Clark v. Rush

• Decision Date: 01 November 2011
• Docket Number: No. A11A1418.,A11A1418.
• Citation: Clark v. Rush, 312 Ga. App. 333, 11 FCDR 3472, 718 S.E.2d 555 (Ga. App. 2011)
• Parties: CLARK v. RUSH.
• Court: Georgia Court of Appeals

11 FCDR 3472

312 Ga.App. 333

718 S.E.2d 555

CLARK

v.RUSH.

No. A11A1418.

Court of Appeals of Georgia.

Nov. 1, 2011.

Tavis L. Knighten, Atlanta, Mary Katherine Durant, Allison Marie McDonald, for appellant.

Roger W. Orlando, Decatur, for appellee.

BLACKWELL, Judge.

In this case, we must consider whether the pattern jury instruction on comparative negligence is an accurate statement of the law. According to the pattern instruction, if the jury determines that the plaintiff was negligent and that his negligence, although less than that of the defendant, contributed to the injury for which he seeks damages, the jury must “reduce the amount of damages otherwise awarded to the plaintiff in proportion to the negligence of the plaintiff compared with that of the defendant.” Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.141. We previously have approved this pattern instruction, see Whelan v. Moone, 242 Ga.App. 795, 796–797(2), 531 S.E.2d 727 (2000), but that was long before the current version of OCGA § 51–12–33(a) was enacted as part of the Tort Reform Act of 2005. See Ga. L. 2005, p. 1, § 12. In cases of comparative negligence, OCGA § 51–12–33(a) requires the jury to determine the percentage of fault borne by the plaintiff and report that percentage to the judge, but the statute assigns the task of reducing the damages award accordingly to the judge. We have cautioned before that OCGA § 51–12–33(a) seems to require such a procedure,¹ but it appears that the pattern jury charge on comparative negligence has not been revised to accommodate the procedure that the General Assembly adopted in 2005. Today, we conclude that the pattern instruction on comparative negligence no longer is an accurate statement of law.

Zanta'vious Rush sued Courtny Clark for injuries that Rush sustained when his car collided with a van driven by Clark, and Clark defended on the ground that Rush was partly at fault for the collision. When the case was tried by a Clayton County jury, the trial court charged the jury with the pattern instruction on comparative negligence, and the court directed the jury to return its verdict on a form that, consistent with the pattern instruction, contemplates that the jury itself would reduce the damages award for any comparative negligence and did not permit the jury to specifically report the percentage of fault, if any, borne by the plaintiff. Clark timely objected to both the jury instruction and the verdict form. The jury awarded $20,000 to Rush, and Clark appeals, enumerating the jury instruction and the verdict form as error. We reverse and remand for a new trial.

1. On appeal, Rush does not dispute the contention that the charge on comparative negligence and the verdict form are inconsistent with OCGA § 51–12–33(a) and, therefore, erroneous, but he argues instead that there simply is no evidence from which a jury could find that he was negligent and that his negligence contributed to his injuries. If Rush is right, of course, the errors that Clark asserts with respect to the jury instructions and verdict form would be harmless, Morrow v. State, 155 Ga.App. 574, 575(2), 271 S.E.2d 707 (1980), so we will consider first whether the evidence properly put comparative negligence in issue. We conclude that it did.

Clark testified at trial that, before the collision, she came to a stop as she prepared to turn left onto Mount Zion Road, looked both ways, saw no oncoming traffic, and began to make her left turn. Only then did she see the headlights of the car Rush was driving, which was “coming real fast,” according to Clark. There was evidence that the speed limit on Mount Zion Road is 40 miles per hour, and it was undisputed that Rush struck Clark's van with sufficient force to flip the van onto its side. Moreover, Clark testified that her van rolled over three times before coming to rest on its side. A jury might properly conclude from this evidence, we think, that Rush was driving too fast,² that driving so fast was negligent, and that his negligence contributed to the collision. Clark was entitled, therefore, to a correct charge on comparative negligence. See Jimenez v. Morgan Drive Away, 238 Ga.App. 638, 641(2)(b), 519 S.E.2d 722 (1999).

2. We turn now to the jury instruction on comparative negligence and the verdict form. The trial court in this case charged the jury with the pattern instruction on comparative negligence:

If you find that the defendant was negligent so as to be liable to the plaintiff and that the plaintiff [also] was negligent, thereby contributing to [the] plaintiff's injury and damage, but that the plaintiff's negligence was less than the defendant's negligence, then the negligence of the plaintiff would not prevent the plaintiff's recovery of damages, but would require that you reduce the amount of damages otherwise awarded to [the] plaintiff in proportion to the negligence ... of the plaintiff compared with that of the defendant.

See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.141.³ This pattern charge is based on our decision in Underwood v. Atlanta, etc., R. Co., 105 Ga.App. 340, 358–362(8), 124 S.E.2d 758 (1962), reversed in part on other grounds, Atlanta, etc., R. Co. v. Underwood, 218 Ga. 193, 126 S.E.2d 785 (1962), and it predates the enactment of the Tort Reform Act of 2005. See Little Ocmulgee Elec. Membership Corp. v. Lockhart, 212 Ga.App. 282, 284(2), 441 S.E.2d 796 (1994) (physical precedent only); id. at 285–286, 441 S.E.2d 796 (Blackburn, J., concurring specially). Clark timely objected to this instruction, asserting that it is inconsistent with the requirement of the current version of OCGA § 51–12–33(a) that the judge, rather than the jury, make any reduction of damages for comparative negligence. See OCGA § 5–5–24(a) (“[I]n all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”).

Consistent with the jury charge on comparative negligence, the verdict form that the trial court provided to the jury did not permit the jury, in the event that it found the case to be one of comparative negligence, to return a special verdict as to the percentage of fault attributable to Rush. Instead, the verdict form allowed the jury either to return a verdict for Rush in an amount specified by the jury or to return a verdict for Clark.⁴ Clark timely objected to the verdict form on the ground that it “just doesn't give a space for the jury to [assign a] percentage of fault to the plaintiff.” See Albert v. Albert, 164 Ga.App. 783, 785(5), 298 S.E.2d 612 (1982) (objection to special verdict form must be made before jury retires for deliberation).

On appeal, as she did below, Clark argues that the jury instruction on comparative negligence and the verdict form are inconsistent with OCGA § 51–12–33(a), and we think she is right. The current version of OCGA § 51–12–33(a), enacted in 2005, provides that if the jury concludes that the plaintiff was negligent, that his negligence contributed to his injuries, but that his negligence is less than that of the defendant, the jury must identify the percentage of fault attributable to the plaintiff and specifically report that percentage to the judge, who then must reduce the award of damages by the same percentage:

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.

OCGA § 51–12–33(a). The statute sets out this procedure for the reduction of damages for comparative negligence in clear and unambiguous terms.⁵ When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant, see Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga.App. 573, 577(1), 707 S.E.2d 921 (2011), and we must bear in mind that, “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211, 576 S.E.2d 880 (2003); see also Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407, 696 S.E.2d 640 (2010). We have suggested in dicta in several prior decisions that the current version of OCGA § 51–12–33(a) requires such a procedure, see note 1 supra, and we hold today that it does.

The statutory procedure for reducing a damages award for comparative negligence...