Clark v. Rush
312 Ga. App. 333
| Ga. Ct. App. | 2011Background
- This case asks whether the pattern jury instruction on comparative negligence remains accurate after OCGA § 51-12-33(a) (Tort Reform Act of 2005).
- OCGA § 51-12-33(a) requires the jury to determine the plaintiff's fault percentage and the judge to reduce damages by that percentage.
- The trial court used the pattern comparative-negligence instruction and a verdict form that did not allow a special verdict of fault percentage.
- Clark objected to both the instruction and verdict form; the jury awarded Rush $20,000.
- Evidence showed Rush may have been negligent (e.g., driving fast) and Clark may have been at fault as well, with eyewitness testimony conflicting.
- The court held the pattern instruction and Underwood-based charge are superseded by OCGA § 51-12-33(a) and reversed for a new trial with proper statutory procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pattern instruction complies with OCGA 51-12-33(a). | Rush argues the pattern charge mirrors prior law and the statute requires a judge-led, percentage-based reduction. | Clark argues the pattern charge conflicts with the statute that mandates jury identification of fault percentage and a judge's reduction. | No; the pattern instruction misstates the law under 51-12-33(a) and must be replaced. |
| Whether the verdict form allowed proper implementation of the statute. | Rush contends the form failed to capture the required fault percentage to be reported to the judge. | Clark contends the form does not comply with the percentage-based reduction mandated by the statute. | No; the verdict form did not permit a special verdict of fault percentage as required. |
| Whether the trial errors were harmless given the evidence. | Rush argues the errors could have affected the verdict. | Clark asserts no such prejudice shown. | Reversed for a new trial because harmless error cannot be presumed. |
Key Cases Cited
- Whelan v. Moone, 242 Ga. App. 795 (Ga. App. 2000) (pattern instruction approved before 2005 Act)
- Underwood v. Atlanta &c. R. Co., 105 Ga. App. 340 (Ga. App. 1962) (pattern charge basis; superseded by statute)
- Atlanta &c. R. Co. v. Underwood, 218 Ga. 193 (Ga. 1962) (reversed in part; contextual reliance for pattern charge)