TAYLOR, EXR. v. THE DEVEREUX FOUNDATION, INC. (And Vice Versa)

SUPREME COURT OF GEORGIA
March 15, 2023
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
It appearing that the attached opinion decides a second-term
appeal, which must be concluded by the end of the December Term,
it is ordered that a motion for reconsideration, if any, must be
received in the Supreme Court E-Filing/Docket (SCED) System by
2:00 p.m. on Wednesday, March 22, 2023.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
In the Supreme Court of Georgia
Decided: March 15, 2023
S22A1060. TAYLOR v. THE DEVEREUX FOUNDATION, INC. et
al.
S22X1061. THE DEVEREUX FOUNDATION, INC. et al. v.
TAYLOR.
WARREN, Justice.
This appeal and cross-appeal stem from the sexual assault of a
15-year-old girl, Tia McGee (whose interests are represented by Jo-
Ann Taylor, the executor of her estate), while McGee was living in a
behavioral health facility that was operated by the Devereux
Foundation (“Devereux”).1 The sexual assault was perpetrated by
Jimmy Singleterry, a Devereux employee who was charged with
supervising McGee and other girls in a cottage where they were
living at the Devereux facility. At trial, Devereux admitted that
“Devereux breached the legal duty of ordinary care owed to Tia
1Although McGee initially filed suit, Taylor later replaced McGee as the
plaintiff, first as McGee’s conservator and then (following McGee’s death after
the trial) as the executor of McGee’s estate.
1
McGee for her safety from sexual assault and that the breach of
Devereux’s legal duty contributed to Jimmy Singleterry’s sexual
assault of Tia McGee.” The jury returned a verdict for $10,000,000
in compensatory damages, finding both Devereux and Singleterry,
the employee who assaulted McGee, at fault, and $50,000,000 in
punitive damages against Devereux. The trial court ultimately
reduced the jury’s punitive-damage award from $50,000,000 to
$250,000, consistent with the statutory cap on punitive damages
found in OCGA § 51-12-5.1 (g).
Taylor contends that OCGA § 51-12-5.1 (g) violates the rights
to trial by jury, separation of powers, and equal protection
guaranteed by the Georgia Constitution. As the party challenging
the constitutionality of a statute, Taylor has the burden to show that
there is a “clear and palpable” conflict between OCGA § 51-12-5.1
(g) and the Georgia Constitution, “and this Court must be clearly
satisfied of its unconstitutionality.” Barnhill v. Alford, 315 Ga. 304,
311 (882 SE2d 245) (2022) (citation and punctuation omitted). We
conclude that Taylor has not satisfied that burden here.
2
Following the framework this Court laid out in Atlanta
Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (691 SE2d 218)
(2010), and earlier cases addressing Georgia’s constitutional right to
trial by jury, we conclude that although Taylor’s claim for premises
liability would have been available in Georgia in 1798,2 and
although juries were authorized to award in certain instances
damages to punish the defendant and not merely to compensate the
plaintiff, Taylor has failed to show that a Georgia jury in 1798 was
authorized to award punitive damages for the kind of claim she
brought in 2017. Specifically, Taylor has failed to show that a jury
would have been authorized to award punishment damages for a
claim alleging that the defendant acted only with an “entire want of
care,” rather than for a claim alleging that the defendant engaged
in intentional misconduct. Thus, Taylor has failed to prove that the
punitive damages she seeks are within the scope of her Georgia
constitutional right to a jury trial.
2 As we explain more below in Division III (a), 1798 is the date we have
historically used to evaluate the Georgia Constitution’s “inviolate” right to trial
by jury.
3
We further conclude that the punitive damages cap contained
in OCGA § 51-12-5.1 (g) does not violate the separation of powers or
equal protection guarantees in the Georgia Constitution. As a
result, we reject Taylor’s challenges to OCGA § 51-12-5.1 (g) under
the Georgia Constitution and affirm the trial court’s application of
OCGA § 51-12-5.1 (g) to the jury’s damages award.
In Devereux’s cross-appeal, we apply the “any evidence”
standard in reviewing the jury’s award of punitive damages and
attorney fees and conclude that there was evidence to support
awarding both. Applying that same standard, we further conclude
that there was evidence to support the amount of attorney fees
awarded and therefore affirm the trial court’s attorney fee award.
Finally, we conclude that the trial court did not err in starting the
accrual of post-judgment interest at the time the jury verdicts for
compensatory and punitive damages were returned by entering the
judgments for those verdicts nunc pro tunc. Thus, we affirm the
trial court’s judgments in both the appeal and cross-appeal.
4
I. Background
In April 2012, 15-year-old Tia McGee began living at
Devereux’s Georgia facility, receiving treatment for mental
conditions stemming, at least in part, from a history of sexual abuse.
In May, McGee was sexually assaulted by James Singleterry, a
direct-care professional at Devereux.
After McGee was assaulted, she filed a lawsuit against
Devereux and Gwendolyn Skinner, the executive director of
“Devereux’s Georgia Treatment Network,”3 alleging general
negligence; negligent hiring, training, and supervision; professional
negligence; respondeat superior; and failure to keep the premises
safe. 4 She also requested punitive damages under OCGA § 15-12-
3 At the close of Taylor’s case-in-chief, Skinner moved for a directed
verdict as to her, which was granted on the ground that she was a corporate
officer who did not directly participate in employee training.
4 Commonly referred to as “premises liability,” this claim is based on a
landowner’s general “duty to keep its premises safe for visitors.” Cham v. ECI
Mgmt. Corp., 311 Ga. 170, 173 (856 SE2d 267) (2021). See also OCGA § 51-3-
1 (“Where an owner or occupier of land, by express or implied invitation,
induces or leads others to come upon his premises for any lawful purpose, he
is liable in damages to such persons for injuries caused by his failure to exercise
ordinary care in keeping the premises and approaches safe.”).
5
5.1, alleging that Devereux’s conduct “was such as to evince an
entire want of care and indifference to the consequences of such
conduct,” and expenses of litigation under OCGA § 13-6-11, alleging
that “Defendants have acted in bad faith, have been stubbornly
litigious, and/or have caused Plaintiff unnecessary trouble and
expense.” Before trial, Devereux conceded that it acted negligently.
A jury trial on damages and attorney fees was held from November
12 to 19, 2019, and the following evidence was presented.
A. The Sexual Assault
On April 16, 2012, when McGee was 15 years old, she was
admitted to Devereux’s Georgia facility to receive in-patient
treatment. Her admission evaluation noted that she had a history
of harming and threatening to kill herself; that she had repeatedly
been sexually abused, which “may have led to sexual reactivity”; and
that she reported “having obsessive thoughts about sex.” Five days
after her admission, McGee was involved in a sexual incident, where
a male patient touched her “on top of her clothes between her
thighs.” The next day, McGee asked a different male patient to
6
“touch her . . . vaginal area over her clothes,” which he did. And on
May 10, a patient reported that another patient had been “fingering”
McGee. Karsten Hartman, a Devereux employee who helped with
training staff and investigating incidents like these, acknowledged
during his testimony that one of the reasons these incidents took
place was “poor supervision” and that “further training was needed
of whatever staff was responsible for the kids at that time.” He did
not know, however, if that staff was given any additional training or
disciplinary action.
On May 17, about a month after McGee’s admission, Akeavia
Mays and Jimmy Singleterry, direct-care professionals, were
assigned to the 3:00 to 11:00 p.m. shift to supervise the girls’ cottage
where McGee was staying. At about 10:30 p.m., Singleterry went
outside the cottage for about 12 minutes. During this time, he
walked to McGee’s bedroom window and stuck his penis inside, and
McGee performed oral sex on him. Mays, who was unaware of
Singleterry’s actions, left the cottage at about 10:50 p.m. to go to the
bathroom before clocking out for the day. Singleterry then went into
7
McGee’s room and had sexual intercourse with her. When the
direct-care professional assigned to the next shift, Olenette Hudson,
arrived at the cottage at 11:15 p.m., Singleterry was standing in the
doorway to the cottage, which Hudson testified was “unusual” but
did not cause her to suspect that he had engaged in sexual activity
with a resident.
McGee reported this incident two days later to Tony Foster,
another direct-care professional. McGee was taken to the hospital,
where a rape kit was administered. The police were notified and
conducted an investigation, including speaking to McGee, resulting
in Singleterry entering a guilty plea on October 29, 2013, to one
count each of child molestation, statutory rape, and sexual assault
against a person in custody. 5 As part of Devereux’s internal
investigation, a “root cause analysis” was conducted, which
identified one of the “most proximate factors” of the crimes as
Singleterry’s assignment to a female cottage and his “opportunities
5 For each count, Singleterry was sentenced to concurrent sentences of
20 years, with the first 12 in prison and the remainder on probation.
8
to be alone with [McGee] by taking an unauthorized break and his
co-worker leaving the shift early.” The report also noted that
because Mays left early without notifying her supervisor, “the unit
was not in compliance with the required staff[-]client ratio for 25
minutes.” 6
McGee continued to receive treatment at Devereux.
Immediately after the assault, she was given “one-to-one
supervision,” but she was not moved from the cottage where the
assault happened. Dr. Nancy Aldridge, a psychotherapist who
interviewed McGee in 2018 and 2019, testified that “generally
speaking,” it is “not a good idea” to keep the assault victim in the
same location “because it causes them . . . to think about [the
incident], to relive it” and to feel unsafe. Dr. Aldridge further
explained that McGee’s therapy notes indicate that, although the
therapists continued to speak with McGee about her history of
6 According to Devereux’s supervision ratios that were in place before
McGee was assaulted, two direct-care professionals were required to supervise
the cottage during the 3:00-11:00 p.m. shift. Only one was required on the
11:00 p.m.-7:00 a.m. shift, when residents were expected to be asleep.
9
sexual abuse, they did not specifically address Singleterry’s sexual
assault of her. Dr. Aldridge testified that this lack of
acknowledgement or apology was “significant” because McGee “was
never supported as to what happened to her.”
When McGee was interviewed by Dr. Aldridge in 2018, McGee
indicated that she “felt guilty” and “blamed [her]self” after this
incident and that she had “flashbacks” related to the incident.
McGee was discharged from Devereux’s facility on June 29, 2012.
Her discharge summary noted that while at Devereux’s facility, a
therapist worked with McGee to overcome her sexual trauma and
that in the “later half of her treatment,” McGee “interact[ed] more
appropriately with her peers and staff and . . . displayed better
coping skills” but would still “need ongoing therapy to focus on
sexual trauma history and sexual acting out behaviors.” McGee died
after the trial, in August 2020.
B. Devereux’s Employment Policies
Mary Esposito, an assistant executive director at Devereux,
testified that the procedure for hiring a direct-care professional,
10
which was applied to Singleterry, required contacting the
applicant’s references; doing a background check through an
independent company; sending the applicant’s information to the
Chamblee Police Department, which also did a background check;
and sending the applicant’s fingerprints to “the State agency” to be
cleared. 7 None of this information about Singleterry indicated any
history of sexually assaulting or otherwise abusing children or
adults. Singleterry also signed a statement, as required of all
Devereux direct-care professionals, that he had “never been shown
by credible evidence . . . to have abused, neglected, sexually
exploited, or deprived a child or adult or to have subjected any
person to serious injury as a result of intentional or grossly negligent
misconduct.” Mays testified that Singleterry made her
“uncomfortable” and he seemed “creepy” and like a “womanizer,” but
7 Skinner testified that Devereux’s background check procedure was
required by the State Department of Behavioral Health because Devereux is a
“psychiatric residential treatment facility.” Skinner acknowledged that a
background check had been run on all of the Devereux employees, including on
those who later abused patients, saying, “[a] background check is not going to
keep someone from abusing a child.”
11
acknowledged that he had not said or done anything to make her
think he posed a risk of sexually harming any patient.
Testimony from Hartman and Singleterry’s employment
documents showed that Singleterry, like all Devereux direct-care
professionals, was trained about maintaining appropriate
boundaries and sexual-risk reduction. Mays and Hudson, however,
testified that they were not given any training about how to deal
with patients, like McGee, who were “sexually reactive.” Mays
further testified that she was not told of McGee’s “sexual reactivity,”
and if she had been, she would not have left her shift early, knowing
that the only other direct-care professional supervising the cottage
was a man. Foster testified that girls’ units were required to be
supervised by at least one female employee.8 Hudson testified that
sometimes shifts did not have the required ratios of staff to patients
8 Foster testified that he understood that one of the reasons for this
gender-based policy was “the possibility” that a staff member could interact or
be alleged to have interacted “inappropriately with a patient.” Skinner,
however, testified that Devereux had “no gender-specific policy, except saying
that same-sex employees will supervise staff when it is on matters that require
privacy: restroom, things like that” and that sometimes it was okay to have a
male staff member supervise a female cottage alone, including if all of the girls
were “in bed asleep.”
12
and that she had seen instances of a male staff member supervising
a female cottage alone. She testified that Devereux management
was “already aware” of this situation and when she complained,
nothing was done about it.
Mays testified that Devereux was frequently short-staffed, and
Hartman testified that Singleterry was assigned to a female cottage
because Devereux had “a limited staff on the shift” and “a lot of new,
unseasoned staff.” Hartman further explained that Singleterry was
assigned to the cottage where McGee lived because the girls in that
cottage “were better behaved” than the girls in the other cottage and
they had an early bedtime because most of the girls were on the “red
phase.” 9 Foster testified that Singleterry was usually assigned to a
male unit and he thought that if Singleterry was assigned to a
female cottage, “that would be a mismatch for him.”
Hudson testified that although Devereux’s management was
aware of the problem of direct-care professionals leaving their shifts
9 Hartman also testified, however, that “red phase” patients were the
“lowest level . . . behavior-wise” and were “the most challenging ones to deal
with.” McGee was classified as “red phase” at that time.
13
early, no one disciplined those who left early or otherwise addressed
the problem. Mays similarly testified that she had left her shift
early before and not gotten in trouble, and she did not get in trouble
for leaving early on the night of the sexual assault.10 Foster testified
that “people did turn a blind eye to a lot of things at Devereux.” He
also testified that he knew that people “often” left their shift at the
cottages early, describing it as a “loophole,” where staff would leave
the cottage and “go to the main building and use the restroom and
just kind of mingle around there for 15 minutes” until it was time to
clock out. He testified, however, that people were disciplined for
leaving early if the supervisor found out.
As part of Devereux’s investigation into the sexual assault,
some changes to Devereux’s hiring and training procedures were
suggested, including investigating the use of an extra screening
10 Foster testified that he was told that Mays was fired for her part in
allowing the assault, but Mays testified that she chose to leave Devereux
because she felt “overall afraid” and that after a particular incident “where a
client pushed a door on [her],” she “couldn’t do it anymore.” Skinner testified
that Mays was not disciplined for leaving early on the night of the assault
because Devereux was waiting until the police investigation was finished, and
Mays left her job at Devereux before then.
14
service in the hiring process, developing a video to demonstrate how
proper shift exchange should be done, incorporating role plays that
“focus on the risks of working with sexually reactive youth” into the
training for direct-care professionals, and adding specific
information in each client’s treatment plan to address any “sexually
reactive” behavior. None of the Devereux employees could testify as
to whether any of these actions were actually implemented, and
Foster specifically testified that he had never seen a video about
shift change or participated in role-plays for interacting with
“sexually reactive” youth.
C. Other Similar Incidents
At trial, Taylor introduced evidence of incidents of sexual
abuse at Devereux facilities in other states: three incidents before
2012 that involved a Devereux staff member sexually assaulting a
patient and five that happened after 2012. In addition, with respect
to the Georgia facility, Taylor introduced evidence that a therapist
who was employed at the facility was arrested in 2017 for possession
of child pornography and admitted that he was “grooming” two
15
patients. Also, Foster testified that in 2013, two or three female
patients in the Georgia facility held another female patient down
and penetrated her with pencils, and Hudson testified that in 2013,
a group of male patients “pulled out their penises and spanked
[another male patient] in the face and then they sat in his face.”
Foster and Hudson each testified that they did not “know where the
staff was” during the incidents.
When these incidents were introduced, the trial court gave a
limiting instruction, directing that “other similar incidents that
occurred prior to May 17th, 2012” were admitted for the limited
purpose of “show[ing], if they do, knowledge, notice, and intent on
the part of the defendants” and “[e]vidence of other similar incidents
that occurred after May 17th, 2012” was “admissible on the issue of
punitive damages.” Similar instructions were given in the final
charge to the jury.
