Couch v. Red Roof Inns, Inc., No. S12Q0625.

• Court: Georgia Supreme Court
• Writing for the Court: MELTON
• Citation: 729 S.E.2d 378,291 Ga. 359,12 FCDR 2159
• Parties: COUCH v. RED ROOF INNS, INC., et al.
• Decision Date: 09 July 2012
• Docket Number: No. S12Q0625.

291 Ga. 359
729 S.E.2d 378
12 FCDR 2159

COUCH
v.
RED ROOF INNS, INC., et al.

No. S12Q0625.

Supreme Court of Georgia.

July 9, 2012.

[729 S.E.2d 379]

Burke Blackwell Johnson, Buckley King LPA, Gainesville, for appellee.

Jacob Edward Daly, Sun S. Choy, Freeman, Mathis & Gary, LLP, Atlanta, for amicus appellee.

Charles Madden Cork, III, Macon, for amicus appellant.

Thomas A. Eaton, Michael L. Wells, University of Georgia School of Law, Andrew J. Hill, III, Blasingame Burch Garrard & Ashley, P.C., Athens, for neutral amicus.

MELTON, Justice.

[291 Ga. 359]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 discernable from the straightforward text of the statute.² The

[729 S.E.2d 380]

portion relevant to this case comes [291 Ga. 360]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

[291 Ga. 361]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 of 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

[729 S.E.2d 381]

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 S.E.2d 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 S.E.2d 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 [291 Ga. 362]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 dissent's 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, and to avoid a construction that makes some language mere surplusage.” Slakman v. Continental Cas. Co., 277 Ga. 189, 191, 587 S.E.2d 24 (2003). 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, 549, 489 S.E.2d 552, 555 (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. [291 Ga. 363]State v. Fielden, 280 Ga. 444, 448, 629 S.E.2d 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

[729 S.E.2d 382]

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 alterius”—“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.

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