The Georgia Supreme Court on Monday upended more than a decade of case law, ruling that someone who helped cause a drunk-driving accident but was not the DUI driver could still be considered an "active tortfeasor" liable for uncapped punitive damages.

The unanimous decision by Justice Michael Boggs held that whether someone is an "active" or "passive" tortfeasor is a question for the jury or factfinder. Justice Charles Bethel issued a concurrence, urging the Legislature to "consider whether our interpretation of [statutory] language is, in fact, the desired law of Georgia."                                  

While the case at hand involved a man who had been drinking and loaned his car to his drinking buddy, one of the lawyers who argued the plaintiff's case said it changes the legal landscape for third-party negligence, dram shop and "plenty of other tort cases in Georgia."

"The question before was whether somebody who serves somebody—a restaurant, bartender, even a social host—who obviously shouldn't be driving is also liable for uncapped punitive damages," said Summerville Firm principal Darren Summerville.

"Those cases went away with this decision," he said, adding that a jury will decide if somebody who acts with culpable liability should be on the hook. "The opinion is clear that it doesn't have to be the drunk driver, but anyone who is impaired."

Summerville and firm colleague Max Thelen were recruited by the Georgia Trial Lawyers Association to assist plaintiff's lawyer Scott Harrison of Monge & Associates on the appeal.

Neither of the defendants in the case was represented by counsel, and the Supreme Court also requested briefs and arguments from the office of Attorney General Chris Carr and the Georgia Defense Lawyers Association.

As detailed in the opinion and briefs, the case began in 2016 when Keith Stroud and Lakenin Morris were drinking in Griffin one afternoon. 

"Stroud asked Morris to drive his car and gave him the keys even though Morris was obviously drunk and Stroud knew that Morris was drunk, did not have a valid driver's license, and had a habit of recklessness," Boggs' opinion said. 

Morris, who would later plead guilty to DUI, hit a car driven by Alonzo Reid.

Reid sued Morris for negligence and Stroud for negligent entrustment in Spalding County State Court, "and both were found liable for Reid's injuries (Morris by default and Stroud by summary judgment)," Boggs wrote.   

Following a bench trial, Judge Josh Thacker awarded more than $23,000 in compensatory damages, which he apportioned equally between the defendants.

Thacker also found that they had "acted in a manner that showed willful misconduct, malice, wantonness, and that 'entire want of care which would raise the presumption of conscious indifference to consequences,'" justifying punitive damages.

The judge ordered the driver, Morris, to pay $50,000 in punitive damages, the exact amount that Reid requested.

In the decision leading to the high court case, the judge declined Reid's request for $100,000 in punitive damages against Stroud, despite finding that Stroud had acted while under the influence "and engaged in conduct susceptible to punitive damages."

Thacker based his decision on the Georgia Court of Appeals' 2007 ruling in Capp v. Carlito's Mexican Bar & Grill, 288 Ga. App. 779; and 2017's Corrugated Replacements Inc. v. Johnson, 340 Ga. App. 364.

Thacker understood those decisions to hold that the punitive damages statute's definition of "active tortfeasor" referred to "the DUI driver and this is the only person the statute authorizes an award of punitive damages against." 

Reid argued that such an interpretation violated the Georgia Constitution's guarantee that the "right to trial by jury shall remain inviolate," but Thacker rejected that challenge. Reid appealed.

In reversing Thacker, Boggs laid out the legislative background of Georgia's apportionment statute and punitive damages regime, noting that 1987's tort reform law capped some punitive damages at $250,000, while others including those arising from product liability claims were left uncapped.  

But there was no limit on cases in which a defendant was found to have acted, or failed to act, "with the specific intent to cause harm," he noted.

In 1997, the law was amended so that a defendant found to have been under the influence of alcohol or illegal drugs "to that degree that his or her judgment is substantially impaired" could be subjected to unlimited punitive damages as an "active tort-feasor."

The law "does not define the term 'active tort-feasor,' but from the beginning … has made a distinction between tort defendants who 'acted' and those who 'failed to act.' The text thus suggests that an "active tort-feasor" is a defendant who engages in an affirmative act of negligence or other tortious conduct, as opposed to a defendant whose negligence consists of an omission to act when he is under a legal duty to act," Boggs wrote.

In this case, he said, "the question is not whether [Stroud] was the DUI driver (or even whether a DUI driver was involved in the case). The question is whether the defendant was intoxicated to the degree that his judgment was substantially impaired and whether his conduct was a proximate cause of the plaintiff's injury."

While precedent held that the DUI driver alone is the "active tort-feasor," said Boggs, "there is no such categorical rule," and to the extent other cases suggest otherwise, "they are hereby disapproved."

"Accordingly," he said,"we must vacate the trial court's judgment to the extent that the court failed to consider awarding punitive damages against Stroud and remand the case for further consideration."

In his concurrence Bethel, a former state senator, said he "suspect[s] that the 'active' modifier addressed by the court was not meant to delineate between tort-feasors whose torts involved affirmative acts and tortfeasors whose torts involved a failure to act.

"I generally doubt that the General Assembly intended to exclude from enhanced liability            exposure a tort-feasor who was shown to have personally intended a harm but whose tort involved the withholding of some act compelled by a legal duty, while subjecting a similarly malicious tort-feasor whose breach of duty involved an affirmative act to such liability.

"But," wrote Bethel, "suspicion and doubt are not proper tools for appellate judges."

 The AG's brief, submitted by Solicitor General Andrew Pinson, Ross Bergethon, Kurtis Anderson and Elizabeth A. Penland, agreed that Thacker had misinterpreted the law, but argued that the constitutional question should not have been before the justices at all.

In an emailed statement, GDLA President Jeff Ward thanked the court "for the invitation to weigh in on the constitutionality of Georgia's punitive damages statute." Ward said the group agreed with the court that the constitutionality issue "did not need to be reached."

GDLA's amicus counsel, Drew Eckl & Farnham partner Elissa B. Haynes and Hawkins Parnell & Young partner Marty Levinson "wrote a terrific brief on our behalf," Ward said.

Given the defendants' minimal participation in the litigation, the Daily Report asked the winning plaintiffs lawyers whether any judgment will be collectible.

"We do intend to recover all of the damages in this case," said Harrison via email.

"Because the insurer has denied coverage, it will likely involve filing a [declaratory judgment] against the involved insurer after we obtain a final judgment against both defendants," he said. "Now that the Supreme Court has clarified that there can be a punitive-damages verdict entered against the negligent entrustor (Stroud), we anticipate getting that final judgment very shortly."