Durham v. Dollar Tree Stores, Inc.

• Decision Date: 23 June 2021
• Docket Number: A21A0624
• Citation: 360 Ga.App. 548,859 S.E.2d 620
• Court: Georgia Court of Appeals
• Parties: DURHAM v. DOLLAR TREE STORES, INC. et al.

360 Ga.App. 548

859 S.E.2d 620

DURHAM

v.DOLLAR TREE STORES, INC. et al.

A21A0624

Court of Appeals of Georgia.

June 23, 2021

Reconsideration Denied July 9, 2021

Certiorari Denied January 11, 2022

Erica Durham, for Appellant.

Rebecca E. Strickland, Nelofar Agharahimi, Atlanta, for Appellee.

Markle, Judge.

Erica Durham filed this premises liability action against Dollar Tree Stores, Inc., and Superior Floorcare Services, LLC, after she slipped and fell in a Dollar Tree store in 2016.¹ Following a trial, the jury found the defendants were negligent and awarded damages, but also found Durham 50 percent at fault. As a result, the trial court reduced Durham's damages to $0 under OCGA § 51-12-33 (g). Durham now appeals, arguing that the trial court erred by issuing an incomplete jury instruction on apportionment, and that the proceedings were tainted when a juror fell asleep during the trial. For the reasons that follow, we reverse the trial court's denial of the motion for new trial, and remand the case for further proceedings.

Viewing the evidence in the light most favorable to the verdict, Clements v. Weaver , 301 Ga. App. 430, 687 S.E.2d 602 (2009), the record shows that, while visiting family in Georgia in 2016, Durham went shopping at a Dollar Tree in Stockbridge shortly before the store closed. As she walked through an aisle, she slipped and fell on a wet spot. The assistant manager called 911, and Durham was transported to the hospital. As a result of the fall, Durham suffers from continued lower back pain, and pain in her shoulder, left leg and knee.

Durham filed the instant complaint against Dollar Tree and Superior Floorcare, alleging premises liability, vicarious liability, and negligent training and supervision.² At trial, the jury heard Durham's testimony as to the incident and the resulting injuries. Durham also submitted her medical records detailing various emergency room and doctor visits, which also showed lapses in treatment in excess of six months. The chiropractor who treated Durham testified that Durham often missed appointments and was non-compliant with the treatment plans.

The trial court instructed the jury that if the damages were caused by more than one defendant, the jury should apportion fault among the parties who were liable, including Durham, without deducting from the amount of damages. It further advised the jury that "[i]f you should determine from the evidence that the Plaintiff failed to use ordinary care and this failure was the sole proximate cause of the Plaintiff's injuries, then the Plaintiff could not recover[.]" It did not, however, charge the jury that Durham would recover nothing if found to be at least 50 percent liable.

The jury found that a hazard existed, that the defendants knew of it, and that they were negligent. But the jury also found that Durham was contributorily negligent, and it apportioned her fault as 50 percent, with 25 percent fault attributed to each of the defendants. It awarded Durham $8,976 in damages, which the court remitted to zero under OCGA § 51-12-33 (g) due to the jury's finding that Durham was 50 percent responsible. Durham moved for a new trial, which the trial court denied after a hearing.³ Durham now appeals.

1. Before we turn to the arguments raised on appeal, we are obligated to consider our jurisdiction over this appeal. Pathfinder Payment Solutions, Inc. v. Global Payments Direct, Inc. , 344 Ga. App. 490, 810 S.E.2d 653 (2018) ; Forest City Gun Club v. Chatham County , 280 Ga. App. 219, 220, 633 S.E.2d 623 (2006). The defendants argue that we should dismiss the appeal because Durham was required to file an application for discretionary appeal under OCGA § 5-6-35 (a) (6) after the jury awarded damages of less than $10,000. We conclude that jurisdiction is proper.⁴

In determining that we have jurisdiction, we turn to our appellate jurisdiction statutes, "afford[ing] the text its plain and ordinary meaning, viewed in the context in which it appears, and read in its most natural and reasonable way." (Citation and punctuation omitted.) Carpenter v. McMann , 304 Ga. 209, 210 (I), 817 S.E.2d 686 (2018).

