GEORGIA POWER CO v. RIES (2026)

In October 2020, Christine Ries sustained injuries when she fell down a staircase while leaving her condominium at Ansley Walk Terrace. Ries filed suit against the Ansley Walk Condominium Association, Inc., and Georgia Power Company asserting claims of negligence against both parties and a claim of premises liability against Ansley Walk. A jury found in favor of Ries and awarded her $8.5 million in damages. In its verdict, the jury assigned percentages of fault to Georgia Power, Ansley Walk, Ries, and a non-party, Reaves Construction, Inc.

In related appeals, Ansley Walk (Case No. A25A1776) and Georgia Power (Case No. A25A1761) challenge the judgment entered on the verdict for various reasons, none of which have merit. They both argue that the trial court erred in failing to direct a verdict in their favor, but we find that the evidence supported the jury's verdict. Ansley Walk also challenges an evidentiary ruling, but we find no abuse of discretion by the trial court. Ansley Walk argues that the jury's award of $8.5 million in damages was excessive, but the trial evidence does not support that argument. Finally, both Ansley Walk and Georgia Power argue that the trial court erred in the way it treated the percentage of fault that the jury assigned to Ries when the trial court apportioned damages under OCGA § 51-12-33, but we find that the trial court correctly applied that percentage in its calculation.

In a cross-appeal, Ries also challenges the judgment entered on the verdict (Case No. A25A1775). She argues that the trial court erred by allowing the jury to assign fault to non-party Reaves Construction. We agree, so we vacate the judgment that the trial court entered in all three cases and we remand for the trial court to enter a new judgment in accordance with this opinion.

Given this disposition, we do not reach the other claims of error asserted by Ries in her cross-appeal.

1. Directed verdict

Both Ansley Walk and Georgia power argue that the trial court erred by failing to direct a verdict in their favor.¹ On appeal from the denial of a motion for directed verdict, “we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury's verdict.” Old Republic Nat'l Title Ins. Co. v. RM Kids, 337 Ga. App. 638, 648(5), 788 S.E.2d 542 (2016) (citation modified). “[W]e must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.” Id. (citation modified).

So viewed, the evidence presented at trial showed as follows. Ansley Walk Terrace is a condominium consisting of 32 units; Ansley Walk Condominium Association is responsible for, among other things, keeping the common areas safe and maintaining and repairing the common elements. In 2012, Ansley Walk hired Reaves Construction to fix the risers and treads on the staircase for Ries's unit because they were not to code. Ansley Walk did not get a permit for the project, which was initially meant to simply remodel the staircase but ultimately required that the stairs be demolished and rebuilt because the existing structure could not be brought up to code. The project was eventually completed in 2013, and the stairs were completely rebuilt without handrails.

Ansley Walk also leased certain outdoor pole lights from Georgia Power, including the light near the staircase to Ries's condominium unit. Georgia Power was responsible for repairing or replacing the pole lights if a customer reported an outage. the technicians at Georgia Power were trained to respond to such outages within three to five business days.

In the three months leading up to the incident, Ries had not been living in her condominium. On October 8, 2020, during Ries's absence, an Ansley Walk Terrace resident notified the association board via email that the pole light near Ries's building was out. Approximately one week later, on either October 14 or October 16, Ansley Walk contacted Georgia Power to ask it to fix the light. No one at Ansley Walk notified Ries that the pole light outside of her building was not working.

Ries returned to her condominium at 6:00 p.m. on October 21, 2020. She left the condominium about half an hour later, when it was still daylight, and returned around 9:00 p.m., at which point it was dark outside. Ries testified that she “didn't notice anything different” and that she “just walked in and walked up the stairs” to her condominium. Around 10:00 p.m. Ries left again to take her dog out. Her porch light was on, as well as her neighbor's porch light. Ries testified that when she started walking down the stairs, “it was absolutely normal and then all of a sudden there was no light.” Ries thought that she was at the bottom of the stairs and that “the safest thing [was] to just step off of the landing.” But she was not at the bottom of the stairs. Instead, she fell down the last two steps. Ries suffered a leg fracture that required two surgeries and physical rehabilitation, and even after treatment she walked with a cane and has a physical weakness in her thigh that is a permanent injury.

On October 23, 2020, two days after Ries's fall, Georgia Power repaired the light.

After Ries filed her lawsuit, Ansley Walk became aware that the staircase was not built to code. An expert testified at trial that the rebuilt staircase violated relevant building codes, including the lack of a code-compliant handrail. The expert also testified that Ansley Walk was required to get a permit for the 2013 staircase rebuild.

