News & Resources

Negligent Security Reform:

• Holding property owners and proprietors liable for the criminal conduct of third parties/outsiders was a key focus, if not the central focus, of the proposed legislation.
• This cause of action, an offshoot of premises liability, was the primary issue that landed Georgia at the top of the “Judicial Hellholes” list published by the American Tort Reform Foundation for two years running (even now it remains at #4 for 2024-25).

• If passed, this bill will provide sweeping legal changes including:

• Plaintiffs must prove foreseeability in one of two specific ways:
  • (1) Where the owner had a “particularized warning” of an imminent crime (i.e., specific knowledge about a likely crime before it happened); or

• (2) Under a “clear and convincing evidence” standard (like for proving punitive liability) the owner should have known a crime was likely based on:
  • Prior occurrences of “substantially similar” crimes on the premises (which must be known to the owner or occupier);
  • Prior occurrences of “substantially similar” crimes within 500 yards of the property (which must be known to the owner or occupier);
  • Past criminal acts by the same perpetrator, if the owner knew that individual was present on the premises.

• Regardless, there can be no liability unless:
  • The crime exploits/makes use of some physical condition at the premises in question (mere presence on the property is insufficient); and

• The crime must result from a specific and known physical condition of the property that created a risk greater than general crime risks in the area, and the owner or occupier must have known of the physical condition and failed to correct it (precluding liability for ordinary/routine crime in the area, which is the responsibility of law enforcement rather than property owners).

• Duty to Invitees vs. Licensees:
  • For invitees, the owner is liable only if they failed to remedy a known dangerous condition and that failure was a proximate cause of the injury.

• For licensees, the owner is only liable if they willfully and wantonly failed to act in some way to remedy such a condition, a much more challenging standard for a prospective plaintiff to meet.

• Additionally, “foreseeability” for licensees would not include prior crimes on or near the premises; rather, for licensees, a crime is reasonably foreseeable only if the owner or occupier had a particularized warning of imminent wrongful conduct by a third person (that it willfully and wantonly ignored).

• There is no duty to trespassers.

• New Defenses for Property Owners – there can be no liability where:
  • The crime was committed by a tenant or a guest of a tenant AFTER eviction proceedings were commenced;
  • The crime did not occur upon the premises and/or in a place from where defendant had the legal right and authority to exclude the plaintiff/injured party;
  • The injured party/plaintiff was a trespasser (trespassers now cannot sue for negligent security);
  • The injured party/plaintiff was himself a criminal (i.e., came upon the premises to commit a felony or certain misdemeanors, or was committing a felony or certain misdemeanors at the time of injury), unless the injured party/plaintiff was a victim of human trafficking;
  • The defendant is a mere homeowner (single-family residence); OR
  • The defendant after a “particularized warning” reported it to law enforcement (e.g., by calling 911 or filing a report, which is now a complete defense to liability).

• Apportionment of Fault by Jury Under O.C.G.A. 51-12-33:
  • Juries would be REQUIRED to apportion fault to all responsible parties, including the criminal perpetrator; if it fails to assign a reasonable degree (percentage) of the total fault to the criminal, then the trial judge would be compelled to overturn the verdict and order a new trial.

• Parties are PROHIBITED from raising/mentioning to the jury:
  • Any criminal punishment imposed on the criminal; OR
  • The financial resources of any party or nonparty; OR
  • The effect an apportion of fault would have upon any award of damages to the plaintiff.

• Security Contractors enjoy the same protections under this proposed legislation as property owners/proprietors and cannot be held liable beyond the property owner/proprietor. 

Eliminating “Phantom Damages” by Modifying the “Collateral Source Rule” for Medical: Bills/Expenses:

• Medical bills/expenses are recoverable to the extent PAID (not merely billed).

• Plaintiffs may recover:
  • Amounts actually paid to healthcare providers on plaintiff’s behalf;
  • Amounts necessary to satisfy the incurred but unpaid charges due to a healthcare provider or other third party on behalf of the plaintiff; and
  • For any medical expenses not yet incurred, amounts actually necessary to pay future charges for treatment.

• If a plaintiff has any type of health insurance, including any public benefits like Medicaid or Medicare, or the bills are covered by a “governmental workers’ compensation program,” any unpaid medical bills are limited to the amount that health insurance would actually pay (regardless of what is billed), “regardless of whether the health insurance has been used, is used, or will be used to satisfy the charge.”

• Phrased more simply, a plaintiff with health or workers’ compensation insurance can only claim what health/workers’ compensation insurance would pay for his/her medical care, plus any out-of-pocket portion the plaintiff would be responsible for paying; this is true whether health insurance was used or not (precluding plaintiffs from increasing their damages by failing to report an injury to their health insurer).

No “Anchoring” – Gag Rule on Arguing Non-Economic Damages:

• C.G.A. § 9-10-184 would be amended to PROHIBIT parties from arguing/suggesting to the jury the amount of non-economic/general damages.

• The amended statute states that, “…counsel shall not argue the worth or monetary value of noneconomic damages, and counsel shall not, in the hearing of the jury or any prospective juror, elicit any testimony regarding, or make any reference to, any specific amount or range of amounts of noneconomic damages….”

• If this rule is violated, the court must take remedial action to address the prohibited statements.

• The topic cannot be discussed even during jury selection, as the rule extends to “prospective jurors.”

