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Court of Appeals of Georgia.


No. A12A1693.

Decided: February 28, 2013

We granted an interlocutory appeal in this case to consider whether the trial court erred by granting a motion in limine preventing defendants from arguing and seeking an apportionment of damages under OCGA § 51–12–33. In light of the Supreme Court of Georgia's recent opinion in Couch v. Red Roof Inns, 291 Ga. 359, 729 S.E.2d 378 (2012), we reverse.

The record shows that Joshua Martin was assaulted by four individuals1 at a Cobb County Transit bus stop located near Six Flags over Georgia. Martin subsequently filed a complaint for his injuries against these four individuals, Six Flags Over Georgia II, LP, SFOG II, Inc., SFG–II, LLC, Six Flags over Georgia, LLC, (collectively “Six Flags”), and Midtown Lanier Parking, Inc. (“Lanier Parking”). Martin alleged that Six Flags and Lanier Parking negligently failed to provide adequate security and negligently failed to keep their premises safe. He also asserted that the four individuals assaulted and battered him and that as a result of their action and the inaction of Six Flags and Lanier Parking, he suffered damages.

Martin subsequently moved for “partial summary judgment that OCGA § 51–12–33 is not applicable and OCGA § 51–12–33 is unconstitutional as written or applied or in the alternative motion in limine to exclude all evidence and all arguments of apportionment pursuant to OCGA § 51–12–33.” Martin also sought to prevent “any apportionment instruction of law to the jury.” The trial court declined to rule on the constitutional issues and granted only the motion in limine, finding that apportionment under OCGA § 51–12–33 is not available “in premises liability cases where one Defendant is alleged to have committed an intentional tort.” The trial court reasoned that permitting apportionment “would effectively allow the premises owner to shield itself from any potential liability based upon an alleged breach of its own duty, if any, because the fact finder would apportion all damages against the criminal actor.”

Following the trial court's ruling and while this case was pending on appeal, the Supreme Court of Georgia held in Couch, supra, that “proper statutory construction mandates a finding that “fault,” as used in OCGA § 51–12–33, encompasses intentional torts .” 291 Ga. at 365, 729 S.E.2d 378. We therefore conclude that the trial court erred by granting Martin's motion in limine.2 Id. See Accor North America v. Todd, 318 Ga.App. 317, 733 S.E.2d 846 (2012).

Judgment reversed.

BOGGS, Judge.

DOYLE, P.J. and ANDREWS, P.J., concur.

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