D. The Verdict
Because Devereux had conceded before trial that it acted
negligently, the trial court told the jury that Taylor and Devereux
16
stipulated that
Devereux breached the legal duty of ordinary care owed
to Tia McGee for her safety from sexual assault and that
the breach of Devereux’s legal duty contributed to Jimmy
Singleterry’s sexual assault of Tia McGee. Defendant also
admits that Devereux is legally responsible for any harm
which it proximately caused Tia McGee to suffer. And
Devereux further admits that Tia McGee should receive
some compensatory damages.
At the close of Taylor’s evidence, Devereux moved for a directed
verdict on the punitive damages, which was denied. In closing
argument, Devereux’s attorney argued that Devereux’s “one
mistake” of Mays leaving early “makes Devereux liable,” but told the
jurors they had to decide “apportionment, causation, and damages,”
arguing that they should assign more fault to Singleterry than to
Devereux and that Taylor had not proven that all of the damages
she requested were caused by the assault at Devereux as opposed to
the other trauma McGee had suffered in her life before her time at
Devereux. As to punitive damages, Devereux’s attorney argued that
Devereux had taken a number of steps to protect McGee, showing
that there was not “an entire lack of any care whatsoever” provided.
17
On November 18, 2019, the jury found that McGee had suffered
$10,000,000 in compensatory damages and that Devereux was 50
percent at fault and Singleterry was 50 percent at fault. The jury
also found that Devereux was liable for punitive damages and for
expenses of litigation because “they acted in bad faith in the
underlying transaction” and “have been stubbornly litigious or
caused unnecessary trouble or expense.”11 On November 19,
additional evidence was presented on the issue of punitive damages,
which included evidence of Devereux’s financial situation. The jury
found that Devereux was liable for $50,000,000 in punitive damages.
The parties agreed to submit the question of the amount of expenses
of litigation to the trial court, and the jury was dismissed.
On July 1, 2021, the trial court held a hearing on the issue of
whether the statutory punitive damages cap in OCGA § 51-12-5.1
(g), which says that, with a few exceptions not applicable here, the
11 The expenses of litigation issue was presented in two questions on the
verdict form: if Devereux was liable for expenses because it “acted in bad faith
in the underlying transaction” and if Devereux was liable for expenses because
it had “been stubbornly litigious or caused unnecessary trouble and expense.”
The jury answered “Yes” to both questions.
18
amount of punitive damages “shall be limited to a maximum of
$250,000.00,” violated the Georgia Constitution, as well as on the
appropriate measure of attorney fees. On February 8, 2022, the trial
court entered three orders: one ruling that OCGA § 51-12-5.1 (g) did
not violate the Georgia Constitution and thus reducing Taylor’s
punitive damages award to $250,000 in accord with the statute; one
finding that Taylor was entitled to 40 percent of the jury’s
enforceable verdict as attorney fees; and one entering the final
judgment requiring Devereux to pay $5,000,000 in compensatory
damages (50 percent of $10,000,000) and $250,000 in punitive
damages (the capped amount of punitive damages allowed under
OCGA § 51-12-5.1 (g))—both nunc pro tunc to the date of the jury
verdict, so that post-judgment interest ran from the date of the
verdict—as well as $2,100,000 in attorney fees and $288,055.03 in
litigation expenses.12
12 The award of attorney fees and litigation expenses was not made nunc
pro tunc, and the court’s order made clear that post-judgment interest would
run on these amounts from the court’s February 8, 2022 order.
19
S22A1060
II. Taylor’s Appeal
In her appeal, Taylor raises three arguments, all of which are
focused on whether OCGA § 51-12-5.1 (g)—which the trial court
applied to reduce the punitive damages she received from
$50,000,000 to $250,000—violates the Georgia Constitution. 13
Taylor argues, as she did in the trial court, that the $250,000 limit
is unconstitutional because it violates three rights protected by the
Georgia Constitution: (1) the right to trial by jury, Ga. Const. of 1983
Art. I, Sec. I, Par. XI, (2) the guarantee of separation of powers, Ga.
Const. of 1983 Art. I, Sec. II, Par. III, and (3) the guarantee of equal
protection, Ga. Const. of 1983 Art. I, Sec. I, Par. II.
Before we address each of Taylor’s challenges to OCGA § 51-
12-5.1 (g) based on the Georgia Constitution, we will set out the
burden that she must meet to prevail on any of them; the statute
she challenges; and specific arguments pertaining to her claim for
13 Taylor does not assert any argument on appeal that OCGA § 51-12-5.1
(g) violates the United States Constitution.
20
punitive damages.
A. Taylor’s Burden to Succeed on Her Constitutional
Claims
“Duly enacted statutes enjoy a presumption of
constitutionality,” and the party challenging the statute bears the
burden to show that the statute “manifestly infringes upon a
constitutional provision or violates the rights of the people.”
Nestlehutt, 286 Ga. at 732 (citation and punctuation omitted).
[A]ll presumptions are in favor of the constitutionality of
an Act of the legislature and [ ] before an Act of the
legislature can be declared unconstitutional, the conflict
between it and the fundamental law must be clear and
palpable and this Court must be clearly satisfied of its
unconstitutionality. Moreover, because statutes are
presumed to be constitutional until the contrary appears,
the burden is on the party alleging a statute to be
unconstitutional to prove it.
Barnhill, 315 Ga. at 311 (citation and punctuation omitted). See
also Craig v. Maltbie, 1 Ga. 544, 547 (1846) (“[W]hile it is a clear
position, that if a legislative act oppugns a constitutional principle,
the former must give way, and that in every such case it will be the
duty of the court to declare the statute null, on the score of
21
repugnance. Still, before the court [w]ill be justifiable in doing this,
the opposition between the constitution and the law must be plain
and palpable.”); Flint River Steamboat Co. v. Foster, 5 Ga. 194, 209
(1848) (“It must be a very clear and palpable case, which would
warrant the Judiciary to exercise this delicate duty of declaring a
law unconstitutional[.]”); Carey v. Giles, 9 Ga. 253, 258 (1851) (“If
the constitutionality of the Acts [at issue] was the least doubtful, it
would be our duty to carry them into effect. To set them aside, their
repugnancy to the Constitution should be most manifest. It is
contrary to the practice and policy of this Court, as it should be of
all others, rashly and lightly to pronounce void a solemn Act of the
Government; the case must be clear to justify it.”).
B. Taylor’s Claim for Punitive Damages
In the suit underlying this appeal, Taylor sought punitive
damages under OCGA § 51-12-5.1—Georgia’s punitive damages
statute. Because each of Taylor’s constitutional claims—particularly
Taylor’s claim based on the right to trial by jury in Georgia—
requires not only an understanding of Georgia’s historical right to
22
trial by jury, but also of modern punitive damages, we first turn to
the punitive damages statute under which Taylor sought and was
awarded damages.
(1) OCGA § 51-12-5.1 provides for punitive damages
in certain circumstances and also places restrictions
on some of those damage awards.
Taylor moved for punitive damages under OCGA § 51-12-5.1,
which was enacted in 1987, see Ga L. 1987, p. 915.14 OCGA § 51-12-
5.1 (a) explains that “[a]s used in this Code section, the term
‘punitive damages’ is synonymous with the terms ‘vindictive
damages,’ ‘exemplary damages,’ and other descriptions of additional
damages awarded because of aggravating circumstances in order to
penalize, punish, or deter a defendant.” Subsection (b) of the same
statutory provision says
Punitive damages may be awarded only in such tort
actions in which it is proven by clear and convincing
evidence that the defendant’s actions showed willful
misconduct, malice, fraud, wantonness, oppression, or
that entire want of care which would raise the
14 The statute has been amended three times since then, but that does
not affect our analysis, because we are concerned with Georgia law as to
punitive damages before 1798 and the law applicable to the punitive damages
claim Taylor now brings.
23
presumption of conscious indifference to consequences.
And subsection (c) makes clear that: “Punitive damages shall be
awarded not as compensation to a plaintiff but solely to punish,
penalize, or deter a defendant.”
As noted above, Taylor alleges that subsection (g), which limits
punitive damages awards for certain tort actions, violates the right
to a trial by jury. Subsection (g) says:
For any tort action not provided for by subsection (e) or (f)
of this Code section in which the trier of fact has
determined that punitive damages are to be awarded, the
amount which may be awarded in the case shall be
limited to a maximum of $250,000.00.
The subsection (e) carve-out applies to “tort case[s] in which the
cause of action arises from product liability.” And the subsection (f)
carve-out makes clear that in tort cases other than products-liability
cases, the $250,000 cap does not apply when an active tort-feasor
acts (or fails to act) with “the specific intent to cause harm” or while
under the influence of certain intoxicants. It says:
In a tort case in which the cause of action does not arise
from product liability, if it is found that the defendant
acted, or failed to act, with the specific intent to cause
24
harm, or that the defendant acted or failed to act while
under the influence of alcohol, drugs other than lawfully
prescribed drugs administered in accordance with
prescription, or any intentionally consumed glue, aerosol,
or other toxic vapor to that degree that his or her
judgment is substantially impaired, there shall be no
limitation regarding the amount which may be awarded
as punitive damages against an active tort-feasor but
such damages shall not be the liability of any defendant
other than an active tort-feasor.[15]
As these statutory provisions show, the punitive damages
available today under OCGA § 51-12-5.1: (1) are awarded “solely to
punish, penalize, or deter,” and (2) may be awarded only if the
defendant’s actions showed a state of mind indicating some extra
degree of culpability, such as “willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care which would
raise the presumption of conscious indifference to consequences.”
OCGA § 51-12-5.1 (b), (c). Punitive damages may not be awarded
under OCGA § 51-12-5.1 when the defendant’s actions sound only in
negligence; mere negligence, or even gross negligence, is not
sufficient. See MDC Blackshear, LLC v. Littell, 273 Ga. 169, 173
15 It is undisputed that subsections (e) and (f) do not apply to this case.
25
(537 SE2d 356) (2000). However, intentional misconduct is not
required either; acting with an “entire want of care” and “conscious
indifference to consequences” can be enough. See OCGA § 51-12-5.1
(b); Tyler v. Lincoln, 272 Ga. 118, 120 (527 SE2d 180) (2000) (“A
conscious indifference to consequences relates to an intentional
disregard of the rights of another. Wilful and intentional
misconduct is not essential.”) (citations and punctuation omitted,
emphasis in original).
(2) Taylor’s claim for punitive damages relies on her
allegation that Devereux acted with an “entire want
of care.”
At trial, Taylor focused on the “entire want of care” state of
mind found in OCGA § 51-12-5.1 (b), arguing to the jury that
Devereux “just didn’t care” and acted with an “entire want of care”
and “a total lack of disregard.” Taylor made no claim at trial that
her claim fit under the carve-out to the punitive damages cap in
OCGA § 51-12-5.1 (f) for claims that “the defendant acted, or failed
to act, with the specific intent to cause harm,” and she did not
contend at trial that Devereux engaged in any intentional
26
misconduct that led to McGee’s sexual assault; rather, she argued
that Devereux’s “entire want of care” toward protecting McGee
allowed McGee to be sexually assaulted. 16
III. Right to Trial By Jury
We now turn to Taylor’s primary argument: that the portion of
OCGA § 51-12-5.1 (g) that establishes a $250,000 cap on the amount
of punitive damages a plaintiff may recover violates the Georgia
Constitution’s right to trial by jury. 17
A. The Georgia Constitution’s Right to Trial by Jury
The Georgia Constitution of 1983 provides: “The right to trial
16 Specifically, even to the extent Taylor alleged in her complaint that
Devereux was liable for punitive damages based on acting with states of mind
other than an “entire want of care,” she did not make any such argument to
the jury.
17 We note that on this question we were assisted by several amici curiae
who filed briefs in this case, and whom we thank: American Medical
Association and Medical Association of Georgia; Child USA and National
Center for Victims of Crime; Georgia Defense Lawyers Association; Georgia
Trial Lawyers Association and American Association for Justice; Georgians for
Lawsuit Reform; Professors Anthony J. Sebok and John C. Goldberg; and
United States Chamber of Commerce, Georgia Chamber of Commerce, and
American Tort Reform Association. We also thank the Attorney General of
Georgia, who presented oral argument as amicus curiae in addition to filing a
brief.
27
by jury shall remain inviolate, except that the court shall render
judgment without the verdict of a jury in all civil cases where no
issuable defense is filed and where a jury is not demanded in writing
by either party.” Ga. Const. Art. I, Sec. I, Par. XI (a).
The right to a jury trial has been understood as an important
right in Georgia since the State’s founding. See, e.g., Flint River, 5
Ga. at 206 (describing, in 1848, the right to a jury trial as “one of the
great elements, the greatest characteristic of free government”);
Craig, 1 Ga. at 546 (explaining, in 1846, that the Court would not
“wish to curtail or abridge the right of trial by jury, believing, as we
do, . . . that the more it is searched into and understood, the more it
is sure to be valued,” and describing the right to a jury trial as a
“principal bulwark of English and American liberties”). Indeed, a
version of this jury-trial provision has been included in almost every
Georgia Constitution since 1777, with “very similar” language. De
Lamar v. Dollar, 128 Ga. 57, 59 (57 SE 85) (1907).18 And critical to
18The provision was not included in the Constitutions of 1861 and 1865,
see De Lamar, 128 Ga. at 59, a point neither party in this case raises on appeal.
28
our analysis in this case, is that for almost 175 years, this Court has
consistently interpreted the Georgia Constitution’s right to a jury
trial as meaning that “[t]he people of this State . . . are entitled to
the trial by jury, as it was used in the State prior to the Constitution
of [17]98.” Tift v. Griffin, 5 Ga. 185, 189 (1848) (emphasis in
original). See also Flint River, 5 Ga. at 207-208 (explaining, in 1848:
“The provision in our State Constitution, that trial by jury, as
heretofore used, shall remain inviolate, means that it shall not be
taken away, as it existed in 1798, when the instrument was adopted,
and not that there must be a jury trial in all cases.”) (emphasis in
original); Williams v. Overstreet, 230 Ga. 112, 116 (195 SE2d 906)
(1973) (“‘The provision in the Constitution of Georgia, that ‘trial by
jury, as heretofore used, shall remain inviolate’ means, that it shall
not be taken away in cases where it existed when that instrument
was adopted in 1798; and not that there must be a jury in all cases.’”)
(citing Flint River, 5 Ga. at 195); Benton v. Georgia Marble Co., 258
We note, however, that—as discussed further below—the Georgia
Constitution’s jury-trial provision has long been interpreted as preserving the
jury trial right as it existed in 1798. See, e.g., Nestlehutt, 286 Ga. at 733.
29
Ga. 58, 66 (365 SE2d 413) (1988) (“It has been held that the Georgia
Constitution (Art. I, Sec. I, Par. XI) guarantees the right to a jury
trial only with respect to cases as to which there existed a right to
jury trial at common law or by statute at the time of the adoption of
the Georgia Constitution in 1798.”); Nestlehutt, 286 Ga. at 733 (“It
is well established that Art. I, Sec. I, Par. XI (a) ‘guarantees the right
to a jury trial only with respect to cases as to which there existed a
right to jury trial at common law or by statute at the time of the
adoption of the Georgia Constitution in 1798.’”) (citing Benton, 258
Ga. at 66).19
19 It is not entirely clear why these cases pointed to the Georgia
Constitution of 1798 as the touchstone of our Constitution’s jury-trial right,
rather than looking to Georgia’s earlier Constitutions from 1777 or 1789, which
contained similar provisions protecting the right to a jury trial.
Regarding the 1798 date, we note that two of the cases cited above, Tift
and Flint River, were decided when the Constitution of 1798 was the operative
Constitution. We also note that the jury-trial provision in the Constitution of
1798 “contains the words, ‘as heretofore used in this State,’ which do not
appear in the other instruments.” De Lamar, 128 Ga. 59. See also Ga. Const.
of 1798 Art. IX, Sec. V. Although no reported case expressly focuses on the
meaning of this language, it is possible that it implicitly incorporated all of
Georgia’s prior history and practice with respect to jury trials, including the
years before 1798.
The dissenting opinion suggests that Nestlehutt (and all the parties and
amici in this case) were wrong to follow our line of decisions identifying 1798
as the relevant date for determining the scope of the right to trial by jury. The
30
The consequence of this well-settled 1798 cutoff is significant.
If the type of claim at issue in this case is one as to which there
existed a right to trial by jury as of 1798, our Constitution’s right to
a trial by jury applies in the same way the right applied in 1798. For
other types of claims, the right does not attach. Accordingly, we look
to Georgia law from 1798 and earlier in evaluating the scope of
dissent does not, however, engage in any meaningful stare decisis analysis to
show that we should overturn Nestlehutt or the cases it relies on it with respect
to the key date for evaluating the right to trial by jury under the Georgia
Constitution.
What is more, the dissenting opinion contends that we do not even need
to engage in a stare decisis analysis before overruling Nestlehutt and other
cases setting 1798 as the key date because stare decisis is not required to
“correct[] our identification of Georgia’s first constitution.” Dissent Op. 6 n.5.