(a) The trial court did not err in failing to direct a verdict in favor of Ansley Walk (Case No. A25A1776)

Ansley Walk argues that it was entitled to a directed verdict because, given Ries's prior traversal of the stairs, Ries had equal or superior knowledge of the hazard, which was a static defect. We disagree. As we have previously explained,

[w]hat differentiates a claim involving a static condition from other slip and fall cases is that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom. This rule is referred to as the prior traversal rule. Nevertheless, the prior traversal rule applies only to cases involving a static condition that is readily discernible to a person exercising reasonable care for his own safety.

N. Fulton Cmty. Charities v. Goodstein, 367 Ga. App. 576, 582(1), 887 S.E.2d 646 (2023) (citation modified). Moreover, “it is the plaintiff's knowledge of the specific hazard precipitating a trip and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or hazardous conditions which plaintiff observes and avoids.” Rutherford v. Revco Disc. Drug Ctrs., 301 Ga. App. 702, 704, 689 S.E.2d 59 (2009) (citation modified).

Here, the evidence authorized a finding that, on the night of her injuries, Ries had been absent from the property for months; that Ansley Walk knew the pole light near Ries's building was out prior to her fall but had failed to inform Ries of that fact; and that Ries had only navigated the staircase once in the dark prior to her fall, walking up the stairs instead of down. See Rutherford, 301 Ga. App. at 704, 689 S.E.2d 59 (holding that prior traversal claim failed, in part, because plaintiff had not navigated a ramp's decline before her fall, noting that “going up a ramp is obviously very different from coming down a ramp”). Further, “[v]iolations of codes and regulations may be negligence per se, and evidence of nonconformity with code standards may be proof of a landowner's superior knowledge of a defect under OCGA § 51-3-1.” Hall v. Noble-Interstate Mgmt. Group, 349 Ga. App. 661, 664(1), 824 S.E.2d 705 (2019) (citation modified). There was no evidence presented at trial that Ries had any knowledge that the staircase was not built to code; meanwhile, Ries presented evidence that Ansley Walk had the staircase rebuilt without a permit and that the rebuilt staircase still violated the building codes. Consequently, we cannot say that there was no evidence to support the jury's verdict, and so the trial court did not err in denying Ansley Walk's motion for a directed verdict.

(b) The trial court did not err in failing to direct a verdict in favor of Georgia Power (Case No. A25A1761)

Georgia Power argues that the trial court erred by failing to direct a verdict in its favor on the issue of negligence for three reasons: (a) because Ries had equal or superior knowledge of the hazard based on her prior traversal of the stairs in the same lighting conditions; (b) because Ries failed to prove that “the single light pole being out” caused her fall; and (c) because Ries failed to present any evidence that Georgia Power breached a duty. We are not persuaded by any of these arguments.

(i) Ries's equal or superior knowledge of a static condition

Georgia Power asserts that it was entitled to a directed verdict because, prior to her fall, Ries had equal or superior knowledge of a static condition that she had previously traversed. This claim fails for two reasons.

First, Ries's equal or superior knowledge of a static condition was irrelevant to her negligence claim against Georgia Power. Because Georgia Power was not an owner or occupier of the property, Ries's claim against it sounded in ordinary negligence, not premises liability. “Outside the context of premises liability, power companies owe a general duty of ordinary care in the construction and maintenance of their wires, poles, transformers and equipment, and they may be held liable for breaches of that duty regardless of who owns the land at issue.” Ga. Power Co. v. Triola, 364 Ga. App. 60, 63, 873 S.E.2d 737 (2022) (citation modified). The prior traversal doctrine, under which a person is presumed to have equal knowledge of a static condition that they previously had successfully negotiated, see N. Fulton Cmty. Charities, 367 Ga. App. at 582(1), 887 S.E.2d 646, applies to premises liability claims, but not claims for breach of a general duty of ordinary care. See Byrom v. Douglas Hosp., 338 Ga. App. 768, 771-72(2), 792 S.E.2d 404 (2016) (explaining that the equal-or-superior-knowledge analysis does not apply to claims of active negligence governed under ordinary negligence principles). See also Gervin v. Retail Prop. Trust, 354 Ga. App. 11, 12-14(1), 840 S.E.2d 101 (2020) (explaining the application of the prior traversal doctrine to premises liability claims).

Second, even if Georgia Power were permitted to argue premises liability defenses, such as the prior traversal doctrine, against a claim for ordinary negligence, the evidence authorized the jury to find that Ries did not have equal or superior knowledge of the condition of the stairs for the reasons explained above.

(ii) Causation

Georgia Power argues that it was entitled to a directed verdict because there was no evidence that Ries's fall was caused by the pole light being out. But the trial evidence, discussed above, “does not plainly, palpably and indisputably show a lack of proximate cause. Absent such evidence, the issue of proximate cause, as well as that of negligence, is for the jury.” DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811, 812-13(2), 278 S.E.2d 712 (1981).

