The Georgia Tort Reform Act--Changes Made by SB68 and Their Effective Dates

Signing Ceremony for the Georgia Tort Reform Act at the Georgia State Capitol / Image by the Office of the Governor

On April 21, 2025, Governor Kemp signed the much-anticipated SB 68 and SB 69 into law as the Georgia Tort Reform Act. The new law codifying SB 68 contains 8 sections updating the rules of evidence, filing, discovery, and trials in personal injury cases in Georgia courts. Most of the provisions of the new statute are retroactive.  Sections 6 and 7 of the Act, however, are only applicable to causes of action arising on or after April 21, 2025.

The following sections apply retroactively and are therefore applicable to all currently pending tort cases:

Section 1 (Non-economic Damages - revision to OCGA §9-10-184). The Act’s first section limits how and when a party can argue for noneconomic damages before a jury. Noneconomic damages include claims for pain and suffering, loss of enjoyment of life, loss of consortium, etc. To address concerns about arbitrary dollar amounts being used to seek “nuclear” verdicts, this section requires that any evidence concerning noneconomic damages must be tied to actual evidence of a plaintiff’s pain and suffering.

Section 2 (Motion practice - revision to OCGA §9-11-12). This section makes several changes to civil filing procedures. When a defendant files a motion as its first pleading (e.g. a motion to dismiss or motion for more definite statement), the deadline for a defendant to file an answer is postponed until 15 days after the court rules on that motion. Discovery is also put on hold while any pre-answer motion is pending. However, if a defendant files an answer before the court rules on defendant’s motion, the stay on discovery shall immediately terminate.

Section 3 (Limits on Dismissals - revision to OCGA §9-11-41). A plaintiff is still permitted to unilaterally dismiss claims, but they must do so within 60 days of the defendant(s) filing an answer. If a plaintiff wants to dismiss a claim after that time, it must be with the consent of all parties in the lawsuit or upon an order of the court for terms it deems proper. A dismissal of this type will typically be considered “without prejudice,” meaning it is not a dismissal based on the merits of the claims.

Section 4 (Attorney’s Fees - revision to OCGA §9-15-16). A party can only recover attorney’s fees and costs of litigation once based on another party’s statutory violation, even if more than one statute entitles them to the recovery. Additionally, an agreement of a contingency fee is not allowed to be used as evidence when seeking attorney’s fees.

Section 8 (Bifurcation/Trifurcation - creating new code section OCGA §51-12-15). In tort cases, any party can now elect to have a trial split into phases: one phase determining fault, a second phase determining the amount of damages to be awarded to compensate a plaintiff for harm, and a third phase (if applicable) determining the amount of damages to be awarded to punish a defendant and/or allow a party to recover attorney’s fees and costs of litigation. This process is also known as bifurcation (a two-phase trial) or trifurcation (a three-phase trial), and all phases occur back-to-back with the same judge and jury. This new section also defines a couple exceptions that a party can raise to object to bifurcation/trifurcation.

The following sections of the Tort Reform Act only apply to causes of action arising on or after April 21, 2025, the day the Governor signed the Act into law:

Section 5 (Admissibility of Seatbelt Evidence - revision to OCGA §40-8-76). [Edited to add: An amendment to a related bill, SB69, states that the Admissibility of Seatbelt Evidence rule shall not apply retroactively but “only to actions commenced on or after the effective date of this Act” .] Evidence of whether a party was wearing a seatbelt can now be admitted in cases involving motor vehicle accidents. This change is long overdue and will inure to the benefit of many of our clients. Defendants in motor vehicle collisions will now be able to tell the jury that a plaintiff was not wearing a seatbelt and consequently, was injured more severely than if they had chosen to wear a seatbelt. However, seatbelt evidence cannot be used by insurance companies to cancel coverage or increase rates.

Section 6 (Negligent Security - creating new code sections OCGA §51-3-50 through §51-3-57). This statute contains an entirely new Article to regulate negligent security claims. The new law now provides the exclusive remedy in the majority, but not quite all, of the premises liability claims for negligent security where plaintiffs allege injuries caused by the wrongful act of a third party in cases filed against a premises owner, occupier, or security contractor. However, if the wrongful act was committed by an employee, or by another person “under the direction, control, or supervision” of an owner, occupier, or security contractor, then a plaintiff’s cause of action will still arise under pre-existing premises liability law.

Furthermore, under the old law, a duty was triggered when a third-party’s criminal actions were “reasonably foreseeable.” That is still the case, but the new statute narrows the definition to be more favorable to property owners and occupiers. This new section also details how to apportion fault, specifying that unless all third-party wrongdoers are more than 50% at fault, the court must set aside the verdict and order a retrial.