But neither Nestlehutt nor the opinions cited above purport to identify the 1798
Constitution as Georgia’s first Constitution—the error that the dissenting
opinion appears to identify in Nestlehutt and Benton. It is true that a few other
cases say that we should look to Georgia’s “first Constitution” in analyzing the
scope of our State’s constitutional right to a jury, but these cases are
ambiguous about which Constitution that is. See Metropolitan Cas. Ins. Co. of
N.Y. v. Huhn, 165 Ga. 667, 672 (142 SE 121) (1928) (explaining that “[i]n a
number of cases in this state it has been held that in civil actions the right of
jury trial exists only in those cases where the right existed prior to the first
Constitution,” but not clarifying the date of that Constitution); Strange v.
Strange, 222 Ga. 44, 45 (148 SE2d 494) (1966) (noting “an unbroken line of
decisions” from this Court holding “that in civil actions the right of a jury trial
exists only in those cases where the right existed prior to the first Georgia
Constitution,” and citing Metropolitan). We need not resolve this mystery
today, however, given that no one has asked us to reconsider our precedents
setting the key date at 1798. Accordingly, we will follow those precedents.
31
Georgia’s right to trial by jury. That law includes not only early
Georgia cases and statutes, but also the English common law of
1776, which in 1784 was adopted as the law of Georgia. See
Nestlehutt, 286 Ga. at 733 (“[T]he initial step in our analysis must
necessarily be an examination of the right to jury trial under late
eighteenth century English common law.”); OCGA § 1-1-10 (c) (1)
(adopting in Georgia’s new code the act “adopting the common laws
of England as they existed on May 14, 1776,” which was approved in
Georgia on February 25, 1784). See also Tift, 5 Ga. at 191 (“From
the earliest times, the trial by jury has descended to us, through
usage in England – in our Provincial state, and after the
organization of our State Government, subject to this limitation.”).
We recognize that even to the extent the Georgia constitutional
provision on jury trials “froze” the scope of the inviolate right to a
jury trial as it existed in 1798, it did not freeze the law completely.
“New forums may be erected, and new remedies provided,
accommodated to the ever shifting state of society.” Flint River, 5
Ga. at 208. In other words, the General Assembly is authorized to
32
create new statutory causes of action that did not exist before 1798,
and is likewise authorized to create new or additional remedies for
those causes of action. Those new remedies, however, do not
automatically come with a constitutional right to a trial by jury. The
1966 case of Strange v. Strange, 222 Ga. 44 (148 SE2d 494) (1966),
illustrates this dynamic. There, a divorced mother brought a claim
for child support in 1965 under the Uniform Reciprocal Enforcement
of Support Act and the trial court, acting without a jury, entered a
judgment ordering the father to pay future child support. Strange,
222 Ga. at 44-45. After the father appealed and complained that his
right to a jury had been violated, this Court held that the father did
not have a constitutional right to a jury trial. Id. at 45, 47. We
explained that because the mother, “under the factual situation of
this case, could not bring a common law action against the father of
the minor children” for future child support, the mother’s claim was
“wholly of statutory origin and unknown to the common or statutory
law of England prior to our first Constitution.” Id. at 47. Similarly,
in Williams, we held that “there is no constitutional right to a trial
33
by jury in an equity case” because the use of juries in equity cases
“originated in this State in the Judiciary Act of 1799.” 230 Ga. at
115-116.
Because Georgia’s constitutional jury trial right protects only
those rights to a jury trial that existed in Georgia in 1798, to
determine whether a party has a right to a jury trial for a particular
claim, we must determine whether such a claim existed and was
decided by a jury in Georgia in 1798.
B. Nestlehutt’s Analytical Framework
In Nestlehutt, this Court applied the well-established
analytical framework described above to evaluate a contention that
a statutory cap on non-economic damages in medical malpractice
claims violated Georgia’s constitutional right to trial by jury. See
286 Ga. at 732-738. In that case, we first considered whether in
Georgia in 1798, the underlying claim of medical malpractice existed
and concluded that it did, such that the right to trial by jury applied
to the claim. See id. at 734 (“Given the clear existence of medical
negligence claims as of the adoption of the Georgia Constitution of
34
1798, we have no difficulty concluding that such claims are
encompassed within the right to jury trial[.]”). We then considered
the scope of the jury-trial right that applied to medical-negligence
claims in or before 1798, focusing on the particular aspect of the
historical jury trial that the plaintiff alleged was restricted by the
modern statute in question. See id. at 733-735. There, the key
questions were whether Georgia juries in 1798 determined damages
in tort cases involving medical negligence, and whether those
damages included the non-economic damages that were sought by
the plaintiff (and restricted by a modern statute) in Nestlehutt. See
id. We concluded that the plaintiff made those showings, explaining
that it “ha[d] been the rule from the beginning of trial by jury” that
the “determination of damages rests peculiarly within the province
of the jury,” and that “[n]oneconomic damages have long been
recognized as an element of total damages in tort cases, including
those involving medical negligence.” Id. at 735 (citation and
punctuation omitted). In other words, the claim that was restricted
by the statute—a claim for non-economic damages in a tort case
35
involving medical negligence—was within the scope of the
constitutional right to trial by jury in Georgia. See id. at 735 (“[W]e
conclude that at the time of the adoption of our Constitution of 1798,
there did exist the common law right to a jury trial for claims
involving the negligence of a health care provider, with an attendant
right to the award of the full measure of damages, including
noneconomic damages, as determined by the jury.”).
Then, in examining a statutory cap on damages against the
backdrop of this constitutional right to a jury trial, we held that a
legislatively-imposed limit on the jury’s award violated the
plaintiff’s right to trial by jury because “the right to a jury trial
includes the right to have a jury determine the amount of damages,
if any, awarded to the plaintiff.” Id. at 734 (citation and punctuation
omitted, emphasis in original). We thus concluded that the
statutory limit on non-economic damages “clearly nullifie[d] the
jury’s findings of fact regarding damages and thereby undermine[d]
36
the jury’s basic function.” Id. at 735. 20
Applying that same framework of analysis to the case before us
yields the following: if Taylor can show that at least one of her claims
of liability against Devereux existed in Georgia in 1798 and that the
kind of punitive damages she seeks were within the scope of her
right to a jury trial on that claim, then the legislatively-imposed
damages cap set forth in OCGA § 51-12-5.1 (g) violates her right to
a trial by jury under the Georgia Constitution. If Taylor cannot
make that showing, then she will not carry her burden of showing
that the constitutional right to trial by jury extended to her claim
for punitive damages. As we explain more below, Taylor’s claim fails
because she cannot show that a Georgia jury in 1798 would have
been authorized to award the kind of punitive damages she seeks
20 Although neither party has asked us to reconsider Nestlehutt, amicus
curiae the Attorney General of Georgia—without engaging in a stare decisis
analysis—has asked that we overrule the portion of Nestlehutt holding that a
right to a jury trial has “an attendant right to the award of the full measure of
damages . . . as determined by the jury,” 286 Ga. at 735, arguing that the right
to a jury trial protects only the procedural “right to have a trial by jury,” and
not necessarily the right for the jury to be able to award certain types of
damages or to receive any or all of the damages awarded by the jury. We
decline the invitation.
37
today based on a defendant acting with an “entire want of care.”
C. Limitations of Teasley v. Mathis and State v. Moseley
in Addressing Georgia’s Constitutional Jury-Trial Right
Before we apply the Nestlehutt framework to Taylor’s claims,
we note that Devereux and the special concurrence assert that we
need not engage in this analysis and should instead rely on two of
our prior cases: Teasley v. Mathis, 243 Ga. 561 (255 SE2d 57) (1979),
and State v. Moseley, 263 Ga. 680 (436 SE2d 632) (1993), which held
that certain legislatively-imposed limitations on punitive damages
did not violate Georgia’s constitutional right to a jury trial. See
Teasley, 243 Ga. at 564; Moseley, 263 Ga. at 681. As an initial
matter, Teasley and Moseley addressed challenges to different
statutory provisions than the cap at issue here. Teasley addressed
a jury-trial-right challenge to the complete elimination of punitive
damages in the “no fault statute” for car accident cases where there
was no “serious injury,” 243 Ga. at 561, and Moseley addressed a
jury-trial-right challenge to OCGA § 51-12-5.1 (e) (2)’s
apportionment of 75 percent of a punitive damages award to the
38
State of Georgia in a products liability case, 263 Ga. at 680-681. And
although it may seem like Teasley and Moseley are similar to this
case because those cases, like this case, deal with a plaintiff’s
constitutional challenge to a legislatively-imposed restriction on
punitive damages, the reasoning of those cases is cursory, fatally
incomplete, and does not withstand our later holding in Nestlehutt.
Indeed, in Nestlehutt, we noted that both Teasley and Moseley
“reserv[ed] only cursory analysis to the right to jury trial issue,
which was summarily resolved in reliance on precedent that did not
address the right to jury trial at all.” 286 Ga. at 736. Specifically,
we rejected the plaintiff’s constitutional challenge in Teasley in only
two sentences that provided no express analysis of the right to a jury
trial under the Georgia Constitution:
The legislature, however, may modify or abrogate
common law rights of action (Silver v. Silver, 280 U.S. 117(50 S.Ct. 57, 74 L.Ed. 221) (1929); Arizona Employers’
Liability Cases, 250 U.S. 400 (39 S.Ct. 553, 63 L.Ed. 1058)
(1918); Munn v. Illinois, 94 U.S. 113 (24 L.Ed. 77) (1876)),
as well as statutorily created rights, Kelly v. Hall, [191
Ga. 470 (12 S.E.2d 881) (1941)]. Therefore, eliminating
the right to sue for exemplary damages where there are
no serious injuries is well within the province of the
39
legislature and Teasley’s constitutional challenge on this
ground must also fail.
243 Ga. at 564. Notably, the only citations included in this sparse
analysis were citations to three United States Supreme Court cases
and one case from this Court, none of which addressed the right to
a jury trial under the Georgia Constitution. See Silver 280 U.S. at
122(considering whether a Connecticut law violated the “equal
protection of the laws guaranteed by the Fourteenth Amendment”
to the United States Constitution); Arizona Copper Co., 250 U.S. at
417 (considering whether an Arizona statute violated the
Fourteenth Amendment to the United States Constitution); Munn,
94 U.S. at123 (considering whether an Illinois statute violated
provisions in the United States Constitution regulating commerce
and the Fourteenth Amendment); Kelly, 191 Ga. at 472-473(considering whether taking away the right to punitive damages
violated “Federal and State provisions against the deprivation of
property without due process of law”).
Moseley’s analysis on this issue was similarly brief, rejecting
40
the argument that the legislature could not apportion 75 percent of
the plaintiffs’ punitive damage award to the State by saying:
The Moseleys, in essence, are asking this Court to rule
that Art. 1, Sec. 1, Par. 11 prohibits the General Assembly
from abrogating or circumscribing common law or
statutory rights of action. We have held, however, that
that provision of the Constitution has no such effect,
Teasley v. Mathis, 243 Ga. [at 564]; see also, Georgia
Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60, 61-62 (335
S.E.2d 127) (1985), and we decline to part from that rule
in this case.
263 Ga. at 681. In other words, Moseley relied on Teasley’s
unsupported reasoning and cited yet another case addressing a due
process challenge—not a challenge to the right to trial by jury. See
Georgia Lions Eye Bank, 255 Ga. at 60-61.
The sparse analysis in both cases is fatally incomplete not only
because the opinions do not expressly consider the scope of the
constitutional jury-trial right, but also because they held that the
Georgia General Assembly could modify “common law rights of
action,” without acknowledging the foundational principle that the
legislature cannot abrogate constitutional rights. See Ga. Const. of
1983, Art. III, Sec. VI, Par. I (“The General Assembly shall have the
41
power to make all laws not inconsistent with this Constitution, and
not repugnant to the Constitution of the United States, which it
shall deem necessary and proper for the welfare of the state.”)
(emphasis supplied). See also Nestlehutt, 286 Ga. at 736 (although
“the Legislature has authority to modify or abrogate the common
law,” it may not “abrogate constitutional rights that may inhere in
common law causes of action”) (emphasis in original). 21 For this
reason, the summary conclusions contained in Teasley and Moseley
noted above were necessarily rejected by this Court in Nestlehutt,
insofar as Teasley and Moseley failed to recognize the limit the
Georgia Constitution may put on the legislature’s ability to modify
causes of action. As Nestlehutt held, when Georgia’s constitutional
right to a jury trial applies, the legislature cannot infringe on that
21 Notably, this foundational principle was recognized by a case this
Court cited in Moseley: Georgia Lions Eye Bank, which states that
Rights of property which have been created by the common law
cannot be taken away without due process; but the law itself, as a
rule of conduct, may be changed at the will, or even at the whim,
of the legislature, unless prevented by constitutional limitations.
255 Ga. at 61-62 (emphasis supplied).
42
right. See Nestlehutt, 286 Ga. at 736. We agree with the bedrock
principle, articulated in Nestlehutt, that the legislature may not
“abrogate constitutional rights” that may inhere in common-law
causes of action. Id. (Emphasis in original). 22 To the extent Teasley
and Moseley conflict with that well-established principle, or with
Nestlehutt’s holding on that point, we are bound to follow
Nestlehutt’s holding, and not those earlier decisions. See White v.
State, 305 Ga. 111, 122 n.10 (823 SE2d 794) (2019) (“When a high
court finds discordant opinions among its own horizontal
precedents, the court generally follows its decision in the most
recent case, which must have tacitly overruled any truly
inconsistent holding.”) (citation and punctuation omitted). 23
22 Notably, although the dissenting opinion disagrees with our ultimate
conclusion—based on the application of the Nestlehutt framework—that the
punitive damages Taylor seeks here are not within the scope of the right of
trial by jury guaranteed by the Georgia Constitution, the dissenting opinion
nonetheless agrees that Teasley and Moseley are flawed insofar as they “failed
to recognize the limits the constitutional right to trial by jury puts on the scope
of the General Assembly’s authority.” Dissent Op. at 22 n.16.
23Moreover, contrary to the special concurrence’s assertion, applying
Nestlehutt’s reasoning in this case does not “extend” Nestlehutt, because its
reasoning was not limited to a specific type of damages; it set forth an
43
D. Applying Nestlehutt’s Analytical Framework to
Taylor’s Claims
Turning to the framework laid out in Nestlehutt, we specifically
consider whether any of Taylor’s underlying claims existed in
Georgia in 1798 and whether the scope of a jury trial on that claim
includes damages to punish based on Taylor’s contention that
Devereux acted with an entire want of care. Because we have
identified no pre-1798 Georgia case or statute relevant to the
questions before us—and the parties have offered none—we focus on
the claims and types of damages that were available in England in
and before 1776. See Nestlehutt, 286 Ga. at 733 (“Thus, the initial
step in our analysis must necessarily be an examination of the right
to jury trial under late eighteenth century English common law.”).
analytical framework for interpreting Georgia’s constitutional right to trial by
jury and how that right may limit the power the legislature otherwise holds.
Additionally, the special concurrence asserts that Nestlehutt holds that its
“analytical framework did not apply to statutory limits on punitive damages.”
We do not agree. Nestlehutt factually distinguished Teasley and Moseley on
the ground that they dealt with punitive damages, whereas Nestlehutt
addressed non-economic damages. It did not hold that the analytical
framework to determine if a constitutional jury-trial right attaches did not
apply at all to punitive damages.
44
See also OCGA § 1-1-10 (c) (adopting in Georgia’s new code the act
“adopting the common laws of England as they existed on May 14,
1776”).24
(1) At least one of Taylor’s underlying claims—
premises liability—existed in England in 1776.
We begin, as we did in Nestlehutt, by considering whether the
type of underlying claim of liability (there, medical malpractice) was
available in Georgia in 1798. See 286 Ga. at 733-734. As noted
above, Taylor brought a number of claims of liability against
Devereux, including a premises liability claim under OCGA § 51-3-
1, and Devereux conceded that it “breached the legal duty of
ordinary care owed to Tia McGee for her safety from sexual assault”
and that the breach contributed to McGee’s sexual assault.25
24As we noted in Nestlehutt, “Because there is only a sparse record of
reported Georgia cases prior to the publication of the first volume of the
Georgia Reports in 1846, Georgia precedent is of limited utility in ascertaining
the extent of the jury trial right as of 1798.” 286 Ga. at 733 n.3.
