Balance the Scales

Kyle Wingfield column: Georgia Legislature must address tort reform

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PICTURE: Governor Brian Kemp mingles with attendees after his introduction of businesswoman Kelly Loeffler as his pick to fill Georgia’s vacant U.S. Senate seat at the Georgia State Capitol on Wednesday, Dec. 4, 2019, in Atlanta, Ga. (AP Photo/Elijah Nouvelage)

Georgia has earned a new distinction, and it’s not a good one. For the first time, our state is listed among the nation’s “Judicial Hellholes” by the American Tort Reform Foundation.

The group’s latest report describes places where defendants in civil lawsuits are treated “in an unfair and unbalanced manner.” Those defendants most often are businesses targeted for various types of liability and doctors sued for medical malpractice.

Given Georgia’s efforts to be the best state for doing business, it’s surely unwelcome to be ranked as the sixth-worst “judicial hellhole” – better than only (in ascending order) St. Louis, Louisiana, New York City, California and the Philadelphia Court of Common Pleas. That’s bad company to keep.

The report notes conditions in Georgia “have rapidly deteriorated over the past few years. ... The legislature must take immediate action to improve the legal environment if Georgia hopes to be removed from the list anytime soon.”

Some of the cases cited are more nuanced than advertised, but at a minimum they illustrate the proverbial “slippery slope.”

Consider a 2017 ruling by the Georgia Supreme Court affirming Six Flags Over Georgia’s liability for an attack on three men who were waiting for a bus on the edge of the amusement park’s property, resulting in a $35 million verdict. In that case, the evidence indicated the company knew many of its patrons – and perhaps a “majority” of its employees – had ties to gangs, and it failed to react adequately. That included giving a mere reprimand earlier in the day to the same “throng of young men roaming the park” who committed the attack.

Given those facts, holding the company liable in that case may not be outrageous. But now consider a trio of cases decided earlier this year:

A Navy veteran was awarded almost $70 million from Kroger after being shot during a robbery and carjacked by two men in the parking lot of one of its stores. The store had security personnel in the store, but not in the parking lot.

The Court of Appeals reversed a summary judgment in favor of Global Parts, an auto-parts dealer that leased spaces to trucking companies. The court found that, because the company knew a number of thefts had occurred in the lot, a carjacking in the lot that left a truck driver badly wounded was “foreseeable.”

A jury ordered CVS to pay $43 million to a man who was shot in the parking lot of one of its stores – even though the store was closed, and the man was there to make a private purchase unrelated to the store – because employees had previously expressed fears for their safety, and one worker had been robbed at gunpoint. Jurors apparently thought the store should provide security even while closed.

Notably, those three incidents all happened within a 3.8-mile stretch of Moreland Avenue in southeast Atlanta; should the verdicts all stand, one wonders why any business in the area would keep operating there. Yet, the repercussions could reach far wider if the Six Flags precedent applies to a business that wasn’t even open during an incident on its property.

More broadly, the report describes an (ahem) explosion in so-called nuclear verdicts that award seemingly disproportionate sums to plaintiffs. It also warns that the Georgia Supreme Court’s 2010 decision to throw out as unconstitutional a cap on noneconomic damages in medical malpractice cases has resulted in “a steady rise” and “new shocking highs” for jury awards in such cases.

The slippery slope is a problem, but to a large extent the courts are simply applying the law as passed by legislators. Business groups have complained for years that trial lawyers get almost anything they want from the General Assembly.

Actions have consequences. Reining in some of this legislative largesse ought to be a priority for lawmakers starting next year if Georgia is to remain a state that’s open for business.

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Kyle Wingfield is president and CEO of the Georgia Public Policy Foundation. Contact him through the group’s website at georgiapolicy.org.