Section 7 (Medical Bills - creating new code section OCGA §51-12-1.1). In some tort actions, evidence of a plaintiff’s health insurance, including workers’ compensation benefits, may now be admissible at trial.  This evidence will serve to determine the “reasonable value” of medically necessary treatment (i.e., a comparison of the amounts charged by a plaintiff’s medical providers and the amounts actually paid). This will allow our clients to reduce inflated awards for medical expenses, commonly known as “phantom damages.”

The Georgia Tort Reform Act is certain to have an immediate impact on personal injury cases generally, which will only increase as the changes to the negligent security paradigm and limitation on phantom damages begin to take effect as well.  The plaintiffs’ Bar has already launched constitutional challenges to seatbelt admissibility and others are sure to follow.  Georgia judges will certainly have their hands full as these cases start to percolate through our courts. For now, however, defendants can enjoy the more level playing field provided by the new Georgia Tort Reform Act.

You can read the full text of SB68 here.

Tort Reform on the Governor’s Desk in Georgia

03/21/25 Update: SB68 has now passed in the House and Senate and is awaiting signature by the Governor.

Senate Bills 68 and 69, two of the largest pieces of tort reform legislation in nearly 20 years, have officially passed the state’s Senate Judiciary Committee in an 8-3 vote. On January 30th, Governor Brian Kemp announced the details of a comprehensive tort reform plan aimed at enhancing fairness in Georgia's legal system and stabilizing insurance costs for both businesses and consumers. According to the U.S. Chamber of Commerce’s Institute of Legal Reform, Georgia’s tort costs reached nearly $20 billion in 2022, which accounts for 2.60% of the state’s GDP. The proposed legislation will make several changes to tort litigation in an attempt to create a more balanced courtroom environment by making significant changes across various titles of the Official Code of Georgia Annotated, specifically Titles 9 (Civil Practice), 13 (Contracts), 40 (Motor Vehicles), and 51 (Torts).

Here are some of the key provisions contain in SB 68 and SB 69:

1. Limitations on Pain and Suffering Testimony: The bill seeks to establish constraints on testimony related to pain and suffering in civil cases, aiming to standardize and potentially reduce subjective assessments of non-economic damages.

2. Revisions to Civil Practice Procedures: SB 68 proposes adjustments to the timing of answers and discovery processes in civil litigation, intending to streamline procedures and enhance efficiency in the judicial system.

3. Provisions for Dismissal of Civil Actions: The bill outlines specific conditions under which civil actions may be dismissed, which could impact the duration and outcome of litigation.

4. Updates to Liability and Damages Calculations, Including Admissibility of Seatbelt Evidence: SB 68 aims to revise existing statutes concerning liability and the assessment of damages in tort cases, potentially affecting how fault and compensation are determined. One major change, which is long overdue, and which will inure to the benefit of many of our clients, will be allowing for evidence of whether a plaintiff was wearing a seatbelt in motor vehicle accident cases. This will put an end to the era where plaintiffs whose injuries were much more severe because they failed to wear their seatbelt can hide that fact from a jury.

The bill has received widespread support from the defense bar as well as local business associations. “This bill will protect both business owners and consumers from frivolous lawsuits, ensuring a more fair legal system,” stated the Georgia Restaurant Association in a LinkedIn post after the Governor’s announcement. “We look forward to collaborating with the governor to advance this critical legislation!” Critics of the bill express concerns for plaintiffs’ rights and skepticism that the reform will create any economic benefit for the average Georgian.

Sources:

1 Governor Kemp Unveils Plan to Tackle Tort Reform and Stabilize Insurance Costs for Hardworking Georgians: https://gov.georgia.gov/press-releases/2025-01-30/gov-kemp-unveils-plan-tackle-tort-reform-and-stabilize-insurance-costs

2 The Growing Burden of Tort Costs on Georgia Households: A Call for Reform: https://instituteforlegalreform.com/blog/the-growing-burden-of-tort-costs-on-georgia-households-a-call-for-reform/

3 The full text of the legislation can be found at: https://www.legis.ga.gov/legislation/69756.

4 https://www.linkedin.com/posts/georgia-restaurant-association_were-standing-with-governor-kemp-for-legal-activity-7290798541273214976-WfrI/?utm_source=social_share_sheet&utm_medium=member_desktop_web

Georgia Passes Law to Shield Businesses from COVID-19 Liability

The Georgia legislature recently passed a bill designed to shield healthcare facilities and other business entities from civil liability related to the spread of COVID-19. On August 5, 2020, Governor Brian Kemp signed the “Georgia COVID-19 Pandemic Business Safety Act,” which provides businesses with a general shield against civil tort lawsuits brought by members of the public, customers, or employees who alleged that they contracted or were exposed to the virus while on the premises.