25 Under OCGA § 51-3-1, “[w]here an owner or occupier of land, by
express or implied invitation, induces or leads others to come upon his
premises for any lawful purpose, he is liable in damages to such persons for
injuries caused by his failure to exercise ordinary care in keeping the premises
and approaches safe.” Devereux does not argue that it was not liable for
45
Because the jury rendered a general verdict on compensatory
damages and was not asked to determine which theory of liability
was the basis for its awards, we need only determine at this step if
one of Taylor’s underlying claims was available in Georgia in 1798.
Taylor contends that at common law in England, defendants
could be liable for a failure to keep their premises safe for invitees,
and Devereux does not argue otherwise on appeal. Taylor appears
to be correct. See, e.g., Calye’s Case, 77 Eng. Rep. 520, 522 (1583)
(“[T]he inkeeper is bound in law to keep [his guest’s goods and
chattels] safe without any stealing or purloining[.]”); Gelley v. Clerk,
79 Eng. Rep. 164, 164-165 (1606) (explaining that an innkeeper may
be sued for failing to protect a guest’s horse kept at the inn). See
also Rider v. Smith, 100 Eng. Rep. 848, 848 (1790) (holding that the
plaintiff could bring an action against the defendant for not
repairing a road on the defendant’s ground that the plaintiff was
entitled to use); Payne v. Rogers, 126 Eng. Rep. 590, 590 (1794) (“If
premises liability. Thus, the question of whether Devereux properly could
have been found liable for a violation of OCGA § 51-3-1 is not at issue on
appeal.
46
the owner of the house is bound to repair it, he . . . is liable to an
action on the case for an injury sustained by a stranger from the
want of repair.”); Brock v. Copeland, 170 Eng. Rep. 328, 328-329
(1794) (“[W]here there is either a public way, or the owner of a
mischievous animal suffers a way over his close to be used as a
public one, if he keeps such animal in his close, he shall answer for
any injury any person may sustain from it.”).26
Because Taylor has shown that at least one of the underlying
claims of liability supporting her punitive damages claim was
available in pre-1776 England, we proceed to the next step in
Nestlehutt’s analytical framework: determining whether the scope of
the right to a jury trial on this claim included the punitive damages
Taylor seeks—i.e., damages to punish Devereux for acting with an
“entire want of care.” We address this question by considering each
of the pre-1776 English cases Taylor relies on, particularly focusing
26We acknowledge that these three cases were decided after 1776, but at
a minimum they provide some additional evidence that similar cases could
have been brought in Georgia at the time these cases were decided.
47
on six key English cases.27 We conclude that the cases Taylor cites
show that English juries in 1776 could award damages designed to
punish a defendant, or what we will call “punishment damages,” in
certain circumstances—but that Taylor offers no evidence that
English juries in 1776 or Georgia juries in 1798 could award
punishment damages for a claim that a defendant acted with an
“entire want of care,” and has therefore failed to show that the
punitive damages she seeks are within the scope of Georgia’s
constitutional right to a jury trial.
(2) Taylor cites six cases in which English juries
awarded damages to punish the defendant for claims
of intentional misconduct.
As discussed above, Taylor argued that Devereux acted with
an “entire want of care”; on that basis, she sought—and the jury
awarded—punitive damages under Georgia’s modern punitive
27 These cases are discussed in detail throughout subsection (2) of this
division. We address the other pre-1776 English cases cited by Taylor in
subsection (2) (c) of this division and footnote 40 below.
48
damages statute, OCGA § 51-12-5.1.28 Taylor cites six cases, each
discussed below, that she says are examples of pre-1776 English
juries awarding the kind of punishment damages she sought and
received from the jury. 29 We thus consider whether these cases show
that juries awarded damages to punish, penalize, or deter a
defendant based on a defendant acting with an “entire want of care.”
In discussing these cases, we bear in mind that, as noted above,
the term “punitive damages” as used today in OCGA § 51-12-5.1 “is
synonymous with the terms ‘vindictive damages,’ ‘exemplary
damages,’ and other descriptions of additional damages awarded
because of aggravating circumstances in order to penalize, punish,
or deter a defendant.” Id. (a). Thus, when considering whether a
28 As previously noted, punitive damages under OCGA § 51-12-5.1 are
awarded “to punish, penalize, or deter a defendant,” and they are awarded only
for claims that the defendant acted with “willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b),
(c).
29 We acknowledge that in England around the time these six cases were
decided, “only a small proportion of decided cases was reported.” Honda Motor
Co., Ltd. v. Oberg, 512 U.S. 415, 423 (114 SCt 2331, 129 LE2d 336) (1994)
(noting that in “the year Beardmore was decided, only 16 Common Pleas cases
are recorded in the standard reporter”).
49
1776 English jury could award damages like the kind Taylor sought
with her claim for “punitive damages” under OCGA § 51-12-5.1, the
key question is not the exact nomenclature of the damages available
at English common law, but rather the substantive purpose of the
damages—whether they were awarded “because of aggravating
circumstances in order to penalize, punish, or deter a defendant.”
OCGA § 51-12-5.1 (a). Notably, the term “exemplary damages,” a
term listed in OCGA § 51-12-5.1 (a) as “synonymous” with “punitive
damages,” is used in some of the early English cases discussed
below. Id. While the term “exemplary damages” alone is not
dispositive of whether these damages were damages awarded “to
penalize, punish, or deter a defendant” like damages under OCGA §
51-12-5.1 (a) are, we consider the use of the term as part of the
description of the damages in determining their purpose.
We turn now to the cases.30 In Huckle v. Money, 95 Eng. Rep.
30 We note that Taylor has not cited any pre-1776 English or pre-1798
Georgia cases addressing claims of premises liability, or any of the other claims
she raises, where punishment damages were awarded. However, the following
cases are instructive on whether juries could award damages to punish
defendants and the types of claims that would support such damages in 1798.
50
768 (1763), a claim for “[t]respass, assault, and imprisonment,” the
jury awarded “exemplary damages” of £300. Id. at 768. There, the
plaintiff, a “journey-man printer,” “was taken into custody by the
defendant (a King’s messenger) upon suspicion of having printed the
North Briton, Number 45,” and kept in custody “about six hours,”
but the defendant “used him very civilly by treating him with beef-
steaks and beer, so that he suffered very little or no damages.” Id.
at 768. The warrant used to justify the plaintiff’s seizure was
granted by the Secretary of State “without any information or
charge laid before the Secretary of State, . . . and without naming
any person whatsoever in the warrant.” Id. After the defendant
argued that the jury had given excessive damages, Chief Justice
Pratt explained that “the personal injury done to [the plaintiff] was
very small, so that if the jury had been confined by their oath to
consider the mere personal injury only,” the jury’s award would have
been too high. Id. However, the Chief Justice held that because of
the magistrate’s “exercising arbitrary power, violating Magna
Charta, and attempting to destroy the liberty of the kingdom,” he
51
thought the jury had “done right in giving exemplary damages.” Id.
at 769.
In Wilkes v. Wood, 98 Eng. Rep. 489 (1763), a claim of “trespass,
for entering the plaintiff’s house, breaking his locks, and seizing his
papers” (again related to the North Briton), the jury was told it could
award “damages for more than the injury received” and awarded
£1,000. See id. at 489-499. There, Wood and “several of the King’s
messengers, and a constable,” entered Wilkes’s house, broke his
locks, and seized his papers based “upon a bare suspicion of a libel
by a general warrant, without name of the person charged.” Id. at
490. Chief Justice Pratt instructed the jury:
I have formerly delivered it as my opinion on another
occasion, and I still continue of the same mind, that a jury
have it in their power to give damages for more than the
injury received. Damages are designed not only as a
satisfaction to the injured person, but likewise as a
punishment to the guilty, to deter from any such
proceeding for the future, and as a proof of the detestation
of the jury to the action itself.
Id. at 498.
Damages of £1,000 were also awarded and upheld in a similar
52
case for a claim of “trespass and false imprisonment” after the
defendants entered the plaintiff’s house, searched his private
papers, and confined him for six and a half days based on an illegal
warrant. See Beardmore v. Carrington et al., 95 Eng. Rep. 790, 790-
791, 793 (1764). The judge who presided over the case thought the
argument that “the jury were to measure the damages by what the
defendant had suffered by this trespass and six days and an half
imprisonment” to be a “gross absurdity,” and on appellate review,
the court concluded that the jury’s high damages were not excessive,
describing the defendant’s actions as “an unlawful power assumed
by a great minister of State” and “concern[ing] the liberty of every
one of the King’s subjects.” Id. at 793-794.
Similarly, in Grey v. Grant, 95 Eng. Rep. 794 (1764), a claim
for “assault and battery,” the jury awarded the plaintiff “exemplary
damages” of £200 after the defendant stole the turtle the plaintiff
shipped in from the West Indies, refused to return or pay for it
because “he had invited some friends to dine with him upon it,”
“shoved the plaintiff out of his house with his elbow,” and gave the
53
plaintiff “a blow upon the face, which caused a black eye.” Id. at 794-
795. The defendant argued that the amount of damages awarded by
the jury was too high, but the court held that “when a blow is given
by one gentleman to another, a challenge and death may ensue, and
therefore the jury have done right in giving exemplary damages.”
Id. at 795.
And in Benson v. Frederick, 97 Eng. Rep. 1130 (1766), a claim
based on the defendant “order[ing] [an] innocent man to be flogged,”
the jury awarded £150 after the defendant ordered that the plaintiff
be whipped because he was angry at the military official who had
granted the plaintiff furlough. Id. at 1130. The defendant argued
that the jury’s damages were too high, but the court held that it “was
not dissatisfied with the verdict,” explaining that the plaintiff,
“though not much hurt indeed, was scandalized and disgraced” and
“the defendant had acted very arbitrarily, and was well able to pay
for it.” Id.
Finally, in Tullidge v. Wade, 95 Eng. Rep. 909 (1769), a claim
of “trespass” and “assault,” the court held that the £50 the jury
54
awarded were not excessive in a case where the defendant “with
force and arms made an assault upon A.B. daughter and servant of
the plaintiff, and got her with child.” Id. at 909. The Chief Justice
explained: “Actions of this sort are brought for example’s sake; and
although the plaintiff’s loss in this case may not really amount to
the value of twenty shillings, yet the jury have done right in giving
liberal damages.” Id. He also noted that if A.B. brought another
action against the defendant “for the breach of promise of marriage,
so much the better; he ought to be punished twice.” Id. 31
31 In addition to these cases, Taylor points out that there are references
to “exemplary” damages in William Blackstone’s Commentaries on the Laws of
England. See, e.g., Rouse v. State, 4 Ga. 136, 145 (1848) (looking to
Blackstone’s Commentaries to determine “[w]hat was the trial by jury, as used
in this State in 1798, the time when the Constitution was adopted”).
Blackstone explained that when “Adultery, or criminal conversation with a
man’s wife” is “considered as a civil injury, (and surely there can be no greater)
the law gives satisfaction to the husband for it by an action of trespass vi et
armis against the adulterer, wherein the damages recovered are usually very
large and exemplary.” 3 William Blackstone, Commentaries on the Laws of
England 139 (1772). See also Black’s Law Dictionary (11th ed. 2019) (defining
“vi et armis” as “[b]y or with force and arms”). Likewise, Blackstone noted with
respect to nuisance claims brought in the form of action called an “action on
the case”: “[E]very continuance of a nu[i]sance is held to be a fresh one; and
therefore a fresh action will lie, and very exemplary damages will probably be
given, if, after one verdict against him, the defendant has the hardiness to
continue it.” Blackstone at 220 (emphasis in original). Although these are only
brief references, they support the idea that punishment damages existed in
55
(a) Taylor offers evidence that juries were the
arbiters of the large damages awarded in pre-
1776 English cases.
In all six of the pre-1776 English cases Taylor relies on, the
jury decided the damages award—which suggests that the question
of damages was a jury question, and one in which English courts
were hesitant to meddle. See Beardmore, 95 Eng. Rep. at 793 (“We
desire to be understood that this Court does not say, or lay down any
rule that there never can happen a case of such excessive damages
in tort where the Court may not grant a new trial; but in that case
the damages must be monstrous and enormous indeed, and such as
all mankind must be ready to exclaim against, at first blush.”);
Wilkes, 98 Eng. Rep. at 498 (instructing the jury that it “ha[d] it in
their power to give damages for more than the injury received”). See
also 3 William Blackstone, Commentaries on the Laws of England
397 (1772) (“[W]here damages are to be recovered, a jury must be
called in to assess them; unless the defendant, to save charges, will
England before 1776 and that juries were authorized to award them in at least
some cases. See footnote 35 for a discussion about “trespass vi et armis” and
“action on the case.”
56
confess the whole damages laid in the declaration[.]”); Nestlehutt,
286 Ga. at 734 (citing Blackstone, among other sources, to show that
the jury determined damages). Thus, consistent with Nestlehutt,
Taylor has shown that in pre-1776 England, juries generally
determined the amount of damages and were empowered to award
large amounts of damages in certain circumstances. The next
question we consider is whether those large damages were, like
modern punitive damages, damages designed to punish the
defendant.32
(b) Taylor has shown that in pre-1776 English
cases, at least some damages were awarded to
punish.
We now evaluate whether the six English cases Taylor cites
involved juries awarding the kind of damages Taylor seeks in her
suit, i.e., damages to punish. Devereux acknowledges that the six
32 Devereux argues that whether to award punitive damages at common
law was not a jury question because Nestlehutt described punitive damages as
“not really a ‘fact’ ‘tried’ by the jury.” 286 Ga. at 736 (citation and punctuation
omitted). However, this statement in Nestlehutt was dicta, and to the extent
it can be read as indicating that punishment damages were not a component
of the damages decided by a jury in pre-1776 England or pre-1798 Georgia, we
disapprove it.
57
cases cited by Taylor show examples of juries giving large damages
awards, but Devereux argues that the damages the English juries
in those cases awarded are not equivalent to the punitive damages
Taylor seeks in this case because the former were not damages
designed to punish a defendant. See OCGA § 51-12-5.1 (c) (“Punitive
damages shall be awarded not as compensation to a plaintiff but
solely to punish, penalize, or deter a defendant.”). Instead,
Devereux argues that no punishment damages existed in pre-1776
England, and that the damages that seemed disproportionately high
compared to the injury awarded in the cases discussed above were
really only compensation for non-economic damages. See Simon
Greenleaf, 2 Treatise on the Law of Evidence 243 (16th ed. 1899)
(asserting that “the terms ‘exemplary damages,’ ‘vindictive
damages,’ ‘smart-money,’ and the like” “seem to be intended to
designate in general those damages only which are incapable of any
fixed rule, and lie in the discretion of the jury; such as damages for
mental anguish, or personal indignity and disgrace, etc., and these,
so far only as the sufferer is himself affected”). See also Smith v.
58
Overby, 30 Ga. 241, 248 (1860) (explaining that in cases such as an
assault and battery, “the injury is to [the plaintiff’s] feelings – his
honor – his pride – his social position,” and explaining that in such
cases, the jury “should render large damages, not as punishment,
but to compensate the actual injury”) (emphasis supplied).
It is true that the structure of the damages awards in pre-1776
English cases appears to be somewhat different than it is today. The
damages verdicts discussed in those cases were comprised of one
large sum, meaning that any punishment damages that were
awarded were not clearly separated out from compensatory damages
that were also awarded, as they would be today. See, e.g., Wilkes,
98 Eng. Rep. at 499 (noting that the jury awarded the plaintiff
£1,000); Grey, 95 Eng. Rep. at 794 (noting that the jury awarded the
plaintiff £200). This makes it difficult, in retrospect, to identify
which portions of those verdicts, if any, were serving a purpose of
punishment. And it does appear that there may have been some
elements of non-economic compensatory damages included in the
high awards some English juries gave: for example, the court in
59
Benson noted the “scandal[] and disgrace[]” experienced by the
plaintiff when considering whether the jury’s verdict was excessive.
97 Eng. Rep. at 1130.
However, we reject Devereux’s argument that punishment
damages did not exist at all in pre-1776 England, and that the high
damages English juries awarded were exclusively compensatory in
nature. To the contrary, the six English cases discussed above show
that some of the damages English juries awarded served “as a
punishment to the guilty, to deter from any such proceeding for the
future.” Wilkes, 98 Eng. Rep. at 498. See also Tullidge, 95 Eng. Rep.
at 909 (noting that high damages and possibly another lawsuit were
appropriate because the defendant “ought to be punished twice”).
Moreover, other cases reference “exemplary damages” and damages
“for example’s sake,” indicating that the damages the juries awarded
did not serve a compensatory purpose; they were awarded to make
an example out of the bad actor, expressing society’s outrage against
this action and deterring future abuses. See, e.g., Huckle, 95 Eng.
Rep. at 769 (holding that the jury had “done right in giving
60
exemplary damages”); Tullidge, 95 Eng. rep. at 909 (noting that
“[a]ctions of this sort are brought for example’s sake”); Grey, 95 Eng.