(iii) Breach of a duty

Finally, Georgia Power argues that it was entitled to a directed verdict because there was no evidence that it breached a duty owed to Ries. Again, the trial evidence, viewed in the light most favorable to the verdict, showed otherwise. As detailed above, the evidence showed that Georgia Power was responsible for fixing the malfunctioning light pole, that it was notified of the issue between seven and nine days before Ries's fall, and that Georgia Power trained its employees to address such maintenance issues within three to five business days. Moreover, there was evidence that Ansley Walk followed up with Georgia Power numerous times about fixing the light pole prior to Ries's fall.

2. The trial court did not err in an evidentiary ruling (Case No. A25A1776)

Ansley Walk argues that the trial court erred in denying its oral motion in limine to preclude Ries from arguing or introducing any evidence that Ansley Walk “never put handrails on the stairs and [that] there are still no handrails on the stairs.” We disagree.

In support of the motion, Ansley Walk argued that the current condition of the stairs was irrelevant and was “essentially a reverse remedial measure argument.” In response, Ries argues in relevant part as follows:

Their defense is that in 2013, Reaves Construction Company came in and Reaves was supposed to tell them that handrails were supposed to be installed and their defense is, if Reaves told them in 2013 they would have installed handrails․

And they have been told now by a code expert, ․ by our lawsuit, probably by their own lawyers, probably by their own experts ․ that they have a code violation they don't have handrails and they still haven't changed that and so for them to claim that well, if somebody would had of just told us we would have changed them and that's very relevant because had they been told they would have done exactly what they do today and that is nothing. And so it's highly relevant to this Reaves, it's all Reaves's fault, had they told us, we would have done something different.

Ansley Walk conceded that this was its defense but still argued that this type of evidence was irrelevant and violated the rule against admitting evidence of subsequent remedial measures. See OCGA § 24-4-407 (“In civil proceedings, when, after an injury or harm, remedial measures are taken to make such injury or harm less likely to recur, evidence of the remedial measures shall not be admissible to prove negligence or culpable conduct․”).

“We review the trial court's ruling on a motion in limine for abuse of discretion.” Ridley v. State, 368 Ga. App. 481, 483, 890 S.E.2d 385 (2023). And, based upon the record before us, we cannot say that the trial court abused its discretion by denying Ansley Walk's motion in limine. Although OCGA § 24-4-407 clearly applies where a party has taken subsequent remedial measures, Ansley Walk cites to no authority, nor can we find any, that supports its position that this Code section also precludes the admission of evidence regarding a party's failure to remediate an alleged dangerous condition after an incident has occurred. See Briglevich v. Liberty House Restaurant Corp., 277 Ga. App. 433, 434 (1), 626 S.E.2d 625 (2006) (holding that the trial court did not err by allowing a restaurant employee to testify that no remedial measures were taken after the plaintiff's slip and fall, rejecting the argument that the testimony was the “flip side” of OCGA § 24-4-407).

Further, the lack of any action taken by Ansley Walk is relevant and highly probative where that evidence directly rebutted Ansley Walk's defense. See OCGA §§ 24-4-401 (defining relevant evidence), 24-4-403 (allowing for the exclusion of relevant evidence where its probative value is substantially outweighed by the danger of unfair prejudice). Ansley Walk argues that the sole purpose for introducing testimony that the stairs had not been brought to code was to incite passion and prejudice in the jury. But within her complaint, Ries alleged that Ansley Walk breached a duty owed to her by, in part, “failing to build and maintain the stairway in compliance with applicable building and safety codes, rules, regulations, standards, and statutes” both under a theory of premises liability and negligence per se. Thus, evidence of the relevant building codes and Ansley Walk's violation of them was directly relevant to Ries's claims against Ansley Walk and was not merely introduced to incite passion and prejudice in the jury. We find no error in the trial court's in-limine ruling not to preclude such evidence.

3. Ansley Walk has not shown that the damages award was excessive (Case No. A25A1776)

Ansley Walk argues that the damages award was excessive and that the trial court should have ordered a new trial on damages. But “[t]he question of damages is ordinarily one for the jury; and the court should not interfere with the jury's verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.” OCGA § 51-12-12(a).

Ansley Walk does not argue that the verdict was so excessive that it was inconsistent with the preponderance of the evidence. Instead, it argues that the cumulative effect of the alleged trial court errors inflamed the passions of the jury. As discussed above, the allegations of trial court error raised by Ansley Walk were all without merit.

Further, Ries sought damages for bodily injury; non-economic damages including damages for past, present, and future physical and mental pain and suffering, mental anguish, anxiety, emotional distress, disruption of normal life, and loss of enjoyment of life; damages for past, present, and future medical expenses; and damages for diminished capacity to earn a living. Based upon our review of the record, we cannot say that the damages award was so excessive as to be inconsistent with the preponderance of the evidence. See, e.g., Hart v. Shergold, 295 Ga. App. 94, 99(3), 670 S.E.2d 895 (2008).