Although the text of the Act is focused on healthcare providers, it applies to any “healthcare facility, healthcare provider, entity, or individual,” which, consequently, encompasses almost any business in Georgia. The Act shields businesses from COVID-19-related lawsuits except in cases where a business acted with “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”

Additionally, businesses that provide a written warning are further protected by a rebuttable presumption that the person bringing the lawsuit assumed the risk of contracting COVID-19 by entering the business. To qualify for this additional protection under the Act, businesses must post the statutorily-prescribed warning either (1) on a sign at the business premises’ point of entry, or (2) on a receipt or as part of a proof of purchase for entry. Notably, these presumptions and written warning requirements are in addition to, and do not limit, the overall legal immunities created under the Act.

It is important to note that while the Act provides a defense against virus-related tort claims, it does not preclude claimants from bringing claims or filing lawsuits against Georgia businesses – meaning businesses will still incur the costs of defending these actions even if the Act ultimately shields them from liability. Further, the Act only protects Georgia businesses for claims arising from exposures to COVID-19 that occur up through July 14, 2021.

As Georgia business owners certainly know, the COVID-19 pandemic has created a complicated environment filled with uncertainty. While the Act provides businesses with a layer of protection for virus-related claims, owners and managers are encouraged to coordinate their reopening plans with legal counsel to ensure that they are optimally protected.

Georgia Supreme Court Expands Potential Unlimited Punitive Damages in Civil Cases Involving an Intoxicated Defendant

In Reid v. Morris, Case No. S20A0107 (Ga. S. Ct., June 29, 2020), the Supreme Court of Georgia held that under Georgia’ s punitive damages statute, a defendant may be subject to unlimited punitive damages if he commits a tort while intoxicated—even if the tort does not involve driving under the influence. In this case, the two defendants, Stroud and Morris, were drinking together, and though Stroud knew Morris was drunk, had no license, and was known to be reckless, he gave Morris his car keys and let him drive. The plaintiff was injured when his vehicle was struck by the vehicle driven by Morris.

The plaintiff sued both Morris and Stroud. He alleged that Stroud negligently entrusted the vehicle to Morris, and he sought punitive damages against both defendants. The trial court ruled that under O.C.G.A. § 51-12-5.1(f), only an “active tortfeasor” could be liable for punitive damages, which would only be the impaired driver. The Georgia Supreme Court vacated this part of the trial court’s judgment and remanded the case to determine whether Stroud was an “active tortfeasor” and thereby subject to punitive damages.

Construing O.C.G.A. § 51-12-5.1(f), the Court held that an “’active tort-feasor,’ as used in the statute, is not necessarily limited to drunk drivers.” Instead, the statute imposes unlimited punitive damages when “the defendant was intoxicated to the degree that his judgment was substantially impaired” and his “positive acts of negligence” were the proximate cause of the plaintiff’s injury.

Now, after Reid v. Morris, Defendants and liability insurers must consider the potential for unlimited punitive damages in all cases in which alcohol or drugs are involved, not just those involving DUI drivers. For example, if a homeowner has a few too many drinks before deciding to pressure wash the sidewalk in front of his house on a sub-freezing day, a resulting slip and fall accident with minor injuries could subject the homeowner to unlimited punitive damages under O.C.G.A. § 51-12-5.1(f). Thus, defendants and their counsel should anticipate that plaintiffs’ attorneys will now seek to develop evidence of possible intoxication in most every case.

Summary Judgment in Rainy Day Slip and Falls May be a Thing of The Past

Property owners and their insureds take note: a Court of Appeals’ decision will make it much more difficult for property owners to get summary judgment in cases where plaintiffs slip in rain tracked into a building.

In Duff v. Bd. Of Regents of the Univ. Sys. Of Georgia, (hereafter, the “Trial Court Order”), the Plaintiff, a student at Georgia Perimeter College (“GPC”), exited a classroom and slipped and fell on rainwater tracked in by hundreds of students entering the building. It was undisputed that it had not been raining when Plaintiff first entered the building or that she had seen any rain on the floor on her way to class.

the Plaintiff testified that she slipped on “standing water,” but could not describe the depth, width, or quantity of water. She also testified that her clothing was wet when she got up.  A professor who assisted her after the fall testified that Plaintiff fell on a very thin layer of water analogous to the amount of water left after you take “a wet paper towel and wiped it across a surface.” The professor also testified that at the time she fell, students were standing outside of the classroom waiting to get in wearing wet clothes and carrying dripping umbrellas.