Rep. at 795 (“[T]he jury have done right in giving exemplary
damages[.]”). Thus, we conclude that punishment damages of some
kind existed in England in 1776, and the mere fact that jury awards
may have been partially compensatory—for economic and non-
economic damages—does not erase the fact that the juries were
authorized to award some damages designed to punish the
defendant. Taylor has therefore shown that punishment damages
existed in England in 1776.
(c) In 1776 England, damages were not
awarded to punish defendants who acted only
with an “entire want of care.”
Continuing our analysis of whether the punitive damages
Taylor seeks were included within the scope of the jury trial right in
1798 Georgia, we consider whether the cases Taylor cites show that
her claim that Devereux acted with an “entire want of care” was the
kind of claim that could have supported punishment damages in
1776 England. Devereux contends that even if damages were
61
awarded to punish defendants, they were awarded only in cases
where the defendant engaged in “intentionally abusive conduct” or
had a “specific intent to inflict harm.” Here, by contrast, Taylor’s
claim for punitive damages stemmed from an allegation that
Devereux acted with an “entire want of care.” See OCGA § 51-12-
5.1 (b) (providing for punitive damages when a defendant’s actions
show “that entire want of care which would raise the presumption
of conscious indifference to consequences”).33 And because Taylor’s
claim of premises liability required only that she prove that
Devereux “fail[ed] to exercise ordinary care in keeping the premises
and approaches safe,” OCGA § 51-3-1, she did not need to prove any
intentional misconduct to prevail on her underlying claim of
premises liability under OCGA § 51-3-1 or as part of her claim for
punitive damages under OCGA § 51-12-5.1 (b). 34
As noted above, Taylor did not contend that her claim for punitive
33
damages was based on Devereux acting with “the specific intent to cause harm”
under OCGA § 51-12-5.1 (f).
34Likewise, Taylor was not required to show that Devereux engaged in
intentional misconduct with respect to the other claims she alleged (which are
recounted above in Division I).
62
We acknowledge that nothing contained in the English cases
discussed above expressly limited punishment damages to claims of
intentional misconduct. However, Taylor has the burden of showing
a “clear and palpable” conflict between OCGA § 51-12-5.1 (g) and
Georgia’s constitutional right to trial by jury. Barnhill, 315 Ga. at
311. And unlike the claim at issue in this case, each of the cases
Taylor has cited to show the use of punishment damages before 1798
involved a claim of intentional misconduct. Indeed, the claims in
those cases were for “[t]respass, assault, and imprisonment,”
Huckle, 95 Eng. Rep. at 768; “trespass, for entering the plaintiff’s
house, breaking his locks, and seizing his papers,” Wilkes, 98 Eng.
Rep. at 489; “trespass and false imprisonment,” Beardmore, 95 Eng.
Rep. at 790; “assault and battery,” Grey, 95 Eng. Rep. at 794;
“order[ing] [an] innocent man to be flogged,” Benson, 97 Eng. Rep.
at 1130; and “[t]respass” and “assault,” Tullidge, 95 Eng. Rep. at
909. See also Blackstone at 208 (explaining that an action for
trespass generally includes “any misfeasance, or act of one man
whereby another is injuriously treated or damnified”); id. at 209
63
(explaining that trespass in the more “limited” sense means “an
entry on another man’s ground without a lawful authority, and
doing some damages, however inconsiderable, to his real property”);
id. at 120 (explaining that assault “is an attempt or offer to beat
another,” such as if “one lifts up his cane, or his fist, in a
threat[e]ning manner at another; or strikes at him, but misses
him”); id. at 127 (explaining that false imprisonment requires “1.
The detention of the person; and, 2. The unlawfulness of such
detention,” including “confinement or detention without sufficient
authority”); id. at 120 (explaining that battery “is the unlawful
beating of another,” including “[t]he least touching of another’s
person wilfully, or in anger”).35 Additionally, an examination of
35At this time (before and during 1776), claims for injuries were divided
into actions of “trespass vi et armis” (or simply “trespass”) and actions for
“trespass on the case” (also known as “actions on the case”). Blackstone at 209.
“[W]henever the act itself is directly and immediately injurious to the person
or property of another, and therefore necessarily accompanied with some force,
and action of trespass vi et armis will lie; but, if the injury is only
consequential, a special action of trespass on the case may be brought.” Id. See
also Blackstone at 122 (explaining that the “action, of trespass, or
transgression, on the case, is an [sic] universal remedy, given for all personal
wrongs and injuries without force . . . . And it is a settled distinction, that
where an act is done which is in itself an immediate injury to another’s person
64
some of the language used to describe the wrongs for which
punishment damages were awarded in those cases shows that the
defendants’ intentional misconduct was in fact a key aspect of the
claims for which punishment damages were awarded.
For example, in Huckle, the Chief Justice of the King’s Bench
described the defendant’s actions of executing an illegal warrant as
or property, there the remedy is usually by an action of trespass vi et armis;
but where there is no act done, but only a culpable omission; or where the act
is not immediately injuries, but only by consequence and collaterally; there no
action of trespass vi et armis will lie, but an action on the special case, for the
damages consequent on such omission or act”). The claims in the six cases
described above—such as for assault, battery, and false imprisonment—were
brought as actions for trespass vi et armis. See Blackstone at 120-121 (assault
and battery), 138 (false imprisonment).
Actions on the case, on the other hand, “may be regarded as the ancestor
of the modern tort action based on negligence.” Sonja Larsen, 1 Am. Jur. 2d
Actions, § 18 Trespass on the case; as distinguished from trespass (Feb. 2023
update). “Some authority makes the distinction” between trepass vi et armis
and trespass on the case “on the basis of the defendant’s intent, stating that
trespass involves a willful and deliberate act while trespass on the case
contemplates an act or omission resulting from negligence.” Id. However,
some actions on the case could still involve claims of defendants engaging in
intentional misconduct. Notably, actions for nuisance, discussed above in
footnote 31 and again in footnote 37 below, were generally brought as actions
on the case at English common law. See Blackstone at 220. However, as
explained in footnote 37, the nature of the acts alleged to support a repeated
nuisance claim—which includes continuing the actions that create a nuisance
after notice of the initial claim—could support an award of “exemplary
damages” because the defendant in such a case would have engaged in
intentional misconduct.
65
“exercising arbitrary power, violating Magna Charta, and
attempting to destroy the liberty of the kingdom.” 95 Eng. Rep. at
769. In Wilkes, the Chief Justice discussed the Secretary of State’s
“claim[ing] a right . . . to force persons houses, break open escrutores,
seize their paper, [etc.],” 98 Eng. Rep. at 498. Similarly in
Beardmore, the court described the defendant’s actions as “an
unlawful power assumed by a great minister of State.” 95 Eng. Rep.
at 794. In this way, it is clear that the claims in these cases—which
the court agreed with—were not that the defendants negligently or
carelessly searched the plaintiff’s houses but rather that these
defendants knowingly “exercis[ed] arbitrary power,” “claimed a
right,” or “assumed” “an unlawful power,” Huckle, 95 Eng. Rep. at
769; Wilkes, 98 Eng. Rep. at 498; Beardmore, 95 Eng. Rep. at 794—
not that the defendants acted merely with an “entire want of care.”36
36As the dissenting opinion points out, the defendants in Huckle, Wilkes,
and Beardmore were the people who executed the illegal warrants, rather than
the government official who issued them. But we do not see how this fact
affects the conclusion that those cases involved claims of intentional
misconduct. The dissenting opinion asserts that the defendants in these cases
“understood” the warrants “to be legally sanctioned” and that “[f]rom the
66
defendants’ points of view . . . they had legal authority and justification to enter
the plaintiffs’ homes” and engage in the associated conduct, Dissent Op. 13, 15-
16. As an initial matter, none of the cases actually say or even indicate that
was so. But in any event, the juries in those cases found the defendants liable
for claims of intentional misconduct—trespass (in all three cases) and assault
and false imprisonment (in some of the cases)—and the courts in fact
attributed intentional misconduct to the defendants.
The court in Huckle, for example, described “enter[ing] a man’s house by
virtue of a nameless warrant” as “worse than the Spanish Inquisition,” 95 Eng.
Rep. at 769, and indicated that the warrant, which plainly did not name any
specific person, was directed to the messengers:
[A] warrant was granted by Lord Halifax, Secretary of State,
directed to four messengers, to apprehend and seize the printers
and publishers of a paper called the North Briton, Number 45,
without any information or charge laid before the Secretary of
State, previous to the granting thereof, and without naming any
person whatsoever in the warrant; Carrington, the first of the
messengers to whom the warrant was directed, from some private
intelligence he had got that Leech was the printer of the North
Briton, Number 45, directed the defendant to execute the warrant
upon the plaintiff, (one of Leech’s journeymen,) and took him into
custody for about six hours.
95 Eng. Rep. at 768 (emphasis supplied).
Similarly, in Wilkes, the judge noted that evidence was presented from
which the jury could infer that the defendant Wood was “very active in the
affair” and explained to the jury that if it found that Wood was an “[a]ider[]
and abetter[],” rather than “a person present remains only a spectator,” it
“must find a verdict for the plaintiff with damages”—which it did. Wilkes, 98
Eng. Rep. at 498. And in his explanation of the punishable conduct, the judge
discussed both “the defendants” and Lord Halifax:
The defendants claimed a right, under precedents, to force persons
houses, break open escrutores, seize their papers, [etc.] upon a
general warrant, where no inventory is made of the things thus
taken away, and where no offenders names are specified in the
warrant, and therefore a discretionary power given to messengers
to search wherever their suspicions may chance to fall. If such a
power is truly invested in a Secretary of State, and he can delegate
this power, it certainly may affect the person and property of every
man in this kingdom, and is totally subversive of the liberty of the
67
Similarly, in Grey, the court noted that the defendant’s acts
were all acts of intentional misconduct: “the plaintiff has been used
unlike a gentleman by the defendant in striking him, withholding
his property, and insisting upon his privilege,” 95 Eng. Rep. at 795.
And in explaining why the damages were not excessive in Benson,
the court noted that the defendant “had manifestly acted arbitrarily,
unjustifiably, and unreasonably” in ordering an “innocent man to be
flogged (though unjustly and improperly,) merely out of spite to his
subject.
Id. (emphasis supplied).
Finally, although the dissenting opinion asserts that the court in
Beardmore “acknowledged the argument that Lord Halifax was ‘more
culpable’” than the defendants, Dissent Op. 14-15, the full context of that quote
shows that the court was not persuaded by that argument:
[T]he plaintiff has still another action against Lord Halifax, who,
it is said, is more culpable than the defendants, who are only
servants, and have done what he commanded them to do, and
therefore the damages are excessive as to them: but we think this
is no topic of mitigation, and for any thing we know the jury might
say, “We will make no difference between the minister who
executed, and the magistrate who granted this illegal warrant;” so
the Court must consider these damages as given against Lord
Halifax.
Beardmore, 95 Eng. Rep. at 793 (emphasis supplied). Contra Dissent Op. 15
n.11. In sum, in all three of these illegal warrant cases, punishment damages
were given for claims of intentional misconduct that was attributed not only to
the person who ordered the intentional misconduct, but also to the defendants
who carried it out.
68
major” and the defendant “acted malo animo, and out of mere spite
and revenge.” 97 Eng. Rep. at 1130. And in Tullidge, the evidence
showed that the defendant “made his addresses to [the plaintiff’s
daughter] as a lover, with an intention (as she then thought) to
marry her,” and that the defendant “promised her marriage, and got
her with child.” 95 Eng. Rep. at 909. In other words, the defendant
engaged in intentional misconduct, lying to the plaintiff and his
daughter about his intentions and taking advantage of them.37 The
defendant’s intentional misconduct in these cases was, in this way,
a crucial part of the plaintiff’s overall claim for damages, including
for punishment damages. 38
37 The descriptions of exemplary damages in Blackstone supports that
such damages were given only in cases of intentional misconduct, including for
“adultery” and repeated nuisance. Although an initial nuisance arguably could
be caused by mere negligence and a nuisance claim was considered to be an
“action on the case,” “exemplary” damages were available for a nuisance claim
only when the nuisance was repeated, meaning “the defendant has the
hardiness to continue,” Blackstone at 220, thus demonstrating intentionality
insofar as the defendant continued the nuisance, even after being notified (by
a first lawsuit) that the act was harming the plaintiff.
38 In addition to intentional misconduct, other aggravating
circumstances were often listed by the courts in explaining why juries were
authorized to award punishment damages. For example, in cases of trespass
69
Taylor, however, contends that another case from pre-1776
England shows that punishment damages were awarded in cases
where intentional misconduct was not a required element: Farmer
v. Darling, 98 Eng. Rep. 27 (1766). Extrapolating from this case,
Taylor argues that in 1798 Georgia, intentional misconduct was not
required to authorize punishment damages. We disagree.39
based on an illegal warrant, the court emphasized the outrage to conceptions
of liberty. See, e.g., Huckle, 95 Eng. Rep. at 769 (describing the defendant’s act
of “enter[ing] a man’s house by virtue of a nameless warrant” as “worse than
the Spanish Inquisition”); Wilkes, 98 Eng. Rep. at 498 (telling the jury that the
Secretary of State’s actions “certainly may affect the person and property of
every man in this kingdom, and is totally subversive of the liberty of the
subject”). And in Tullidge, the court noted that the defendant’s insult to the
plaintiff was particularly galling where “the plaintiff ha[d] received this insult
in his own house; where he had civilly received the defendant, and permitted
him to make his address to his daughter.” 95 Eng. Rep. at 909.
39 Citing Day v. Woodworth, 54 U.S. 363 (14 LE 181) (1851), Taylor also
argues that punishment damages could be awarded in all torts: “It is a well-
established principle of the common law, that in actions of trespass and all
actions on the case for torts, a jury may inflict what are called exemplary,
punitive, or vindictive damages upon a defendant, having in view the enormity
of his offence rather than the measure of compensation to the plaintiff.” Id. at
371. Day, however, addressed a lawsuit between “a citizen of New York” and
“citizens of Massachusetts” for an alleged trespass in Massachusetts, and was
decided in 1851. Id. at 363. And although Day broadly referred to the “common
law,” it did not cite any cases in support of this statement or even clarify to
which sources it was looking to determine the scope of “common law.” Thus,
we do not view this broad statement in Day in 1851 to be compelling evidence
of the kinds of claims in which punishment damages could be awarded in
England in 1776 or in Georgia in 1798.
70
In Farmer, the plaintiff had spent £140 defending himself
against two claims brought by the defendant, which the plaintiff
alleged were malicious prosecutions. See 98 Eng. Rep. at 28-29. The
jury awarded the plaintiff £250 in damages, and on review, the court
concluded that the damages were not excessive. See id. at 27-29.
Under applicable precedent, malicious prosecution could be proven
by “express or implied” malice, and the judge reported that “[i]t
appeared upon the report ‘that there was malice implied.’” 98 Eng.
Rep at 27. Taylor argues that the high damages in that case were
awarded to punish the defendant based only on implied malice and,
citing a case from this Court that was decided more than 200 years
after Farmer—Parker v. State, 270 Ga. 256 (507 SE2d 744) (1998),
overruled in part on other grounds by Linson v. State, 287 Ga. 881,
886 (700 SE2d 394) (2010)—contends that implied malice is
equivalent to “reckless disregard,” and that intentional misconduct
was not required to authorize punishment damages as a result. See
Parker, 270 Ga. at 260 (“[R]eckless disregard for human life may be
the equivalent of a specific intent to kill.”).
71
We disagree with Taylor’s characterization of Farmer and with
her assessment of its significance. First, it is not clear that the high
damages awarded in Farmer actually were punishment damages.
There was no discussion in the opinion of punishment or making an
example of the defendant; the judge told the jury that it could award
the expenses paid by the plaintiff, or less, or “more, if they should
see it proper to do so,” and the plaintiff argued that the jury should
consider “[t]he distress and vexation, and all the inconvenience the
plaintiff was put to . . . as well as the pecuniary expense”—that is,
ordinary economic and non-economic damages. 98 Eng. Rep. at 27-
28. Second, Parker was a criminal case addressing the statutory
elements of malice murder and whether a “reckless disregard for
human life” could meet those requirements. See 270 Ga. at 259-260.
Parker’s holding, even assuming it is correct, cannot be mapped onto
the civil issue in Farmer 200 years in the past to require the
conclusion that a defendant can be found guilty of malicious
prosecution based on a jury finding that the defendant maliciously
prosecuted the plaintiff but did not engage in intentional
72
misconduct.
