A small victory for property owners took place in the legal arena this summer. In July, Georgia’s Supreme Court upheld the validity of a key tort reform law that permits juries to consider “the fault of [a personal injury plaintiff’s] assailants and apportion the amount of the damages based on the percentage of all those responsible for the attack.” The court also said a jury can receive a special verdict form requiring it to decide how much the [property owners] and “the assailants should pay, should the jury find them liable,” according to a report in the Atlanta Journal-Constitution.
By an overwhelming vote of 5-2, the high court made this decision in response to a case involving an Atlanta Red Roof Inn hotel owner and a patron who was attacked on the hotel’s premises by persons unknown. The victim sued the “owners for failing to keep their premises safe and provide adequate security.” Property owners are, of course, delighted that the tort reform law has been upheld, as it drives down costs for what they often deem to be unfortunate circumstances over which they have absolutely no control. Personal injury plaintiffs’ attorneys are concerned, however, that this ruling will have the unfair result of preventing victims from being “fully compensated for their injuries.”
Their concerns are definitely valid. Adequate compensation can balloon into a huge issue when damages in premises liability cases are divvied up between both the owner and assailant, especially if the victims’ attacker cannot be identified. The logic is simple: an anonymous assailant cannot be held culpable, cannot be brought before a judge, and thus cannot be compelled to pay for the harm they cause. The result in instances like these is that the plaintiff only gets half of the reparations that he or she is due. And how is this fair?
The general rule in tort law has traditionally been that a property owner owes certain groups who visit his premises a particular duty of care. A visitor to a property typically falls into one of three categories: invitee, licensee or trespasser. The level of care owed to a visitor by the property owner varies according to the visitor’s status. An invitee is owed the greatest duty of care. If an owner or occupier of a premises, either expressly or impliedly induces persons to come upon his premises for any lawful purpose, he is liable to the invitee for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.
A licensee is neither a customer, a servant, nor a trespasser; does not have a contractual relationship with the owner of the premises; and is permitted, whether expressly or impliedly, to enter the premises for his own interests, convenience, or gratification. In such cases, the owner or occupier of the land is liable to a licensee only for occurrences of willful or wanton injury.
A trespasser enters the premises of another without the permission of the owner. If the property owner has no reason to anticipate the trespasser’s presence, his duty is not to allow pitfalls or on his property or to willfully or wantonly injure the trespasser.
In light of these varying degrees of care, it stands to reason that when found to be legally liable and in violation of that duty by a court, the property owner should subsequently have to pay for his failure. But alas, Georgia’s high court appears to steadfastly disagree. That means that damage awards to plaintiffs in premises liability cases will continue to be apportioned between property owners and assailants, for now.