The trial court granted GPC’s motion for summary judgment, relying on Georgia precedent that rainwater is not in and of itself a hazardous condition unless plaintiff can demonstrate that there is an “unreasonable accumulation of water.”  Relying on a 2013 Court of Appeals’ case (Season All Flower Shop, Inc. v. Rorie, 323 Ga. App. 529), the trial court also held that summary judgment was appropriate even though the Plaintiff fell in an interior hallway as opposed to an entrance. Specifically, quoting the Appeals Court in Season All Flower, the trial court held that “‘water is apt to be found in any area frequented by people coming in from the rain outside, and not just at the ‘threshold’ of an entrance door.’” 

In a decision that must not be taken lightly by property owners and their insureds, the Court of Appeals reversed. The Court held that Plaintiff’s self-serving testimony regarding “standing water” (despite her inability to describe the dimensions of that water) created a question of fact and precluded summary judgment. Relying on Dickerson v. Guest Svcs. Co., 282 Ga. 771 (2007), the Court of Appeals wrote that although it is “common knowledge that the ground outside gets wet on rainy days, it cannot properly be applied to a portion of an interior space where [people] have no reason to expect water to accumulate on the floor.”

Our insured property owners and managers must take note of the Court of Appeals’ decision in Duff, as it appears to create a duty to continuously monitor during rain, particularly in buildings with heavy foot traffic. As the trial court warned, “[a] departure from the rainy day case law here [could] result in premises owners having to ‘continuously mop during a shower’ each time it rains simply because it is possible that one [person] does not know it is raining outside. This result would essentially eviscerate the protections that are afforded to premises owners on rainy days.” 

At the very least, the Court of Appeals’ decision will make it much more difficult for property owners to get summary judgment in cases where plaintiffs slip in rain tracked into a building, regardless of whether management places mats at the entrance. It all comes down to location. Business owners may feel pretty confident in his/her chances of getting out on a motion for summary judgment when a plaintiff’s slip and fall occurs at the entrance of the premises on a rainy day.  However, after Duff, plaintiffs will have an easier time creating a question of fact when they slip and fall on rain tracked into the interior of the building, which would preclude summary judgment.

Burden on The Insured/Plaintiff to Prove the at-Fault Driver Was an Uninsured Motorist

The Georgia Supreme Court recently clarified that it is the insured/plaintiff, not the UM carrier, who has the burden of proof as to whether the at-fault driver was in fact an uninsured motorist under the plaintiff’s UM policy. In Travelers Home & Marine Ins. Co. v. Castellanos, Case No. S14G1878, 2015 Ga. LEXIS 350 (Ga. S. Ct., June 1, 2015), the defendant did not appear at trial in the underlying case. After the plaintiff obtained a judgment, the defendant’s liability carrier, United Auto, denied coverage to the defendant based on a failure to cooperate in the defense. The plaintiff then sought payment from Travelers, his UM carrier, and eventually filed suit against Travelers for bad faith refusal to pay a covered loss. Travelers raised the defense that United Auto did not “legally deny” the underlying defendant’s liability coverage and, therefore, the defendant was not an “uninsured motorist” under the policy.

The parties filed cross motions for summary judgment. The trial court granted summary judgment to Travelers, holding the plaintiff had failed to present evidence of a legal denial of coverage by United Auto. On appeal, the Georgia Court of Appeals held the trial court had improperly shifted the burden to the plaintiff to produce evidence that would rebut Travelers’ affirmative defense. The Georgia Supreme Court, in turn, reversed the Court of Appeals and upheld the trial court’s grant of summary judgment to the UM carrier.

The Court held that the plaintiff has the burden of proof to show (1) the existence of the UM policy, and (2) that the at-fault driver was an uninsured motorist. Travelers’ policy defined “uninsured motor vehicle” to include a vehicle which is insured but the insurer “legally denies coverage.” Thus, the plaintiff had the burden to show United Auto’s denial of coverage was “legally sustainable.” To do that, the plaintiff had to establish the same elements an insurer needs to justify a denial of coverage based on non-cooperation: (1) the insurer made a reasonable request for cooperation in defending the case, (2) the insured willfully failed to cooperate, and (3) the failure to cooperate prejudiced the defense.