Seatbelt Evidence Admissible:

• Georgia currently precludes any evidence of seatbelt usage on issues of liability and damages in negligence cases; however, the proposed legislation would permit the use of such evidence on issues of negligence, comparative negligence, causation, assumption of the risk, apportionment of fault, or any other such purpose, and could be used to diminish a recovery of damages arising out of the ownership, maintenance, occupancy, or operation of a motor vehicle.

Limitations on Statutory Attorney’s Fees (No More Double Dipping):

• First, the proposed legislation would create a new statute (O.C.G.A. 9-15-16) limiting any party to a SINGLE recovery of statutory attorney’s fees/expenses despite the multiple statutes available allowing their recovery UNLESS the statute in question expressly permits a double recovery.

• Second, O.C.G.A. § 13-6-11, a statute in the Contracts Title (13) of the Georgia Code authorizing attorney’s fees for bad faith or stubbornly litigious pre-suit conduct, would be restricted to contract actions (currently, despite being in the Contracts title, the courts have bizarrely permitted it to be utilized in tort actions, leading to widespread abuse).

Regulation of Litigation Financing:

• A separate bill on this topic alone is 15 pages.

• However, in short, it:

• Defines both “litigation financing,” “litigation financing agreements,” and “litigation financiers”;

• Attorney contingency fee agreements, insurance agreements, and certain non-profit pro bono organizations are expenses are excluded;

• Prohibits foreign-affiliated entities from serving as litigation financiers; and

• Requires that litigation financiers register with the Department of Banking and Finance and regulate their operations by setting forth criteria with which they must comply.

• Requirements/regulations for litigation financiers include:
  • Registering with the state and providing detailed business information and updating same within 30 days of any change;
  • Disclose of owners controlling 5% or more of voting shares;
  • Precludes affiliations with foreign persons, principals, or sovereign wealth funds;
  • Contracts must be written with specific disclosures to consumers;
  • Prohibition against direct or influence case decisions, including choice of counsel or litigation strategy;
  • Prohibition against paying/receiving referral fees or commissions;
  • Prohibition against false/misleading information/advertising;
  • Prohibition against offering legal advice to consumers;
  • Prohibition against assigning or securitizing litigation financing agreements;
  • Prohibition against reporting consumers to credit agencies for insufficient recovery;
  • Prohibition against anyone providing goods or services to the consumer having a financial interest in litigation financing provided by a litigation financier to the consumer (e.g., attorneys and expert witnesses may not have a financial interest in litigation financing provided to their own clients). 

• Consumer Protections/Rights Include:
  • Plaintiff cannot be charged/owe the litigation financier cannot recover more than what the plaintiff recovers/is getting in his/her pocket, after attorney’s fees and expenses are deducted from that recovery.
  • Plaintiff has 5 days to cancel after signing the financing contract/agreement.
  • Certain disclosures must be in a 14-point bold font.
  • Plaintiff gets to pick and change his/her attorney without penalty.
  • The plaintiff must sign the agreement directly and not through counsel.
  • Attorneys must disclose any financing agreements to their clients.
  • Litigation financiers would be jointly and severally liable for any award of costs or sanctions against a consumer arising from any civil action or proceeding in which the litigation financier is providing litigation financing.
    • (Likely to discourage lending for frivolous actions.)
    • The litigation financier would be forced to indemnify the plaintiffs and their legal representatives from any such fees or costs unless the litigation financier can show that the conduct resulting in the award of costs or sanctions was the result of intentional misconduct by the plaintiffs or their legal representatives.

• Enforcement mechanisms include:
  • Violations by financiers render agreements void and unenforceable.
  • Each willful violation is a crime (i.e., a felony with 1-5 years of imprisonment or up to a $10,000 fine).
  • The Georgia Attorney General can initiate criminal proceedings (not just a local prosecutor).
  • The Commissioner of Banking and Finance is authorized to enact further rules/regulations.

Modifications of Civil Procedure:

• Mandatory Separation (Bifurcation/Trifurcation):
  • Any party could elect to have the trial bifurcated into separate phases for liability and compensatory damages.
  • Where punitive damages are claimed, a third phase would be employed to determine punitive damages.
  • While attorney’s fees and expenses under O.C.G.A. 13-6-11 would have to be decided in the third phase, as noted above, this section would no longer apply in tort (or other non-contract) actions.

• Limits on Plaintiff’s Voluntary Dismissals Without Prejudice:
  • C.G.A. § 9-11-41 would be revised to make it similar to Federal Rule of Civil Procedure 41, such that a plaintiff would no longer have the right to file a notice of dismissal before the first witness is sworn.

• A court order would now be required to dismiss a lawsuit after the defendant serves either an answer or a motion for summary judgment, whichever occurs first; alternatively, the case could be dismissed by filing a stipulation of dismissal signed by all the parties.

• Currently, plaintiffs are allowed a one-time “do-over” if they dismiss without prejudice before the first trial witness is sworn.

• C.G.A. § 9-11-12 (regarding answers and preliminary motions to dismiss/for judgment on the pleadings) would be revised to extend the time to file an answer until 15 days after the court: (1) denies the motion (to dismiss, for judgment on the pleadings, for a more definite statement); or (2) postpones its disposition; or, if the motion was for a more definite statement, (3) within 15 days after a more definite statement is served.

• A party can file a motion for a more definite statement without having to first respond to the pleading to the best of their ability, which changes the current rule that makes these motions almost useless.

• While discovery is currently stayed for 90 days after a motion to dismiss is filed (or the motion is denied, if it is sooner), the new law would have the stay continue past that pending a ruling; if the court has not ruled on the motion after 90 days, then a party, for good cause shown, could move to terminate or modify the stay.