4. The trial court did not err in its treatment of the percentage of fault assigned to Ries when apportioning damages (Case Nos. A25A1761 and A25A1776)

Ansley Walk and Georgia Power each contend that the trial court erred in its damages calculation. The jury found that Ries had suffered $8.5 million in compensatory damages and apportioned fault as follows: 12.5% to Ries, 70% to Ansley Walk, 5% to Georgia Power, and 12.5% to non-party Reaves Construction, Inc. Both Ansley Walk and Georgia Power moved for entry of judgment pursuant to Georgia's apportionment statute, OCGA § 51-12-33, arguing that, pursuant to subsection (a), the trial court was required to reduce the total damages awarded by Ries's 12.5% fault — taking the damages from $8.5 million to $7,437,500 — and then apply each defendant's percentage of fault to that new number in order to arrive at the amount of damages they would be required to pay. The trial court rejected this argument and instead calculated the defendants’ respective damages by multiplying their percentage of fault by the total $8.5 million award. Ansley Walk and Georgia Power contend that this was error. Based upon the plain language of the statute, we disagree.

It is well settled that, when considering the meaning of a statute,

we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage.

Holcomb v. Long, 329 Ga. App. 515, 517-18(1), 765 S.E.2d 687 (2014) (citation modified). Accord Deal v. Coleman, 294 Ga. 170, 172-73(1)(a), 751 S.E.2d 337 (2013).

Further, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly. Put another way, as long as the language is clear and does not lead to an unreasonable or absurd result, it is the sole evidence of the ultimate legislative intent.

Restor-It v. Beck, 352 Ga. App. 613, 615, 835 S.E.2d 398 (2019) (citation modified).

With these principles in mind, we turn to the relevant statutory language. OCGA § 51-12-33 provides in relevant part as follows:

(a) 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 claims, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

(b) Where an action is brought against one or more persons for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the person or persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(Emphasis supplied.)

Reading the relevant language of OCGA § 51-12-33 in its most natural and reasonable way, the trial court properly apportioned damages here. First, the trier of fact determined the percentage of Ries's fault (12.5%) which the trial court reduced by subtracting that amount — $1,062,500 — from the $8.5 million compensatory damages award. Thereafter, Ansley Walk was ordered to pay $5,950,000 (70%² of the $8.5 million) and Georgia Power was ordered to pay $425,000 (5% of the $8.5 million) in compensatory damages. In other words, the trial court reduced the verdict by Ries's 12.5% and then entered the remaining judgment according to the jury's allocation of fault.

Georgia Power and Ansley Walk argue that the trial court, under the apportionment statute, was first required to reduce the entire $8.5 million award amount by the amount of fault apportioned to Ries and then use that new, lower amount to apply to each defendant's percentage of fault. Ries argues that such an interpretation would lead to an absurd result because such a calculation would require the trial court to apply a plaintiff's percentage of fault twice — once upon the initial reduction and then again when the percentages are reapplied at the new, lower level of damages. We agree with Ries. To interpret the plain language of the statute in the manner posed by Georgia Power and Ansley Walk would lead to an absurd result in that it would require a trial court to twice apply an allocation of fault against a plaintiff when calculating damages. Indeed, doing so would mean that a portion of the damages award given by the jury would be left on the table and awarded to no one, leaving the plaintiff without their full compensation as ordered and determined by the trier of fact. Finally, Georgia Power and Ansley Walk have pointed to no case law, nor can we find any, where either this court or the Supreme Court of Georgia has approved of their view of the statute. So although, as discussed below, we vacate the judgment for other reasons related to apportionment, we find no error in this aspect of the trial court's apportionment of damages.

5. The trial court erred in allowing the jury to assign fault to non-party Reaves Construction (Case No. A25A1775)

As stated above, the jury assigned 12.5% of the fault to Ries, 5% to Georgia Power, 70% to Ansley Walk, and 12.5% to non-party Reaves Construction. In an enumeration of error in her cross-appeal, Ries asserts that the trial court “erred by 1) instructing the jury that they may assign fault to nonparty Reaves [Construction]; 2) by allowing nonparty Reaves [Construction] to be on the verdict form; and 3) by reducing the damages owed by Defendant Ansley Walk by the amount of fault assigned to nonparty Reaves [Construction].” She argues these actions were error because Ansley Walk owed her a non-delegable duty and, therefore, Reaves Construction and Ansley Walk were indivisible tortfeasors.³ As detailed below, we agree that the trial court erred in this way, that Ansley Walk's 70% share of fault and Reaves Construction's 12.5% share of fault were indivisible, and that, therefore, Ansley Walk is liable for 82.5% of the verdict. So we vacate the judgment and remand for the trial court to enter a new judgment.