Finally, although claims of malicious prosecution were
generally brought as actions on the case (see footnote 35 for more
discussion of “actions on the case”), they involved a claim that the
defendant engaged in intentional misconduct. See Blackstone at
126 (explaining that a “way of destroying or injuring a man’s
reputation is, by preferring malicious indictments against him;
which, under the mask of justice and public spirit, are sometimes
made the engines of private spite and enmity,” and the “usual way”
for bringing a claim for this injury is “by a special action on the
case”). For these reasons, Farmer does not show punishment
damages being given against a defendant based on something other
than intentional misconduct. 40
40 Taylor also cites Bruce v. Rawlins, 95 Eng. Rep. 934 (1770), and three
cases dealing with claims of slander—Townsend v. Hughes, 86 Eng. Rep. 850
(1676), Duke of York v. Pilkington, 89 Eng. Rep. 918 (1682), and Roe v. Hawkes,
83 Eng. Rep. 316 (1663)—to show that English juries in 1776 could award
punishment damages for claims like the one Taylor raises. In Bruce, the jury
awarded £100 after the defendants trespassed in the plaintiff’s house to search
for “uncustomed goods.” 95 Eng. Rep. at 934. Although the defendants “did
very little or no damages,” the “plaintiff’s wife and daughter being only at
home, were frightened and much surprised.” Id. The court held that £100 was
73
By pointing only to pre-1776 English cases in which
not excessive. Id. at 934-935. The Chief Justice explained that “[t]he suspicion
of having run-goods in his house is a very injurious imputation upon him; and
though he is but a butcher, it is the same damage to him as if he was the
greatest merchant in London,” and further opined that the defendants
“invaded the plaintiff’s house and property, and disturbed his family.” Id. Like
in Farmer, it is not clear that any of the £100 of damages were awarded to
punish the defendant, rather than to compensate him for intangible harms.
However, even assuming these damages are indeed punishment damages, the
plaintiff in this case was required to prove that the defendant engaged in
intentional misconduct.
In Townsend, Pilkington, and Roe, juries awarded large damages for
claims of slander. See Townsend, 86 Eng. Rep. at 850 (jury awarded £4,000);
Pilkington, 89 Eng. Rep. at 918 (jury awarded £100,000); Roe, 83 Eng. Rep. at
316 (jury awarded £700). And in Townsend and Roe, the defendants requested
new trials based on excessive damages, which the court denied. See 86 Eng.
Rep. at 850; 83 Eng. Rep. at 316. However, Taylor points to nothing aside from
the large damages award to support her argument that the damages in these
cases were punishment damages, rather than, for example, damages for
reputational harms. And even assuming the damages were punishment
damages, these cases do not show that punishment damages could be awarded
for claims that the defendant did not act with intentional misconduct. Even
though slander claims were generally brought as actions on the case, see
Blackstone at 123-124, such claims required showing that the defendant
engaged in intentional misconduct, and in each of the three cases noted above,
the defendants were alleged to have intentionally said unflattering things
about the plaintiffs. See Blackstone at 125 (explaining that “[w]ords of heat
and passion, . . . if productive and of no ill consequence” and “words spoken in
a friendly manner, as by way of advice, admonition, or concern, without any
tincture or circumstance of ill will” are “not actionable” because “they are not
maliciously spoken, which is part of the definition of slander”) (emphasis in
original). See also id. at 123 (explaining that a claim for “Scandalis
Magnatum”—the claim brought in Townsend and Pilkington—required
showing that the defendant spoke words “in derogation of a peer, a judge, or
other great officer of the realm” and that the claim for injuring a man’s
reputation involves “a man, maliciously and falsely, utter[ing] any slander or
false tale of another”).
74
punishment damages were awarded for claims that a defendant
engaged in intentional misconduct, Taylor has failed to show that
punishment damages could be awarded for her claim that Devereux
acted with an “entire want of care.” She has therefore failed to show
that the kind of punitive damages she seeks were within the scope
of the jury-trial right in Georgia in 1798.
(d) Early cases from other states do not show
that punishment damages could be awarded for
claims that did not involve the defendant’s
intentional misconduct.
In addition to English cases, Taylor cites cases from other
states to argue that punitive damages were not limited to claims of
intentional misconduct. We first note that although all of these
cases were decided before 1798, we do not afford them significant
persuasive value as evidence of the law in Georgia in 1798 because
they are not Georgia cases.41 And even assuming for the sake of
41Notably, these non-Georgia cases do not rely on any pre-1776 English
cases. And although it is possible that they are interpreting the same English
common law in effect in Georgia at that time, the non-Georgia cases do not
expressly indicate that is so, and in any event, Georgia’s interpretation of the
English common law controls. See Slaton v. Hall, 168 Ga. 710, 716-717 (148
75
argument that these cases shed some light on Georgia’s law in 1798,
it is important to recognize that each of these cases involve a
defendant who was punished (through high punishment damages)
for intentional misconduct.
Taylor first argues that Genay v. Norris, a 1784 case from
South Carolina, shows that juries could award punishment damages
in cases where there was no claim that the defendant engaged in
intentional misconduct. See 1 Bay 6, 6 (SC 1784). In Genay, the
defendant, a physician, put “a large portion of cantharides” in the
plaintiff’s drink and caused him “extreme and excruciating pain.”
Id. The defendant argued that “the whole transaction was nothing
more than what is usually termed a drunken frolic, and no injury
was seriously intended” and that he “mistook the quantity poured
into the glass; that he did not put so much as he thought, would by
SE 741) (1929) (explaining that “[t]he common law is presumed to be the same
in all the American States where it prevails. Though courts in the different
States may place a different construction upon a principle of common law, that
does not change the law”); Krogg v. Atlanta & W. P. R.R., 77 Ga. 202, 214 (1886)
(“[W]e are not bound by the interpretation of the common law, as made by the
courts of Alabama.”).
76
any means, injure [the plaintiff].” Id. at 6-7. But the trial court
appears to have rejected that argument, which is evident from its
charge to the jury that “this was a very wanton outrage upon a
stranger in the country” and that “notwithstanding it was called a
frolic, yet the proceedings appeared to be the result of a combination,
which wrought a very serious injury to the plaintiff, and such a one
as entitled him to very exemplary damages, especially from a
professional character, who could not plead ignorance of the
operation, and powerful effects of this medicine.” Id. at 7 (emphasis
supplied). In this way, the jury was told that the defendant knew
what he was doing when he caused the injury: he engaged in
intentional misconduct. 42
The other pre-1798 non-Georgia cases Taylor cites fare no
better. Although they indicate that juries in these states could
42This case was brought as an “action on the case.” However, we note
once again that the designation of this form of action does not itself control our
analysis, and the instructions to the jury in this case show that the plaintiff
acted with more than mere negligence or even recklessness—he instead
engaged in intentional misconduct.
77
award punishment damages, they do not show that such damages
could be awarded absent a claim grounded in intentional
misconduct. See Coryell v. Colbaugh, 1 N.J.L. 77, 77 (1791) (in an
“action of breach of promise of marriage,” charging the jury “not to
estimate the damages by any particular proof of suffering or actual
loss; but to give damages for example’s sake, to prevent such offences
in future”). See also Hoomes v. Kuhn, 4 Call 274, 278 (Va. 1792);
Legaux v. Feasor, 1 Yeates 586, 588 (Pa. 1795).43
Finally, Taylor points out that later discussions of punitive
damages in an influential American treatise concluded that a
“reckless disregard” of the rights of others was sufficient to support
an award of punitive damages, thus supporting the notion that
intentional misconduct was not required for a jury to award
punishment damages in Georgia in 1798. See Theodore Sedgwick,
43 We note that, like Genay, Legaux was brought as an “action on the
case,” and the court explained that this form of action was proper as long as
the defendant did not use “unequivocal direct force.” 1 Yeates at 588. That the
claim in Legaux was brought as an action on the case does not preclude our
determination that the claim involved the defendant engaging in intentional
misconduct.
78
2 A Treatise on the Measure of Damages 720 (9th Ed. 1912) (“If the
injury is wantonly inflicted, exemplary damages may be recovered;
as for instance where the act was done with reckless disregard of the
rights of others, or of the consequences of the act.”) (emphasis
supplied; footnote omitted). However, all of the cases cited by
Sedgwick in support of this assertion were decided after 1830 and
none were decided in Georgia, thus diminishing their value for
answering the relevant question here.44
We do not dispute that at some point after 1798, punitive
damages were in some courts around the United States
authorized—in at least some instances—for conduct amounting to
something less than intentional misconduct, such as for wanton or
44We note that recklessness and similar states of mind have at times
long after 1798 been equated with an intentional misconduct under certain
circumstances. See, e.g., George W. Field, A Treatise on the Law of Damages,
82-83 (2d ed. 1881) (explaining that in considering exemplary damages, “[t]he
wrong must be intended, and the result of a spirit of mischief, wantonness, or
of criminal indifference to civil obligations, or the rights of others, from which
malice may well be inferred” (emphasis supplied)); Milwaukee & St. P.R. Co. v.
Arms, 91 U.S. 489, 493-494 (23 LE 374) (1875) (explaining that the jury could
not award punitive damages “unless [the wrongful act] was done wilfully, or
was the result of that reckless indifference to the rights of others which is
equivalent to an intentional violation of them.” (emphasis supplied)).
79
reckless disregard of the rights of others. See, e.g., Milwaukee & St.
P.R. Co. v. Arms, 91 U.S. 489, 493-494 (23 LE 374) (1875)
(recognizing the power of the jury “to assess against the tort-feasor
punitive or exemplary damages” in circumstances where “the injury
complained of has been inflicted maliciously or wantonly, and with
circumstances of contumely or indignity,” and explaining that “the
malice spoken of in this rule is not merely the doing of an unlawful
or injurious act: the word implies that the wrong complained of was
conceived in the spirit of mischief, or criminal indifference to civil
obligations”) (emphasis supplied); Kountz v. Brown, 16 B.Mon. 577,
586 (55 Ky. 577) (1855) (“It is not alone for willful trespasses that
exemplary damages are authorized by law to be given, but they are
authorized also for acts of wanton and reckless carelessness.”).45
45There is some evidence that by 1860, the law in England had similarly
expanded punishment damages beyond damages to punish only intentional
misconduct. See Emblen v. Myers, 6 Hurlstone and Norman 54, 54 (1860)
(concluding that “[i]n an action for wilful negligence, the jury may take into
consideration the motives of the defendant, and if the negligence is
accompanied with a contempt of the plaintiff’s rights and convenience, the jury
may give exemplary damages,” with one judge explaining, “If in actions of
trespass the plaintiff may recover damages beyond the amount of the actual
injury, I see no reason why the same rule should not extend to wilful
negligence”).
80
Courts in other states, however, indicated that punitive
damages were not available absent intentional misconduct. See
Cole v. Tucker, 6 Tex. 266, 268 (1851) (“Compensatory damages are
given where the injury is not tainted with fraud, malice, or willful
wrong; but where either of these elements intervene . . . damages
are given as well for compensation to the sufferer as for the
punishment of the offender.”); Hoyt v. Gelston & Schenck, 13 Johns.
141, 151-152 (NY 1816) (noting that the judge held that the
plaintiff’s admission “that the defendants had not been influenced
by any malicious motives” in their conduct and “had not acted
therein with any view or design of oppressing or injuring the
plaintiff” “precluded the plaintiff from claiming any damages
against the defendants by way of punishment or smart money”). 46
46 On the other end of the spectrum, at least one Georgia judge rejected
altogether the availability of punitive damages. See Cherry v. McCall, 23 Ga.
193, 200 (1857) (expressing “for [him]self” a “strong conviction” that
“vindictive, or punitive, or exemplary, damages” are not “authorized by law”)
(Benning, J., delivering the opinion of the Court); Macon & W.R. Co. v. Winn,
26 Ga. 250, 265 (1858) (“The doctrine of ‘punitive’ damages, is one for which I
cannot see any warrant in the law.”) (Benning, J., dissenting). For the reasons
addressed in our discussion of pre-1798 Georgia law above, this judge’s broad
assertions that punishment damages were not supported by Georgia law were
81
We do not view these much later developments, which varied from
state to state and court to court and were not clearly based in pre-
1776 English law, as persuasive evidence of what the law of Georgia
was in 1798.
Accordingly, Taylor has only presented evidence from which we
can conclude that a plaintiff could succeed on a claim for punishment
damages in Georgia in 1798 against a defendant who engaged in
intentional misconduct. And she has not presented evidence from
which we can conclude that a jury would be authorized to award
such damages when a defendant acted only with an “entire want of
care.” It follows that the constitutionally protected right to a jury
trial in Georgia does not include the right to have a jury determine
wrong. And his apparent misunderstanding of the history of punishment
damages does not influence our view of what the law of Georgia was in 1798.
Notably, the availability of punitive damages was codified in statute in Georgia
in the 1860 Code of Georgia. See Ga. Code Ann. 1860, Part 2, Title 8, Chapter
V, § 2998 (effective Jan. 1, 1863) (“In every tort there may be aggravating
circumstances, aggravation either in the act or the intention, and in that event
the jury may give additional damages, either to deter the wrong doer from
repeating the trespass, or as compensation for the wounded feelings of the
plaintiff.”).
82
punitive damages under the circumstances of this case.47
E. Conclusion
Taylor has failed to show that the right to a jury trial under
the Georgia Constitution protects the jury’s award of punitive
damages in this case. Although the cases cited by Taylor indicate
that the right to a jury trial extended to some aspects of her case,
they do not prove that the scope of the right included a jury awarding
the punitive damages she seeks. More specifically, Taylor has not
47 The dissenting opinion asserts that because juries were authorized to
award punishment damages under certain circumstances in pre-1776 England
and “given the breadth of a jury’s authority,” Georgia’s constitutional right to
a jury trial simply must have included “the right to have a jury determine
whether punitive damages are warranted” and such a right therefore “inheres
in a common law cause of action for premises liability.” Dissent Op. at 10-11.
But this assertion rests on multi-layered extrapolations unsupported by legal
citations or analysis that compel this conclusion.
Moreover, this conclusion—which is based more on speculation than
legal authority—cannot meet Taylor’s burden of showing a “clear and palpable”
conflict between the application of the statutory punitive damages cap to her
claim and Georgia’s Constitution—a heavy burden that has long been the
standard plaintiffs must meet to prevail on a claim that a statute is
unconstitutional. See, e.g., Craig, 1 Ga. at 547 (1846) (explaining, in 1846, that
a court is justified in declaring a statute unconstitutional only if “the opposition
between the constitution and the law . . . [is] plain and palpable.”); Flint River,
5 Ga. at 209 (explaining, in 1848: “It must be a very clear and palpable case,
which would warrant the Judiciary to exercise this delicate duty of declaring a
law unconstitutional[.]”); Carey, 9 Ga. at 258 (explaining, in 1851: “To set
[statutes] aside, their repugnancy to the Constitution should be most
manifest.”).
83
shown that juries in Georgia in or before 1798 or in England in or
before 1776 were authorized to award punishment damages for
claims in which the defendant acted only with an “entire want of
care,” as opposed to engaging in intentional misconduct. She has
therefore failed to meet the difficult burden of showing a “clear and
palpable” conflict between the application of the legislatively
enacted punitive-damages cap in OCGA § 51-12-5.1 (g) to her claim
and the right to a jury trial as preserved in the Georgia Constitution.
See Barnhill, 315 Ga. at 311. See also Metro. Cas. Ins. Co. of N.Y.
v. Huhn, 165 Ga. 667, 672 (142 SE 121) (1928) (“The provision in our
constitution in reference to trial by jury should never in any way be
impinged upon, in cases to which such provision is applicable. But it
is not applicable to this case.”). 48 As a result, Taylor has failed to
48 Practically speaking, this means that the punitive damages awarded
in this case were purely statutory in nature—created by the General Assembly
consistent with its power to authorize punitive damages more expansive than
the punishment damages that were available before 1798—including by
authorizing punitive damages for claims that did not exist in 1798 or for
conduct (such as an “entire want of care”) that could not have been the basis
for punishment damages in 1798. When a remedy such as punitive damages
is not of constitutional origin and is instead purely a creation of statute, the
Georgia Constitution’s jury-trial right does not prevent the General Assembly
from modifying that remedy—including by restricting it.
84
prove that OCGA § 51-12-5.1 (g)—which the trial court applied to
reduce Taylor’s punitive damages award to $250,000—violated her
right to a jury trial protected by Article I, Section I, Paragraph XI
(a) of the Georgia Constitution.
IV. Separation of Powers
Taylor next argues that OCGA § 51-12-5.1 (g) is a violation of
the Georgia Constitution’s guarantee of the separation of powers.
Specifically, Taylor contends that the General Assembly cannot
define the limits of punitive damages as it has in OCGA § 51-12-5.1
(g) because putting a ceiling on punitive damages essentially
constitutes a legislative remittitur, and remittitur is a function
reserved exclusively for the judicial branch. For the reasons we
explain below, we disagree.
