Court of Appeals Strikes Down Comparative Negligence Pattern Charge   Leave a comment

The Georgia Court of Appeals has struck down the pattern jury charge on comparative negligence that has been in use for decades. 

In Clark v. Rush, Case No. A11A1418 (Ga. Ct. App., Nov. 1, 2011), a Georgia Plaintiff was allegedly injured in a car wreck when Defendant pulled out in front of her. The Defendant argued the Plaintiff was speeding and was thus partly at fault for the wreck.

The trial judge gave the pattern jury instruction on comparative negligence. This charge instructs the jury that if it finds the plaintiff was at fault, but less at fault than the defendant, the jury is to reduce its award “in proportion to” the plaintiff’s negligence. But the jury was not given a special verdict form allowing it to specify the percentage of fault attributable to the plaintiff. Defendant’s attorney timely objected to the charge and the verdict form. The jury awarded Rush $20,000, and Defendant appealed.

The Court of Appeals agreed that the pattern jury instruction is now erroneous after passage of the Tort Reform Act of 2005. O.C.G.A. § 15-12-33(a) now requires the jury to assign a specific percentage of fault to the plaintiff, and, according to the Court of Appeals, requires a special verdict form whereby the jury allocates a specific percentage of negligence, so that the judge can reduce the award accordingly.  The case was sent back for retrial.

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