In actions such as this, OCGA § 51-12-33 directs the trier of fact to “apportion its award of damages among the person or persons who are liable according to the percentage of fault of each person.” OCGA § 51-12-33(b). In doing so, “the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” OCGA § 51-12-33(c).

As to Ansley Walk and Reaves Construction, their fault is indivisible. “An employer is liable for the negligence of a contractor ․ [i]f the wrongful act is the violation of a duty imposed by statute[.]” OCGA § 51-2-5(4). And an owner or occupier of land has a statutory duty “to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. Whether or not Reaves Construction was an independent contractor, under OCGA § 51-2-5(4) Ansley Walk is vicariously liable for Reaves Construction's wrongful acts in constructing the staircase in a way that violated that non-delegable, statutory duty. See Camelot Club Condo. Ass'n v. Afari-Opoku, 340 Ga. App. 618, 627(2) (b), 798 S.E.2d 241 (2017), disapproved in part on other grounds, Ga. CVS Pharm. v. Carmichael, 316 Ga. 718, 732(II)(C), 890 S.E.2d 209 (2023).

While Ansley Walk may also have engaged in independent acts of negligence aside from the negligent repair of the staircase, as the dissent asserts, there is no argument that Reaves Construction engaged in independent acts of negligence for which Ansley Walk would not have vicarious liability. The arguments regarding Reaves Construction are limited to the negligent repair of the staircase. In a Venn diagram, the circle depicting Reaves Construction's possible negligent acts sits fully within the circle depicting Ansley Walk's possible negligent acts.

The touchstone of an apportionment analysis is whether fault is divisible. FDIC v. Loudermilk, 305 Ga. 558, 572(2), 826 S.E.2d 116 (2019). Vicarious liability for another's fault is liability for all of it. So fault cannot be divided among persons where one is vicariously liable for the other's negligence.

This court has made that point clear in several decisions. In Eliezer v. Mosley, 369 Ga. App. 102, 891 S.E.2d 555 (2023), we addressed the issue in a case where one named defendant was vicariously liable for the other named defendant's acts or omissions, holding that in such instance “division of fault is not possible” and thus fault could not be allocated under the apportionment statute. Id. at 108, 891 S.E.2d 555.

Likewise, in Camelot Club Condo. Ass'n, 340 Ga. App. 618, 798 S.E.2d 241, we held that if one defendant's wrongful act “were found to be a violation of [the other defendant's] non-delegable, statutory duty, any negligence on the part of [the former] would be charged to [the latter].” Id. at 627(2)(b), 798 S.E.2d 241.

While Eliezer and Camelot Club Condo. Ass'n address vicarious liability between two named defendants, rather than between a named defendant and a non-party, this is not a meaningful distinction under the apportionment statute. Both OCGA § 51-12-33(b) and (c) address the assessment of fault. The apportionment statute says that in assessing the percentages of fault for the purpose of apportioning damages under OCGA § 51-12-33(b), “the trier of fact shall consider the fault of the persons or entities who contributed to the alleged injury or damages.” OCGA § 51-12-33(c). Nothing in that statute says that vicarious liability should be treated differently with respect to the fault of non-parties under OCGA § 51-12-33(c) from the way it is treated with respect to the fault of named defendants under OCGA § 51-12-33(b).

Part of that process is considering whether the non-party's fault is divisible or indivisible from that of the named defendant. If the fault is indivisible, the jury should not be charged on apportioning damages between the vicariously liable named defendant and the allegedly negligent non-party. See PN Express v. Zegel, 304 Ga. App. 672, 680(5), 697 S.E.2d 226 (2010) (holding that the trial court properly declined a named defendant's request to charge the jury on apportionment of damages between it and a third party for whose negligence the named defendant was vicariously liable).

This principle applies even though the jury was given a general verdict form that did not distinguish between the various grounds on which Ansley Walk could be found liable. Special verdict forms, authorized under OCGA § 9-11-49, can avoid the necessity of guessing what the jury meant. See, e.g., Lingerfelt v. Hufstetler, 137 Ga. App. 723, 725-26, 224 S.E.2d 827 (1976) (where both the trial court and the appellate court were forced to construe the meaning of a general verdict). But it does not follow that general verdicts are per se ambiguous.

Certainly, where an ambiguity does exist as to whether an active tortfeasor's negligence is imputable to a defendant, then the lack of a special verdict form may prevent the conclusion that fault was indivisible. Such was the case in Camelot Club Condo. Ass'n, a case involving the divisibility of fault between two named defendants, in which we held that “the jury may have imposed fault on [the first defendant] based strictly on a theory of nuisance, and the imposition of fault on [the second defendant] could be completely independent of, and not imputable to, [the first defendant].” Camelot Club Condo. Ass'n, 340 Ga. App. at 629(2)(b), 798 S.E.2d 241.