The Georgia Constitution provides: “The legislative, judicial,
and executive powers shall forever remain separate and distinct;
and no person discharging the duties of one shall at the same time
exercise the functions of either of the others except as herein
provided.” Ga. Const. of 1983 Art. I, Sec. II, Para. III. When it comes
85
to the General Assembly’s authority in our three-branch system, “we
have held that the Legislature generally has the authority to define,
limit, and modify available legal remedies.” Nestlehutt, 286 Ga. at
737. See also, e.g., Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 543
(436 SE2d 635) (1993) (“We have previously held that the legislature
may lawfully circumscribe punitive damages in this
circumstance.”). 49 We have even made clear that “the General
Assembly properly can enact legislation that departs from the
common law. And, in fulfilling that legislative function, the General
Assembly has not invaded the province of the judiciary.” Dion v.
Y.S.G. Enterprises, Inc., 296 Ga. 185, 189 (766 SE2d 48) (2014)
(citations and punctuation omitted). Cf., Jones v. State, 290 Ga. 670,
676 (725 SE2d 236) (2012) (rejecting a challenge based on the
separation of powers doctrine because “the legislature acted within
constitutional bounds in establishing maximum and minimum
punishment and eliminating judicial discretion in sentencing
49As explained in Division III above, the legislature’s authority to
circumscribe damages may be limited by other constitutional provisions.
86
certain serious violent offenders”) (citation and punctuation
omitted).
As the discussion above shows, creating punitive damages like
those Taylor was awarded here—and defining the parameters of
that remedy’s availability—is a legislative power. Taylor argues,
however, that in creating a cap on punitive damages, the legislature
improperly infringed on the judicial power of determining whether
and when to grant a new trial.
It is true that the judicial branch alone has the power to “grant
new trials on legal grounds,” Ga. Const. of 1983 Art. VI, Sec. I, Para.
IV, and that “[j]udicial remittitur, the power to reduce a damages
award deemed clearly excessive, is a corollary of the courts’
constitutionally derived authority to grant new trials,” Nestlehutt,
286 Ga. at 737. In contending that OCGA § 51-12-5.1 (g) violates
the separation of powers, Taylor characterizes the punitive damages
cap contained in OCGA § 51-12-5.1 (g) as an improper legislative
remittitur—a contention that, if correct, very well could constitute a
87
legislative usurpation of judicial power. 50 But we are not persuaded
that the limitation contained in OCGA § 51-12-5.1 (g) constitutes a
remittitur as Taylor argues.
Unlike judicial remittitur, which involves judges weighing
evidence and is authorized only where the “‘jury’s award of damages
is clearly so . . . excessive as to any party as to be inconsistent with
the preponderance of the evidence,’” damages caps “are
50 Taylor points out that some cases from other states have opined that
legislative caps on damages are a violation of those states’ separation of powers
doctrines because they infringe on the judicial power of remittitur. See Best v.
Taylor Mach. Works, 179 Ill. 2d 367, 413 (689 NE2d 1057) (1997) (explaining
that a cap on non-economic damages “undercuts the power, and obligation, of
the judiciary to reduce excessive verdicts,” and thus “functions as a ‘legislative
remittitur’”); Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 654 (771 P2d 711,
721) (1989), amended, 780 P2d 260 (Wash. 1989) (explaining that a statutory
cap on non-economic damages “may, indeed, violate the separation of powers”
because the cap applies without judicial “case-by-case determinations” of the
circumstances of the case). As Devereux points out, however, other states have
rejected this idea of an improper legislative remittitur and concluded that
damage caps do not run afoul of the required separation of powers. See Estate
of Overbey v. Chad Franklin Nat’l Auto Sales N., LLC, 361 SW3d 364, 378 (Mo.
2012) (holding that a cap on punitive damages “does not violate the separation
of powers doctrine” and rejecting the argument that such a cap “restrain[ed]
the judiciary’s power to grant remittitur of judgments”); Rhyne v. K-Mart
Corp., 149 N.C. App. 672, 679 (562 SE2d 82, 89) (2002) (rejecting a separation
of powers challenge to a cap on punitive damages and explaining, “remittitur
and the punitive damages cap operate under differing circumstances”); Gourley
ex rel. Gourley v. Nebraska Methodist Health Sys., Inc., 265 Neb. 918, 955 (663
NW2d 43, 76) (collecting cases that have “specifically disagreed with the
reasoning that a cap acts as a legislative remittitur” and finding those cases
more persuasive).
88
automatically triggered when a damages award exceeds the
threshold amount.” Nestlehutt, 286 Ga. at 737-738 (citing OCGA
§ 51-12-12 (b)). These caps do not require judges to weigh the
evidence or other circumstances of the individual cases. Instead, the
caps apply to all damages awards that fall under the statutorily-
prescribed parameters. Thus, we conclude that the very nature and
operation of OCGA § 51-12-5.1 (g) is different from the nature of the
judicial remittitur power and does not infringe on the judicial power
as Taylor contends. Taylor’s claim that § 51-12-5.1 (g) is a violation
of the separation of powers required by the Georgia Constitution
fails.
V. Equal Protection
Finally, Taylor argues that OCGA § 51-12-5.1 (g) violates the
Georgia Constitution’s guarantee of equal protection. The Georgia
Constitution says: “Protection to person and property is the
paramount duty of government and shall be impartial and complete.
No person shall be denied the equal protection of the laws.” Ga.
Const. of 1983 Art. I, Sec. I, Para. II.
89
“In analyzing an equal protection challenge, the first step is
deciding what level of scrutiny to apply to the statute. If neither a
suspect class nor a fundamental right is implicated, the most lenient
level of judicial review—rational basis—applies.” Harvey v.
Merchan, 311 Ga. 811, 825-826 (860 SE2d 561) (2021) (citations and
punctuation omitted). 51 Here, it is undisputed that Taylor is not a
member of a protected class, and the only fundamental right Taylor
argues is implicated by the statutory limit on punitive damages is
her right to a jury trial under the Georgia Constitution. As
explained in Division III above, the limit on punitive damages does
not violate her constitutional right to a jury trial, and she does not
argue that any other fundamental right is implicated. Thus, we
apply rational basis review to her claim. See Mack Trucks, 263 Ga.
51 We note that in Harvey, as in many of our cases, we treated the equal
protection afforded by the Georgia Constitution as coextensive with that
provided by the federal Constitution—in large part because the parties did not
ask us to do otherwise. See 311 Ga. at 825 n.13. Although in this case, Taylor
raises an equal protection claim under only the Georgia Constitution, “neither
party makes an argument that the equal protection clause under Georgia’s
Constitution should be construed differently than the parallel provision in the
United States Constitution. Therefore, we decline to consider in this case
whether the state provision should be considered any differently than the
federal provision.” Id.
90
at 541 (applying “the rational basis test, which the parties concede
is applicable here,” to an equal protection challenge to OCGA § 51-
12-5.1 (e) (2), which requires that 75 percent of a punitive damages
award in a product liability action be paid into the state treasury);
Teasley, 243 Ga. at 563-564 (considering whether “a rational
relationship” existed supporting the elimination of exemplary
damages for accident victims who did not sustain “serious injury”). 52
52 Taylor cites some cases from other states that have applied a more
stringent test than rational basis in evaluating statutory caps on punitive
damages. See Trujillo v. City of Albuquerque, 110 NM 621, 628 (798 P2d 571)
(1990) (holding that intermediate scrutiny should be applied to an equal
protection challenge to a cap on damages recovered from a city because “[a] tort
victim’s interest in full recovery of damages calls . . . for a form of scrutiny
somewhere between the largely toothless invocation of minimum rationality
and the nearly fatal invocation of strict scrutiny.”) (citation and punctuation
omitted); Balboni v. Ranger Am. of the V.I., Inc., 70 VI 1048, 1096 (2019)
(applying heightened rational basis review to review an equal protection
challenge to a cap on non-economic damages in car accidents because
“heightened rational basis review represents the appropriate standard for
determining the validity of a Virgin Islands statute under the equal protection
clause of the Virgin Islands Bill of Rights”). We are not persuaded by the
reasoning in these cases and note that the majority of states have applied the
rational basis test. See Gourley, 265 Neb. at 946 (collecting cases and noting
that “[a] majority of jurisdictions apply a rational basis or other similar test
and determine that a statutory cap on damages does not violate equal
protection”). See also, e.g., Pulliam v. Coastal Emergency Servs. of Richmond,
Inc., 257 Va. 1, 21 (509 SE2d 307) (1999) (“[N]o fundamental right or suspect
class is affected by application of the medical malpractice cap.”); Phillips v.
Mirac, Inc., 251 Mich. App. 586, 596-597 (651 NW2d 437) (2002) (applying
91
Under the rational basis test, the party challenging the
constitutionality of a statute “bear[s] the burden of establishing that
they are treated differently than similarly situated individuals and
that there is no rational basis for such different treatment.” Harvey,
311 Ga. at 826 (citations and punctuation omitted). “And because
statutes are presumed to be constitutional, the party challenging the
law must negate every conceivable basis that might support it.” Id.
See also State v. Nankervis, 295 Ga. 406, 408 (761 SE2d 1) (2014)
(“Under the rational basis test, a court will uphold the statute if,
under any conceivable set of facts, the classifications drawn in the
statute bear a rational relationship to a legitimate end of
government not prohibited by the Constitution.”) (citations and
punctuation omitted).
Here, Taylor argues that because OCGA § 51-12-5.1 (g)
rational basis to review a cap on recoverable damages for certain motor vehicle
accidents, explaining that the cap “does not create an inherently suspect
classification, nor is the fundamental right to a jury trial implicated” and that
the cap is one of the “classification schemes created by various tort reform
legislation [that] are social or economic legislation,” which the court had held
was subject to the rational basis test).
92
established a fixed amount as the cap on punitive damages, it treats
similarly situated tort plaintiffs differently based on the amount of
punitive damages the jury awards, explaining that, for example,
where a jury awards $250,000 in punitive damages, the victim
recovers 100 percent of the jury’s award, but in a case like this one,
where a jury awards $50,000,000, the plaintiff recovers only 0.5
percent of the jury’s award. But even assuming for the sake of
argument that (1) the two plaintiffs in Taylor’s hypothetical are
similarly situated for purposes of an equal protection analysis and
(2) recovering different percentages of a jury’s award is a difference
that is cognizable under the equal protection rubric, Taylor’s
contention still fails. That is because we can identify a “conceivable
basis that might support” this different treatment. Harvey, 311 Ga.
at 826. For example, the General Assembly could have concluded
that choosing a flat-sum cap rather than a cap based on, for example,
a percentage of the jury’s award was an appropriate way to address
the need to punish and deter defendants while limiting economic
uncertainty. See Mack Trucks, 263 Ga. at 543 (explaining that “the
93
legislature has determined that, absent specific intent to harm,
there are public policy reasons which dictate that a cap should be
placed on punitive damages”).
Taylor further argues that the limit of $250,000 is not
rationally related to any purpose that could be served by a limit on
punitive damages because $250,000 is an arbitrary amount.
However, to the extent this argument varies from the argument
addressed above and is simply a challenge to the General Assembly’s
choice of $250,000, Taylor does not explain how $250,000 (as
opposed to some other amount) treats similarly situated plaintiffs
differently. That is a threshold requirement of an equal protection
argument, and the argument fails for the lack of it.53
Thus, Taylor has failed to demonstrate a violation of the
Georgia Constitution’s equal protection guarantee. And because
Taylor has not met the heavy burden required to show that OCGA §
51-12-5.1 (g) violates the Georgia Constitution, we affirm the trial
53 This threshold requirement is also missing from Taylor’s argument
that because the $250,000 cap is not adjusted to inflation, it is too low to serve
its intended purpose now.
94
court’s order reducing the punitive damages award to $250,000.
S22X1061
VI. Sufficiency of the Evidence Supporting the Jury’s Punitive
Damages Award
In its cross-appeal, Devereux first argues that the trial court
should have granted its motion for a directed verdict on Taylor’s
claim for punitive damages. As noted above, OCGA § 51-12-5.1 (b)
says: “Punitive damages may be awarded only in such tort actions
in which it is proven by clear and convincing evidence that the
defendant’s actions showed willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care which would
raise the presumption of conscious indifference to consequences.”
Indeed,
[s]omething more than the mere commission of a tort is
necessary for the imposition of punitive damages.
Negligence alone, even gross negligence, is insufficient to
support punitive damages. Punitive damages cannot be
imposed without a finding of culpable conduct based upon
either intentional and wilful acts, or acts that exhibit an
entire want of care and indifference to consequences.
MDC Blackshear, 273 Ga. at 173. When reviewing a jury’s verdict
95
that the plaintiff is entitled to punitive damages, an appellate court
considers whether there is any evidence to support the jury’s verdict
under the “clear and convincing” standard. See Poverty Destroyed
Forever, LLC v. Visio Financial Services, Inc., 360 Ga. App. 691, 692
(859 SE2d 612) (2021).
Here, Devereux argues that the jury could not find that there
was clear and convincing evidence that Devereux acted with “an
entire want of care and indifference to consequences” because there
was evidence from which the jury could conclude that Devereux took
some measures to ensure McGee’s safety. For example, Devereux
points to evidence that it vetted Singleterry and had no reason to
believe he posed a danger, that Devereux prohibits sexual contact
between staff and residents and trains staff about setting
boundaries and sexual risk reduction, and that the number of direct-
care professionals assigned to McGee’s cottage on the night of the
assault satisfied Devereux’s required ratios. However, in reviewing
the jury’s verdict on appeal, we consider whether there is any
evidence to support the jury’s verdict—not whether there was any
96
evidence from which the jury could have concluded that Devereux’s
actions showed care.
With respect to the applicable “any evidence” standard, we
conclude that Taylor did, indeed, present evidence from which jurors
could have inferred that Devereux acted with “an entire want of care
and indifference to consequences” with respect to McGee. To that
end, although evidence was presented that Devereux ran a
background check on Singleterry—as it does on all employees before
they begin employment—evidence was also presented that despite
Devereux’s hiring policies, there were still incidents of Devereux
staff members in other states sexually assaulting residents,
including three before 2012 and five after 2012, and one incident of
a staff member “grooming” two patients in the Georgia facility in
2017.54 The jury also could have credited evidence that Devereux
knew that its training and supervision policies failed to prevent two
54 Devereux argues that these other occurrences were not sufficiently
similar to constitute evidence in support of punitive damages. Of course, if the
jury found these other incidents too dissimilar, it was authorized to disregard
them.
97
incidents of patients sexually assaulting other patients in 2013 at
the Georgia facility as well as the three incidents of inappropriate
sexual activity between McGee and other residents in 2012. A
Devereux employee testified that the incidents happened because of
“poor supervision” and acknowledged that the staff needed “further
training.” As to training, although Hartman testified that all direct-
care professionals were trained in “sexual risk reduction,” Mays and
Hudson testified that they were not given any training as to how to
address “sexually reactive” patients. Further, Mays testified that
she was not even told about McGee’s “sexual reactivity” when
assigned to supervise McGee’s cottage.
Although evidence was presented that a sufficient number of
direct-care professionals were assigned to McGee’s cottage based on
Devereux’s required supervision ratios, the jury could have
nonetheless credited evidence that the required ratios were
routinely disregarded by direct-care professionals who left shifts
early, and by Devereux, which took no action to address that
situation. And although evidence was presented that there was no
98
indication Singleterry was a danger to any residents, the jury could
have credited testimony that Singleterry being assigned to a female
cottage was “a mismatch for him” and that he was assigned to
supervise McGee’s cottage only because Devereux had “a limited
staff on the shift.” The jury was also entitled to credit Mays’s
testimony that if she had been fully informed about McGee’s “sexual
reactivity,” she would not have left Singleterry alone to supervise
McGee’s cottage. Finally, the jury could have credited evidence that
after the sexual assault, Devereux did not take appropriate steps to
help McGee recover from her trauma and did not implement its own
recommendations to improve Devereux’s hiring and training
procedures developed in response to the crime. Given all of this
evidence, and especially in light of McGee’s history of being sexually
abused and acting out sexually and her recent sexual activity at
Devereux in three separate incidents, the jury could have concluded
that Taylor presented clear and convincing evidence that Devereux’s
conduct demonstrated an “entire want of care” with respect to the
safety of McGee and its other patients.
