The Subrogation Strategist

Many states, finding that the purpose of the strict liability doctrine is to protect otherwise defenseless victims from defective products, hold that principles of comparative negligence do not apply to strict liability actions. Georgia is not one of those states. In Johns v. Suzuki Motor of Am., S19G1478, 2020 Ga. LEXIS 760, the Supreme Court of Georgia recently held that Georgia’s comparative fault statute, OCGA § 51-12-33, applies to strict products liability claims brought pursuant to Georgia’s product liability statute, OCGA § 51-1-11.

As stated in Johns, Adrian Johns (Johns) was injured in August of 2013 when the front brake on his Suzuki motorcycle failed. He sued Suzuki Motor Corporation and Suzuki Motor of America, Inc. (collectively, Suzuki), asserting, among other claims, a claim of strict products liability. At trial, Johns and his wife presented evidence showing, among other things, the front master brake cylinder was defective and that about two months after the accident, Suzuki issued a recall notice warning about a safety defect in the front brake master cylinder. Johns admitted, however, that he did not follow the instruction in Suzuki’s owner’s manual to replace the brake fluid every two years, and that he had not changed the fluid in the eight years that he owned the motorcycle.

At trial, the jury awarded Johns and his wife a total of $12.5 million in compensatory damages, but apportioned 49% of the fault to Johns and 51% of the fault to Suzuki. Thus, the trial court reduced the plaintiffs’ award to $6,375,000. Suzuki appealed, and the Johnses cross-appealed. The Johnses argued that, because their claim was based on strict products liability, the trial court erred in reducing their damages award based on OCG § 51-12-33(a). The Court of Appeals affirmed the award and the Supreme Court of Georgia granted certiorari to decide whether OCG § 51-12-33(a) applies to a strict liability claim brought under OCGA § 51-1-11.

The legislature enacted § 51-12-33(a) in its current form in 2005. In pertinent part, § 51-12-33(a) states:

Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact
. . . shall determine the percentage of fault of the plaintiff . . . .

As stated by the court, when read together with § 51-12-33(g), which states that the plaintiff is not entitled to recover if the plaintiff is 50% or more responsible, codifies Georgia’s comparative negligence doctrine.

The Johnses, relying on a line of Georgia precedent holding that principles of comparative negligence do not apply to strict liability claims, argued that the court should read an exception into the statute for strict liability claims. The court rejected this argument, noting that the cases on which the Johnses relied pre-dated the 2005 enactment of § 51-12-33(a). As noted by the court, § 51-12-13 is not framed in terms of negligence. Rather, it focuses on the plaintiff’s “responsibility” and “fault” for the injury at issue. Stating that “fault” is not synonymous with negligence and comparative fault principles are not incompatible with a strict liability claim, the court followed the plain language of the statute. Thus, the court found that the trial court properly reduced the Johnses’ verdict by Johns’ comparative fault.

The Johns case is an important reminder for subrogation professionals that, although many jurisdictions do not apply comparative negligence principles to strict products liability claims, some states will apply comparative negligence principles to a strict products liability claim. This is particularly true where, as in Georgia, the legislature has not specifically mandated that comparative negligence principles do not apply to strict liability claims. Cf. Conn. Gen. Stat. § 52-5721 (stating that comparative negligence is not a bar to recovery in a strict liability action).