The general verdict form before us is not ambiguous. There is no evidence of any negligence on the part of Reaves Construction for which Ansley Walk is not vicariously liable. This is not a situation where different evidence would be needed to prove that Reaves Construction was negligent than would be needed to prove that Ansley Walk was negligent, with regard to construction of the staircase. Cf. Quynn v. Hulsey, 310 Ga. 473, 479, 850 S.E.2d 725 (2020) (holding that the need for different evidence to prove the parties’ negligence could render the claims in a vicarious liability case “divisible and capable of being assigned percentages of fault”).

As to construction of the staircase, Reaves Construction's fault is indivisible from Ansley Walk's fault, regardless of the theory on which the jury found Ansley Walk liable. So as to that staircase, Reaves Construction is liable for all of Ansley Walk's fault. Consequently, the trial court erred in allowing the jury to assign fault to Reaves Construction; the fault that the jury assigned to Reaves Construction is chargeable to Ansley Walk, see Camelot Club Condo. Ass'n, 340 Ga. App. at 627(2)(b), 798 S.E.2d 241; and that fault should have been included in the amount of damages apportioned to Ansley Walk.

So as in Camelot Club Condo. Ass'n, we vacate the judgment and remand the case “for the trial court to enter a judgment in accordance with the jury's verdict,” Camelot Club Condo. Ass'n, 340 Ga. App. at 629(2)(b), 798 S.E.2d 241, by adding the fault assigned to Reaves Construction to the fault assigned to Ansley Walk.

6. Other claims asserted by Ries (A25A1775)

In her cross-appeal, Ries argues that if we reverse the jury's verdict and order a new trial, we should address additional trial errors. Given our resolution in this case, we need not address Ries's additional claims of error.

Judgments vacated and cases remanded with direction.

In her own brief on cross-appeal, Ries concedes “that she alleged additional and independent acts of negligence against Ansley Walk aside from the negligent repair of the stairs,” and that, because of this, “[i]f both Ansley Walk and Reaves were named as Defendants, then Ansley Walk's fault could be partially divided from Reaves’ based upon those independent claims.” The majority opinion does not address this concession. Instead, the majority opinion subsumes the role of the jury by determining that “[t]here is no evidence of any negligence on the part of Reaves Construction for which Ansley Walk is not vicariously liable[,]” and further concludes that the trial court erred by including Reaves Construction on the verdict form for the purposes of non-party fault. Maj. Op. –––– – ––––, ––––. However, neither the record nor Georgia law support the majority opinion's conclusions. Accordingly, while I concur fully in Divisions 1, 2, 3, 4, and 6 of the majority opinion, because I believe that the trial court did not err regarding its handling of the apportionment of non-party fault to Reaves Construction, Inc., I must dissent to Division 5 and in the judgment.

Before turning to the merits of Division 5, I note that the majority opinion has gone to extraordinary lengths to address a legal claim that should not be considered in the first instance. Division 5 is premised on nothing more than a passing argument made by Ries; in a single sentence on her cross-appeal she argued that the court erred “by reducing the damages owed by Ansley Walk by the amount of fault assigned to non[-]party Reaves [Construction].” While Ries spends numerous pages of her brief discussing and analyzing whether Ansley Walk and non-party Reaves Construction were indivisible tortfeasors for the purposes of vicarious liability,¹ her brief is devoid of any case law or legal analysis on whether Georgia law allows for post-verdict reassignment under such circumstances. Cf. Camelot Club Condominium Association, Inc. v. Afari-Opoku, 340 Ga. App. 618, 798 S.E.2d 241 (2017) overruled on other grounds by Georgia CVS Pharmacy, LLC v. Carmichael, 316 Ga. 718, 726(II)(b), 890 S.E.2d 209 (2023) (explaining that OCGA § 51-12-33(b) “addresses liability, not merely fault, and by defining the liability of each person against whom damages are awarded and prohibiting joint liability, it seems generally to preclude any post-verdict reassignment of damages based on the jury's apportionment of fault”). For this reason alone, this Court need not address such a complicated claim since Reis has put this Court in a position to resolve this issue without being adequately briefed on the same. See Gresham v. Harris, 349 Ga. App. 134, 138(1) n.9, 825 S.E.2d 516 (2019) (“Suffice it to say, rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant facts.” (citation modified.)).

Our review of this claim is further hampered by the general verdict form returned in this case; the verdict does not make any factual findings or specify the theories on which the jury decided the case. The general verdict form simply asked the jury if it found Ansley Walk negligent, to which the jury checked “yes.” Likewise, the verdict form asked the jury if it found Georgia Power negligent, to which the jury checked “yes.” The jury then attributed its percentages of fault to Ries, Ansley Walk, Georgia Power, and non-party Reaves Construction. The majority opinion posits that the general verdict form here is not ambiguous because “Reaves Construction's fault is indivisible from Ansley Walk's fault, regardless of the theory on which the jury found Ansley Walk liable.” Maj. Op. at ––––. I disagree.

