David F. Walbert of Parks, Chesin & Walbert (left) and Chilton Davis Varner of King & Spalding.

Once again, Georgia's Supreme Court justices have been asked to decide the scope of the state's apportionment statute, this time pondering whether damages awarded under strict liability claims may be reduced by any amount deemed to have been the fault of the plaintiff.

Arguing via Zoom teleconference Tuesday morning, the lawyer for a man gravely injured when a defective brake caused him to crash his Suzuki motorcycle said the trial judge and Court of Appeals had brushed aside the state's strict liability statute in chopping a $12.5 million verdict in half after a jury apportioned 49% of the blame to the motorcyclist.

The Court of Appeals decision essentially rewrote the 2005 apportionment statute to hold the victims of defective products liable for their own injuries, said Parks Chesin & Walbert partner David Walbert.

"That decision is plainly wrong," he said. "You cannot look at the legislative record and come to any other conclusion."

Georgia's strict liability statute was passed years earlier "because the Legislature concluded that the existing negligence-based tort scheme was inefficient and inadequate," in order to "shift  responsibility off of the consumers and onto the shoulders of the manufacturers," Walbert said. 

Justice Keith Blackwell posited that, while a manufacturer has a responsibility to make a safe product, "the plaintiff still has a duty to exercise reasonable precautions for his own safety."

Why, he asked, shouldn't that duty be reflected in an allocation of fault?

Comparative negligence has never been a defense to strict product liability claims before or after the 2005 apportionment statute, Walbert said, and it bears no relation to the assignment of damages.   

In addition to Walbert, the plaintiffs are represented by Parks Chesin partner Jennifer Coalson, Randy Edwards and Paul Piland of Cochran & Edwards and John Sherrod of Douglasville's Sherrod & Bernard.

Representing Suzuki, King & Spalding partner Chilton Varner said the case involved a straightforward reading of the apportionment statute and relevant case law and that the lower courts' rulings constitute good public policy.

Quoting the statute, Varner emphasized its wording that the "'trier of fact … 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.' Period. Full stop."

"There is no exception for strict liability," Varner said.

The strict liability statute may have barred a contributory negligence defense, said Varner, but "we are not talking about contributory negligence. We are talking about the apportionment of fault."

"What the General Assembly gives, it can also take away," he said. 

Justice Charles Bethel raised a hypothetical: What if a jury found that a defendant breached his duty of strict liability but apportioned 50% of the fault to the injured plaintiff?

"So by your reading," asked Bethel, "even though [the defendant] may have been liable, they're essentially off the hook, right?"

"Yes," said Varner, who is handling Suzuki's appeal with firm partner Susan Clare. Their team also includes Michael Goldman and Zachary Wilson of Hawkins Parnell & Young and Randall Riggs and Jeff Mortier of Frost Brown Todd in Indianapolis. 

Amicus briefs were filed by the Georgia Association of Trial Lawyers Association in support of the plaintiffs and by the Georgia Association of Defense Lawyers for Suzuki.

Although the arguments centered on the apportionment in strict liability issue, the case is more complex. 

It began in 2013 when plaintiff Adrain Johns noticed the front brake on his 2006 GSX-R1000 felt "spongy" and bled the brake line to remove any air. Shortly afterward, he was attempting to stop for a tractor-trailer slowing on front of him when the brake failed. John lost control and suffered multiple injuries requiring spinal fusion and hand surgery. 

Johns sued Suzuki in Douglas County State Court for claims of strict liability for defective design, negligent failure to warn and negligent recall. His wife filed a loss of consortium claim. 

Following a 2018 trial before Judge W. O'Neal Dettmering Jr., the jury awarded Johns $10.5 million and his wife $2 million, apportioning 49% of the liability to Johns. 

Dettmering reduced the judgment to $6.4 million, ruling the apportionment statute applied to all the claims.  

Suzuki filed a motion for judgment notwithstanding the verdict, or a new trial, which Dettmering denied. Both sides appealed.

The Johns cross-claimed, asking the appeals court to reverse the apportionment and to add an extra $3.4 million in prejudgment interest because Suzuki had rejected an offer to settle for $10 million under Georgia's Unliquidated Damages Act. That statute allows interest to be added to the jury award if a settlement is rejected and the verdict is the same or higher than the offer.

The Court of Appeals ruled against both sides last June, finding the evidence supported the jury's finding against Suzuki on all claims. 

As to the Johns' claims, Judge Brian Rickman wrote that they were "premised upon the common law principle that a plaintiff's comparative negligence is not a defense to a product liability claim based upon strict liability."  

But he said that argument was in opposition to Georgia's apportionment statute, which states any damages awarded must be reduced by the percentage of fault attributed to the plaintiff. 

But Rickman conceded that it was "not immediately clear from the text of the statute" how it impacts claims for strict liability, writing that prior Supreme Court precedent supported a ruling that apportionment applies "despite its recognition of the long-standing common law rule against apportionment to intentional tortfeasors."

It was only the Johns' claims that the high court agreed to hear on appeal. 

In asking the justices to reverse the lower court, the plaintiffs lawyers wrote that the lower courts mistakenly used 2005's "unrelated change in apportionment law as a justification to bootstrap negligence considerations into strict product liability law."

According to their brief, the "issue here is a narrow one: whether an award based on strict products liability can be reduced for a plaintiff's negligence. What is not involved in this case is the apportionment of a jury's award of damages."

Not so, countered Suzuki's brief, which said the case was a straightforward interpretation of the apportionment statute.

"There is nothing radical (or even remarkable) about the lower courts' application," it said. 

"Although the Georgia Supreme Court has not yet specifically applied the apportionment statute to a damages award based, in part, on strict liability claims, the Court has issued multiple decisions that unmistakably show apportionment is applicable to strict liability cases," Suzuki's lawyers argued. 

The plaintiffs' brief "largely rehashes the same arguments that were considered (and rightly rejected) by both the trial and appellate courts," it said. "Like those courts, this court should hold that plaintiffs' award is subject to apportionment."