The Court first noted that the uninsured motorist statutes are remedial and must be broadly construed to provide coverage where possible. The Court also acknowledged the difficulty a plaintiff might have in procuring evidence where he is “a stranger to the relationship between the tortfeasor and its insurer.” The solution-and liability insurers should take note-is for the plaintiff to obtain discovery “from the insurer regarding its efforts to contact its insured and its lack of success in securing cooperation.” Although the Court found a presumption of prejudice resulted from the underlying defendant’s absence from trial, the Court held that the plaintiff had failed to show that the liability insurer had reasonably requested the defendant’s cooperation or that the defendant willfully refused to cooperate. Other than statements in the pleadings, the only evidence presented was an unauthenticated letter from United Auto to its insured stating that it was denying coverage because of his non-cooperation. The Court held this was simply not enough because it said nothing about United Auto’s efforts to contact its insured. The plaintiff failed to meet his burden of proof to show that United Auto had legally denied coverage, and the UM carrier was entitled to summary judgment.

When an Uninsured Motorist Carrier Answers in its Own Name, it Must Do So Within the Time Provided or Risk Default Judgment

It is established law in Georgia that when an insurance company is served with a complaint as the plaintiff’s uninsured motorist carrier, the carrier has the option of answering in the name of the defendant, answering in its own name (and raising policy defenses), or filing no answer at all. The Georgia Court of Appeals recently held these options do not give the UM carrier the right to disregard the time requirements of the Civil Practice Act when the carrier voluntarily enters the case by filing an answer in its own name. Kelly v. Harris, Case No. A14A1004, 2014 Ga. App. LEXIS 776 (Ga. Ct. App., Nov. 18, 2014).

In Kelly, the plaintiff sued the defendant for damages arising from an auto accident, and the plaintiff served GEICO as his uninsured motorist carrier pursuant to O.C.G.A. § 33-7-11(d). Service was perfected on GEICO on November 5, 2012. GEICO chose to answer in its own name, raising the policy defense of late notice, but filed the answer on February 14, 2013–101 days after service of the complaint. The plaintiff moved for default judgment against GEICO. The trial court denied the plaintiff’s motion. The Court of Appeals reversed and remanded the case to determine whether the default should stand.

The Court first corrected a “typographical error” in Lewis v. Waller, 282 Ga. App. 8 (2006), a case relied on by GEICO and cited by the trial court. In Lewis, the opinion stated that when the UM carrier answers in its own name, its answer is timely “if filed within 30 days from service of the answer and complaint upon the UMC.” The trial court in Kelly ruled that this meant GEICO timely filed its answer within 30 days of the defendant’s answer. The Court of Appeals held, however, the Lewis opinion should have read “summons and complaint,” not “answer and complaint.” Thus, the thirty day deadline begins to run at the time of service of the summons and complaint on the UM carrier.

The Court rejected the argument that the “flexibility” of the Uninsured Motorist Act, including the option of filing no answer at all, allowed the UM carrier to file a late answer. The Court agreed that the statute allowed the option of joining the action, but found no authority “remotely suggesting that once a [uninsured motorist carrier]voluntarily becomes a party to a lawsuit it is exempt from fully complying with the dictates of the Civil Practice Act.” Thus, the Court flatly rejected the notion that a UM carrier can never be found in default.

Plaintiff's Verdict in Trip And Fall Case Reduced Due to Evidence of Intoxication

In a recent case, Jarvis v. Georgia World Congress Center Authority et al., No. 10EV010884, a Fulton County jury delivered an initial verdict of $400,000 against the Defendant security company for injuries sustained by the Plaintiff, Alicia Jarvis, outside the Georgia Dome. The verdict was subsequently reduced after the panel assigned 43% of the liability to Plaintiff on the grounds that she was intoxicated at the time of her fall.

Evidence revealed that Plaintiff had been tailgating and drinking before a Falcons’ game. Plaintiff, in an attempt to avoid the long lines at the admission gates, decided to take a short-cut suggested by a security worker at the stadium. The short-cut involved crossing a pine straw berm outside of the stadium. As Plaintiff was navigating the short-cut, she tripped and fell, breaking her ankle. Witnesses stated that Plaintiff smelled of alcohol. Records also indicated that she had had beer, as well as rum drinks, that day before the fall. Plaintiff rested without calling any liability experts.

During voir dire (jury selection), the Fulton County jury panel had expressed concerns about their ability to be fair and impartial when they heard alcohol was involved, but ultimately, the jury did not find that the evidence of Plaintiff’s intoxication barred recovery. Instead, that evidence was used to reduce her recovery by almost half, still resulting in a recovery of $228,000.

This case exemplifies the age-old maxim: No good deed goes unpunished. The bigger lesson for our clients in these cases, however, lies in the jury’s failure to find that Plaintiff’s intoxication constituted negligence equal to that of the security guard. Insurance companies should take note of this case when setting reserves.