forth in OCGA § 51-12-33 because it begins with the phrase, ‘(e)xcept as provided in Code Section 51-12-33.’ ”). Finally, with regard to equal protection, as set forth above, the statute is certainly supported by a rational basis of apportioning damages among all tortfeasors responsible for harming a plaintiff in an efficient and orderly manner.

Questions answered.

All the Justices concur, except Hunstein, P. J., and Benham, J., who dissent.

1 The plaintiff in this case suffered a violent attack by unknown criminal assailants while staying in a hotel and subsequently brought suit against the owner of the hotel for failing to keep the premises safe.”

2 The full text of the statute provides:

(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. 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.

(c) In assessing percentages of fault, 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.

(d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.

(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.

(f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.

(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.

3 If the plaintiff is 50 percent responsible or more, there is no recovery. OCGA § 51-12-33 (g).

4 OCGA § 51-12-33 (c) provides: “In assessing percentages of fault, 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.” Therefore, all tortfeasors should be considered at the same time.

5 In fact, .the Legislature has given this indication throughout the Georgia Code. See, e.g., OCGA §§ 9-11-60 (d) (2), 15-6-62 (c), and 38-2-32 (c).

6 Colorado’s apportionment statute contains similar references to “negligence or fault,” and the Supreme Court of Colorado has interpreted this phrase to include intentional torts as well as negligent acts. Slack v. Farmers Ins. Exchange, 5 P3d 280, 285 (Colo. 2000).

7 Kubik v. Igleheart, 657 SW2d 545 (Ark. 1983), is a proximate cause rather than an apportionment case, and the opinion does not mention the Arkansas statute, Ark. Code Ann. § 16-64-122 (c), that the dissent alleges it interpreted. In fact, the Arkansas statute “calls for a comparison of fault, not just negligence, and fault encompasses intentional conduct.” F.D.I. C. v. Deloitte & Touche, 834 FSupp. 1129, 1145, n. 26 (E.D. Ark. 1992). And the Maine Supreme Judicial Court in McLain v. Training & Dev. Corp., 572 A2d 494 (1990), explains clearly that the broad definition of fault that the dissenting opinion quotes is the one applicable to defendants and, “ [u] nder the broad sweep of that language, [the statute] would apply to the intentional tort of assault and battery committed by the defendant,” id. at 496; however, the separate and narrower definition applicable to plaintiffs, which the dissent does not mention, does not apply to intentional torts. See id. at 497.