Although generally, a final judgment is directly appealable, that right is subject to the limitations in our discretionary appeals provisions. See OCGA § 5-6-34 (a) (1) ; Pathfinder Payment Solutions, Inc. , 344 Ga. App. at 490, 810 S.E.2d 653. Under OCGA § 5-6-35 (a) (6), a party must file an application for discretionary appeal to pursue an appeal "in all actions for damages in which the judgment is $10,000.00 or less[.]" A "judgment" for the purposes of OCGA § 5-6-35 (a) (6) is the "final result " of the claim for damages. (Emphasis supplied.) City of Brunswick v. Todd , 255 Ga. 448, 449, 339 S.E.2d 589 (1986). As our Supreme Court has explained,

in OCGA § 5-6-35 (a) (6), the General Assembly has expressed the clear intent to require an application to appeal when the judgment at issue is between one cent and up to and including the statutory maximum, which presently is $10,000; the purpose of the statute is to limit appeals in those cases where the factfinder has decided that the damage involved was $10,000 or less.... [O]ne cent was chosen rather than zero because a ‘take nothing’ verdict often reflects the jury's decision on liability issues rather than a determination that the damage involved was low.

(Citations and punctuation omitted.) Cooney v. Burnham , 283 Ga. 134, 136, 657 S.E.2d 239 (2008).

We have never addressed whether the discretionary appeal procedures applied where, as here, the trial court reduced the jury's damage award under the apportionment statute. Thus, we must determine the effect of the apportionment provision on Durham's right to appeal.

This Court has consistently held that a verdict in favor of the plaintiff but awarding zero damages is, in legal effect, a defendant's verdict making the judgment directly appealable. Moore v. TCI Cablevision of Georgia, Inc. , 235 Ga. App. 796, 798 (1), 510 S.E.2d 96 (1998) ; see also Pathfinder Payment Solutions, Inc. 344 Ga. App. at 492, 810 S.E.2d 653 (recognizing that " OCGA § 5-6-35 (a) (6) applies to actions in which the judgment at issue is from one cent through $10,000, but does not apply to so-called ‘zero judgments’ or situations of ‘zero recovery.’ ") (citations omitted; emphasis in original).

In contrast, in cases involving set offs, we consider the amount of damages the jury awarded and not the amount left after the trial court's reduction. See Bales v. Shelton , 260 Ga. 335, 391 S.E.2d 394 (1990) ; Eberhardt v. Ga. Farm Bureau Mut. Ins. Co. , 223 Ga. App. 478, 477 S.E.2d 907 (1996). As our Supreme Court explained, "set-offs to the judgment that arise from some collateral source – such as prior payments, or pre-existing debts – do not help to ascertain the price tag for the injury involved in the action. Therefore, such set-offs should not be considered when deciding whether an application for appeal is necessary." (Footnote omitted.) Bales , 260 Ga. at 335, 391 S.E.2d 394. Notably, "[r]eductions in the damages arising from comparative negligence ... are not set-offs[.]" Id. Regardless, this rationale would not apply where the final result is effectively a defense verdict because the award is zero. See Moore , 235 Ga. App. at 798 (1), 510 S.E.2d 96 ; Pathfinder Payment Solutions, Inc. , 344 Ga. App. at 492, 810 S.E.2d 653.

Consistent with our view of the "judgment" as the final result, and considering the legislature's intent that zero judgments be directly appealable, we conclude that a direct appeal lies where, as here, the final result is that the plaintiff takes zero due to the apportionment of fault. We now turn to Durham's arguments on appeal.

2. Durham first argues that the trial court erred in its instruction on apportionment because it failed to inform the jury that she would recover nothing if it found her at least 50 percent liable. She contends that we may address her claim despite the fact that she did not object to the instructions at trial, and that the instruction as given was harmful as a matter of law. The defendants argue that Durham waived her right to raise this issue by acquiescing to the jury charges, and that her failure to object to the instruction at trial or in a motion for new trial precludes our review. We conclude that Durham is not precluded from raising this issue, and that the charge as given was erroneous and prejudicial.

Under OCGA § 5-5-24 (c), "[n]otwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not." But, we will not review for substantial error if the appellant induced the error or acquiesced in it. Moody v. Dykes , 269 Ga. 217, 219-220 (3), 496 S.E.2d 907 (1998).

Here, Durham's failure to object at trial does not prevent us from considering her claim of error because the record does not establish that she induced the error or acquiesced to the charges as given. See OCGA § 5-5-24 (c). Durham did not object to the charges, but the charge conference was not transcribed, and there are no written instructions in the record. In ruling on the motion for new trial, the trial court found only that Durham had not objected to the jury instruction, and that there was no harmful error in them. On this record, without more, we cannot conclude that Durham affirmatively waived or acquiesced to any error in the instructions as given.⁵ Maki v. Real Estate Expert Advisors, Inc. , 358 Ga. App. 337, 338–40 (1), 855 S.E.2d 72, 75-76 (1) (2021) ; see also Pearson v. Tippmann Pneumatics, Inc. , 281 Ga. 740, 743 (1), 642 S.E.2d 691 (2007) (mere failure to object is not inducing error); Compare Irvin v. Oliver , 223 Ga. 193, 195-196 (2), 154 S.E.2d 217 (1967) (counsel acquiesced to error in instruction by addressing instruction with the...