As acknowledged by Ries in her briefing on her cross-appeal, her complaint alleged claims against Ansley Walk for premises liability, negligence, negligence per se, and vicarious liability based upon both the construction of the staircase and the malfunctioning light pole. She also alleged claims against Georgia Power for negligence and vicarious liability.² The jury generally found Ansley Walk negligent, but did not specify under which theory of negligence, or if that negligence finding was based upon the construction of the staircase or the malfunctioning light pole, or a combination of the two. Indeed, the jury heard evidence at trial that Ansley Walk and Reaves Construction exchanged numerous emails and documents wherein Ansley Walk requested that the new stairs would be built to code and Reaves Construction provided reassurance that all work on the staircase would meet code requirements. There was also testimony from Ansley Walk board members that they hired a licensed contractor who had experience with building staircases so that the contractor could advise them on what was needed to make the stairs code compliant. Therefore, contrary to the assertion in the majority opinion, there is a scenario where the jury could have found, based upon the evidence, that Ansley Walk was negligent solely based upon its failure to maintain and repair the light pole and alert Ries to the existence of this alleged hazard, and then separately determined that Reaves Construction was at fault solely for its construction of the staircase.³ And since “[w]e cannot determine from the general verdict which of [the plaintiff's] claims the jury, in its perogative, based its award,” we must uphold the verdict. Camelot Club, 340 Ga. App. at 629(2)(b), 798 S.E.2d 241 overruled on other grounds by Carmichael, 316 Ga. at 726(II)(b), 890 S.E.2d 209. See also Wolff v. Middlebrooks, 256 Ga.App. 268, 271(3), 568 S.E.2d 88 (2002) (court cannot determine claim upon which the jury imposed liability from a general verdict).

Despite these issues, and Ries’ concession, the majority opinion holds that the trial court erred by allowing the jury to assign fault to non-party Reaves Construction. On this point, I must disagree. In support of its analysis, the majority opinion relies upon the case law for divisible fault laid out in Eliezer v. Mosley, 369 Ga. App. 102, 891 S.E.2d 555 (2023), Camelot Club, PN Express v. Zegel, 304 Ga. App. 672, 697 S.E.2d 226 (2010), and FDIC v. Loudermilk, 305 Ga. 558, 826 S.E.2d 116 (2019). Maj. Op. –––– – ––––. However, all of these cases analyzed the divisibility of fault between named defendants under OCGA § 51-12-33(b) in order to determine whether the jury could consider nonparty fault pursuant to OCGA § 51-12-33(c). See Eliezer, 369 Ga. App. at 106-08, 891 S.E.2d 555 (holding that fault was not divisible among named defendants under subsection (b) and, therefore, defendants could not seek to allocate fault to non-parties), Camelot Club, 340 Ga. App. at 626-29, 798 S.E.2d 241 (discussing divisibility of fault between named defendants condo association and security firm under subsection (b) in order to determine whether apportionment applied), PN Express, 304 Ga. App. at 680(5), 697 S.E.2d 226 (analyzing divisibility between named defendant trucking company and named defendant employee driver who settled prior to trial in determining that the trial court did not err by refusing to instruct the jury on non-party fault), and Loudermilk, 305 Ga. at 572-75(2), 826 S.E.2d 116 (discussing divisibility of fault among named defendants for the purposes of subsection (b)). Contrary to the majority opinion's assertion, see Maj. Op. –––– – ––––, this is a meaningful distinction under the apportionment statute because it is well settled that “[s]ubsection (b) simply does not concern nonparties,” which, of course, means Reaves Construction. Zaldivar v. Prickett, 297 Ga. 589, 600(1), n. 7, 774 S.E.2d 688 (2015) (emphasis supplied). Accordingly, none of those cases are instructive to the issue on cross-appeal. Instead, the resolution of this appeal is controlled by subsection (c).

Turning to the relevant portion of the statute, under OCGA § 51-12-33(c), “[i]n assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” (Emphasis supplied.) As explained by the Georgia Supreme Court,

[a] person is considered to have contributed to the alleged injury where that person is shown to have breached a legal duty in the nature of a tort that is owed for the protection of the plaintiff, the breach of which is a proximate cause of his injury. Indeed, the apportionment statute permits consideration, generally speaking, of the “fault” of a tortfeasor, notwithstanding that he may have a meritorious affirmative defense or claim of immunity against any liability to the plaintiff.

While it is the defendant's burden to establish a rational basis for apportioning fault to a non-party, whether the non-party contributed to the alleged injury is a question of fact for a jury to decide.

