Health Law and Regulation Update Blog Post by Caroline Scalf.

With little to no discussion of statutory interpretation, the Georgia Court of Appeals seemingly held that O.C.G.A. §51-12-33(b) does not apply in cases with only one defendant at the time of trial, even if the case was initially “brought” against multiple defendants.

In a premises liability action arising from an armed robbery and shooting at an Atlanta CVS, the jury found that CVS failed to employ adequate security measures to protect its property. The jury found CVS 95% at fault, the plaintiff 5% at fault, and the nonparty shooter 0% at fault.

CVS asserted that the jury’s verdict was void because it improperly apportioned fault when it determined that the unidentified shooter was 0% at fault for plaintiff’s injuries. In addition to holding that the verdict was not void, the Georgia Court of Appeals alternatively held that any error by the jury was harmless because O.C.G.A. §51-12-33(b) did not apply. The Court relied on the recent decision by the Georgia Supreme Court in Alston & Bird v. Hatcher Management Holdings, 862 S.E.2d 295 (Ga.Sup.Ct. 2021) (“Hatcher III”), which held that reduction of damages based upon nonparty fault applies only in multiple-defendant cases. In Hatcher III, the case only had one defendant throughout the pendency of the action. The CVS case, by contrast, was initially brought against multiple defendants but had only one remaining defendant at the time of trial. The Court held that O.C.G.A. §51-12-33(b) does not allow a reduction of damages based upon nonparty fault in a case with only one named defendant by the time the case proceeds to trial.

Take-home: The apportionment statute may authorize a reduction of damages based upon nonparty fault only in cases with one remaining defendant at the time of trial.

The case is Georgia CVS Pharmacy, LLC v. Carmichael, ___ S.E.2d ___, 2021 WL 5049438 (2021).