Johnson St. Props., LLC v. Clure, 302 Ga. 51, 58(b), 805 S.E.2d 60 (2017) (citation modified). In other words, “the statute is designed to apportion damages among all persons or entities who contributed to the alleged injury or damages—even persons who are not and could not be made parties to the lawsuit.” Southwest Emergency Physicians, P.C. v. Quinney, 347 Ga. App. 410, 427(4), 819 S.E.2d 696 (2018). “[T]he fault of a non-party cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact contributed to the alleged injury or damages.” Id. (citation modified). Here, based upon the expert's testimony at trial opining that the rebuilt staircase violated several building codes, there was more than enough competent evidence that non-party Reaves Construction contributed to Ries’ injuries. Consequently, I must conclude that the trial court did not err by including Reaves Construction on the general verdict form nor was it error for the trial court to instruct the jury on Reaves’ non-party fault. Cf. Quynn v. Hulsey, 310 Ga. 473, 479, 850 S.E.2d 725 (2020) (“Even accepting that claims for negligent entrustment, hiring, training, supervision, and retention, in those cases where the employer concedes that it will be vicariously liable under the doctrine of respondeat superior if its employee is found negligent, are derivative of the employee's tortious conduct to some extent, that would not relieve the jury from apportioning fault under the plain language of the apportionment statute.”).

That said, even if I were to agree with the majority opinion that a non-party must be a divisible tortfeasor from a named defendant in order for a jury to consider non-party fault, the record shows, and Ries concedes, that she alleged additional and independent acts of negligence against Ansley Walk for which Reaves Construction could not be held liable. Specifically, the complaint alleged numerous instances of common law negligence and premises liability against Ansley Walk regarding its handling of the light pole. However, none of the acts of negligence regarding the failure to maintain or repair malfunctioning light pole or notify Ries of the same could be imputed onto Reaves Construction.

For all of the reasons above, I would conclude that the trial court did not err by instructing the jury that it could consider Reaves Construction for non-party fault or by including Reaves Construction on the verdict form. Consequently, I would affirm the trial court's judgment and the damages award.⁴

FOOTNOTES

1.   They also assert that the trial court erred in denying their pre-trial motions for summary judgment. However, the denial of the motion for summary judgment is superceded by the evidence at trial and the motion for directed verdict and is therefore moot. See Cook v. Huff, 274 Ga. 186, 189(5), 552 S.E.2d 83 (2001); City of College Park v. City of Sandersville, 361 Ga. App. 529, 531(1), 864 S.E.2d 680 (2021).

2.   As discussed below in connection with Ries's cross-appeal, we agree with Ries that Ansley Walk's percentage of the $8.5 million award should also include the 12.5% of fault that the jury assigned to Reaves Construction Company. This does not affect our conclusion that the trial court properly rejected Ansley Walk and Georgia Power's argument regarding the treatment of Ries's percentage of fault in apportioning damages.

3.   Ries's indivisible-tortfeasor argument pertains to all three aspects of this enumeration of error. So we are not persuaded by the dissent's position that we should not consider Ries's claim that the trial court erred in reducing her damages by the amount of fault that the jury assigned to Reaves Construction.

1.   In addition to her single sentence argument regarding the post-verdict calculation of damages, Ries argues that the trial court erred by instructing the jury that they may assign fault to non-party Reaves Construction, and that the trial court erred by allowing non-party Reaves Construction to be listed for apportionment of fault on the verdict form.

2.   The record shows that Georgia Power also filed its own notice of non-party fault to Reaves Construction, and it is undisputed that Georgia Power is a separate tortfeasor with no vicarious liability issues with Reaves Construction.

3.   There are additional layers to this issue which the majority opinion either does not address, assumes to be undisputed, or assumes is established as a matter of law. However, issues regarding the existence of an employer/independent contractor relationship and whether an independent contractor can still be held liable for a breach are fact intensive questions better left for the jury to resolve, not this Court. See OCGA §§ 51-2-4, 51-2-5. See, e.g., Georgia Insurers Insolvency Pool v. LogistiCare Solutions, LLC, 374 Ga. App. 208, 211-13(1), 912 S.E.2d 91 (2025); Cajun Contractors, Inc. v. Peachtree Prop. Sub, LLC, 360 Ga. App. 390, 394(1)(a), 861 S.E.2d 222 (2021).

4.   I am also not convinced that this Court can simply vacate the damages award and order the trial court to add Reaves’ fault to that of Ansley Walk. Because the majority opinion specifically concludes that the trial court erred by placing Reaves Construction on the verdict form and allowing the jury to assign fault to the same, Maj. Op. at –––– – ––––, ––––, I am of the mind that we would then be required to order a new trial on the issue of apportionment. See Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 336-40(III), 801 S.E.2d 24 (2017).

McFadden, Presiding Judge.

Hodges, J., concurs. Pipkin concurs fully in Divisions 1, 2, 3, 4 and 6 and dissents in Division 5 and the judgment.