99
Even to the extent evidence was presented that supported the
reasonableness of Devereux’s training, hiring, or employment
policies, or conflicting evidence was presented—such as about
employee training related to sexual risks for residents or the efficacy
of Devereux’s supervision ratios—there was also evidence presented
from which the jury could conclude that Taylor presented clear and
convincing evidence that Devereux’s actions toward McGee
demonstrated an “entire want of care which would raise the
presumption of conscious indifference to consequences.” See, e.g.,
Ponce de Leon Condos. v. DiGirolamo, 238 Ga. 188, 189-190 (232
SE2d 62) (1977) (holding that when the “appellants made some
effort to alleviate” the run-off problem they created, but did not
address the source of the problem, “[t]he jury was authorized to find
that appellants had acted with ‘conscious indifference’ to
consequences, if not in creating, then in failing to correct a drainage
system which was causing damage to appellee”); Jones v. Bebee, 353
Ga. App. 689, 695 (839 SE2d 189) (2020) (holding that the trial court
did not err by denying the motion for directed verdict on punitive
100
damages, because “while it is true that there was some evidence of
remedial steps taken by the Joneses after the first two attacks by
their dog, it was for the jury to determine ‘whether the actions [the
Joneses] took on the day of the incident showed the requisite want
of care or conscious indifference to the consequences that would
warrant punitive damages”) (citation and punctuation omitted;
alteration in original). 55 Thus, Devereux has failed to show that
55 Devereux cites several cases where the evidence was found to be
insufficient to support an award of punitive damages, arguing that these cases
show that as long as Devereux took some measures to protect McGee, it cannot
be liable for punitive damages. The cases decided by this Court are
distinguishable from the case before us because in those cases the evidence
showed that the defendants took reasonable steps to avoid the injury and there
was no additional evidence showing a want of care. See MDC Blackshear, 273
Ga. at 174 (holding that although the appellant may have been negligent in
failing to correctly determine the owner of the land after the appellee informed
it of his claim, in light of the appellant’s due diligence, including performing a
title search and the sanction the appellant received from City officials to pave
the property, the trial court should not have concluded that “the record shows
clearly and convincingly that [the appellant]’s actions were in wanton and
willful disregard of [the appellee]’s property rights”); Stone Man, Inc. v. Green,
263 Ga. 470, 471-472 (435 SE2d 205) (1993) (holding that although the
appellant’s operation of a quarry was a nuisance, in this case of a commercial
enterprise “which is accompanied by a certain amount of unpleasant but
unavoidable effects or byproducts,” the appellant’s “compliance with county,
state, and federal regulations is not the type of behavior which supports an
award of punitive damages”). Devereux also cites a number of cases from the
Court of Appeals. Even assuming without deciding that all of these cases were
correctly decided, they are not binding on this Court and are, in any event,
factually distinguishable. See, e.g., Roberts v. Quick Rx Drugs, Inc., 343 Ga.
101there was insufficient evidence to support the jury’s verdict on
punitive damages, and we affirm that verdict as a result.
VII. Sufficiency of the Evidence Supporting the Attorney Fee
Award
Devereux next argues that the jury’s verdict that Taylor was
entitled to attorney fees was not supported by the evidence. OCGA
§ 13-6-11 says:
The expenses of litigation generally shall not be allowed
as a part of the damages; but where the plaintiff has
specially pleaded and has made prayer therefor and
where the defendant has acted in bad faith, has been
stubbornly litigious, or has caused the plaintiff
unnecessary trouble and expense, the jury may allow
them.
The jury found that Devereux acted in bad faith. 56 “The issue
of attorney fees under OCGA § 13-6-11 is a question for the jury and
App. 556, 561-562 (807 SE2d 476) (2017); Wardlaw v. Ivey, 297 Ga. App. 240,
242 (676 SE2d 858) (2009).
56As noted above in Division I, the jury marked on the verdict form both
that Devereux had acted in bad faith and had been “stubbornly litigious or
caused unnecessary trouble or expense.” Because, as discussed below, we
affirm the bad-faith basis for the attorney fee award, we need not decide
whether there was any evidence to support this alternate basis for attorney
fees. See, e.g., Burlington Air Express, Inc. v. Georgia-Pacific Corp., 217 Ga.
App. 312, 313-314 (457 SE2d 219) (1995).
102
an award will be upheld if there is any evidence to support it.” Duffy
St. S.R.O., Inc. v. Mobley, 266 Ga. 849, 850 (471 SE2d 507) (1996).
See also City of Hoschton v. Horizon Communities, 287 Ga. 567, 569
(697 SE2d 824) (2010) (“An award of attorney fees under OCGA §
13-6-11 will be affirmed if there is any evidence to support it.”). Bad
faith warranting an award of attorney fees must be based on conduct
“during the transaction out of which the lawsuit arose.” Merlino v.
City of Atlanta, 283 Ga. 186, 191 (657 SE2d 859) (2008).
Both parties argue that the bad-faith question here is tied to
the question of punitive damages, with Devereux asserting that “the
bad faith claim fails for the same reason as the punitive damages
claim.” 57 However, we have already held in Division VI that there
was at least some evidence presented at trial from which the jury
57 Although Devereux cites language from Wilson v. Redmond Constr.,
Inc., 359 Ga. App. 814, 816-817 (860 SE2d 118) (2021), arguing that there was
no evidence it acted with “sinister motive,” “ill will,” or “conscious doing of
wrong,” Devereux does not argue that in order to show bad faith, Taylor was
required to prove something more than that Devereux acted with an “entire
want of care.” Rather, Devereux argues that Taylor failed to present evidence
that Devereux acted with an “entire want of care”—an argument we reject in
Division VI above.
103
could conclude that Devereux acted with “that entire want of care
which would raise the presumption of conscious indifference to
consequences” with respect to McGee’s sexual assault, OCGA § 51-
12-5.1 (b). See also Tyler, 272 Ga. at 120 (“A conscious indifference
to consequences relates to an intentional disregard of the rights of
another.”). Just as this evidence supports the jury’s finding that
Taylor was entitled to punitive damages under OCGA § 51-12-5.1
(b), it constitutes “any evidence” to support the jury’s finding that
Devereux acted in bad faith toward McGee by being consciously
indifferent to the consequences of its failure to, among other things,
give McGee appropriate and adequate supervision. See, e.g.,
Merlino, 283 Ga. at 190-191 (concluding that the defendant’s
plugging a pipe despite knowing that such action could lead to
flooding on the plaintiff’s property was “some evidence” from which
the jury could find “bad faith”); DiGirolamo, 238 Ga. at 190 (“The
same testimony as to the appellee’s early, persistent, and unheeded
complaints which authorizes the verdict for punitive damages in this
case also provides authorization for the jury’s finding that the
104
appellants acted in bad faith in failing to correct the run-off
problem.”). Thus, we conclude that the evidence presented at trial
was sufficient to support the jury’s finding that Taylor was entitled
to attorney fees under OCGA § 13-6-11.
VIII. Sufficiency of the Evidence Supporting the Trial Court’s
Determination of the Amount of Attorney Fees
Devereux next argues that Taylor did not present sufficient
evidence of the amount of attorney fees to which Taylor was entitled.
As noted above in Division I, after the jury found that Taylor was
entitled to attorney fees, the parties agreed that the trial court
should determine the amount of fees, and the trial court held a
hearing on the fee amount and concluded that Taylor was entitled
to 40 percent of the recoverable damages award, or $2,100,000 in
attorney fees.58 On appeal, Devereux argues (as it did at trial) that
Taylor’s attorney fee award could not be based on the 40 percent
contingency fee agreement she signed with her attorneys—and
which she entered into evidence at the hearing on attorney fees—
58 This was calculated based on the jury’s verdicts with the $250,000
limit on punitive damages applied, see OCGA § 51-12-5.1 (g).
105
and that Taylor otherwise failed to present evidence sufficient to
prove the amount of her attorney fees.
In addressing this argument, both parties argue that we should
look to the standard this Court set out in Georgia Department of
Corrections v. Couch, 295 Ga. 469 (759 SE2d 804) (2014), in which
we evaluated what kind of evidence was necessary to prove the
amount of attorney fees under OCGA § 9-11-68 when the party
seeking fees signed a contingency-fee agreement. More specifically,
Taylor points out that the attorney fee award at issue in this case
was made under OCGA § 13-6-11, and that the text of OCGA §§ 9-
11-68 and 13-6-11 differs in the way it describes the attorney fees
that can be awarded. Compare OCGA § 9-11-68 (providing for the
recovery of “reasonable attorney’s fees”) with OCGA § 13-6-11
(providing for the recovery of “[t]he expenses of litigation”). She
argues, however, that we “need not reach” whether we should apply
a more favorable standard to her attorney fee award based on the
lack of “reasonable” language in OCGA § 13-6-11, because she wins
under the arguably stricter standard set out in Couch. We agree
106
that Taylor prevails even applying Couch. We therefore assume
without deciding that Couch applies to the attorney fee award at
issue in this case, and we conclude that Taylor has met the standard
set forth in Couch.
In Couch, this Court said:
“[E]vidence of the existence of a contingent fee contract,
without more, is not sufficient to support the award of
attorney fees. An attorney cannot recover for professional
services without proof of the value of those services.”
295 Ga. at 483 (citing Brandenburg v. All–Fleet Refinishing, Inc.,
252 Ga. App. 40, 43 (555 SE2d 508) (2001)). We further explained
that in determining the amount of an award of attorney fees, “‘[a]
court may consider a contingent fee agreement,’” but
“[w]hen a party seeks fees based on a contingent fee
agreement, . . . the party must show that the contingency
fee percentage was a usual or customary fee for such case
and that the contingency fee was a valid indicator of the
value of the professional services rendered. In addition,
the party seeking fees must also introduce evidence of
hours, rates, or some other indication of the value of the
professional services actually rendered.”
Id. (citing Brock Built, LLC v. Blake, 316 Ga. App. 710, 714-715 (730
SE2d 180) (2012)).
107
“It is solely for the trier of fact to resolve whether attorney fees
and expenses should be awarded under OCGA § 13-6-11, and, if so,
in what amount. . . . We review the decision about whether and to
what extent to award attorney fees and expenses under the
deferential ‘any evidence’ standard.” Water’s Edge Plantation
Homeowner’s Ass’n, Inc. v. Reliford, 315 Ga. App. 618, 619 (727 SE2d
234) (2012). See also City of Hoschton, 287 Ga. at 569.
A. Evidence Submitted by Taylor Showing the Amount of
her Attorney Fees
As evidence of her attorney fees, Taylor presented the contract
signed by McGee and then Taylor agreeing to pay her attorneys a 40
percent contingency fee for trial work as well as affidavits from five
attorneys, employed by three law firms, who worked on the case.
Three attorneys from the first law firm described their
qualifications; averred that the 40 percent contingency fee was
customary for this kind of case; and summarized the work that
plaintiff’s counsel did on the case over nearly eight years, including
investigating McGee’s sexual assault, meeting with potential
108
witnesses, attempting to settle the case without litigation, drafting
and filing the complaint, taking nine depositions, defending
depositions of two witnesses, inspecting Devereux’s Georgia
facilities, drafting discovery requests and responses, reviewing
discovery, litigating discovery issues, briefing and arguing against
Devereux’s motions for summary judgment on punitive damages
and litigation expenses, reviewing and briefing the admissibility of
other incidents, attending a pretrial conference on motions in
limine, preparing for trial, and participating in the trial. An
attorney from the second law firm described his qualifications and
summarized the work done by the plaintiffs’ attorneys, pointing to
the same acts described by the other three attorneys. And an
attorney from the third law firm described her qualifications and the
appropriateness of the contingency fee. Additionally, one attorney
from each law firm detailed the expenses advanced by each firm. 59
Devereux submitted an affidavit from one of its lawyers
59 Devereux does not dispute the appropriateness of the amount awarded
by the trial court in litigation expenses.
109
attesting that Devereux’s attorneys and paralegals worked 730.4
hours on the case. Taylor responded with supplemental affidavits
from four attorneys, who “reasonably estimate[d],” based on their
“education, training, and experience, and based on the work [they]
performed on this case, as well as the work performed by Plaintiff’s
other counsel” that Taylor’s counsel “has worked, at least, four to
five times as much as” Devereux’s counsel on the case. The
affidavits noted that for most of the case, only one attorney from the
firm representing Devereux formally appeared and litigated the
action, whereas Taylor “has reasonably and necessarily been
represented by at least eight attorneys . . . throughout substantial
phases of this action,” and that “at trial itself, at least six attorneys,
plus an assistant, paralegal, and a trial consultant (who herself is a
lawyer), represented Plaintiff and divided up various tasks at trial.”
Further, one of Taylor’s attorneys stated that his hourly rate is $625
per hour and that the reasonable market rates for the work of the
three attorneys from the first law firm who submitted affidavits
would be $625, $875, and $900 per hour, based on their experience
110
and the type of work they completed on this case. He then multiplied
the lowest market rate of $625 per hour by 2921.6 and 3652 hours 60
to conclude that the reasonable attorney fee range was $1,826,000
to $2,282,500. Supplemental affidavits stated that Taylor’s counsel
had rendered more services since counsel had submitted their initial
affidavits, including handling post-trial discovery requests from
Devereux, preparing and responding to briefs about attorney fees
and the punitive damages cap, preparing filings addressing McGee’s
death, and preparing for a hearing about attorney fees and punitive
damages.
As it noted in its order on attorney fees, the trial court
considered the affidavits submitted by Taylor’s attorneys and found
that the “40% contingency fee is usual and customary and is
reasonable under the circumstances in this case.” The trial court
then considered whether the contingency amount “‘was a valid
indicator of the value of the professional services rendered,’” citing
Couch, 295 Ga. at 483. The court observed that the case was “time-
60 These hours were calculated by multiplying 730.4 hours by 4 and by 5.
111
consuming, complex, and hard-fought” and noted that the attorney
affidavits “set forth information relating to the value of the
professional services actually rendered” and noted that during the
trial, “[a]pproximately 6 attorneys, 1 assistant, 1 paralegal, and 1
trial consultant (also an attorney), appeared at trial and divvyed up
the various tasks a jury trial requires.” The court also observed that
counsel completed substantial legal work on behalf of Taylor post-
trial. The court thus found that Taylor “provided sufficient evidence
of the value of the professional services actually rendered by her
trial counsel over an eight-year period” and that all of the
circumstances “justify the 40% contingency fee of the jury’s
enforceable verdict,” citing several Court of Appeals cases, including
one applying Couch: Cajun Contractors, Inc. v. Peachtree Property
Sub, LLC, 360 Ga. App. 390, 405-406 (861 SE2d 222) (2021).
B. Sufficiency of the Evidence Supporting the Amount of
Attorney Fees
Devereux argues that the evidence described above was not
sufficient under Couch to support the attorney fee award because
112
Taylor presented merely “broad summaries” of work performed and
“hindsight estimates” of the time spent. And although it is true that
Taylor did not present contemporaneous records documenting each
hour her attorneys spent working on the case, that is not what
Couch requires. We said in Couch that when a party seeks attorney
fees based on a contingency-fee agreement, the party “must show
that the contingency fee percentage was a usual or customary fee for
such case and that the contingency fee was a valid indicator of the
value of the professional services rendered,” and that “the party
seeking fees must also introduce evidence of hours, rates, or some
other indication of the value of the professional services actually
rendered.” 295 Ga. at 483 (emphasis supplied).
Here, where Taylor presented not only her contingency-fee
agreement but also evidence that the contingency fee was customary
for this kind of case, and evidence of the amount and type of work
done by the many attorneys who represented her, we cannot say that
the trial court erred by concluding that the standard we articulated
in Couch was met. See Cajun Contractors, 360 Ga. App. at 405-406
113
(holding that the party seeking attorney fees presented sufficient
evidence of the amount of attorney fees where the party presented
evidence of the contingency fee agreement, affidavits that the fee
was customary and reasonable, estimates of the number of the hours
the attorneys performed, and affidavits describing the work the
attorneys performed). See also City of Atlanta v.
Hofrichter/Stiakakis, 291 Ga. App. 883, 890 (663 SE2d 379) (2008)
(holding that the evidence was sufficient to establish the amount of
attorney fees when the plaintiff introduced the 40 percent
contingency fee contract and evidence that this was the customary
fee in such a case and that her attorney “had taken over 26
depositions and had spent hundreds of hours on the case”). 61
61 In support of its argument, Devereux cites several cases in which there
was no contingency fee agreement and the Court of Appeals held that only
generalized summaries of the number of hours spent on the case was
insufficient evidence to sustain the amount of the fee award. See, e.g.,
Hardnett v. Ogundele, 291 Ga. App. 241, 245 (661 SE2d 627) (2008). We do not
view these cases as persuasive in the context of this case, where the
contingency-fee agreement and evidence that it was a customary fee was
presented to, and considered by, the fact-finder. Devereux also cites Kennison
v. Mayfield, 359 Ga. App. 52 (856 SE2d 738) (2021), in which the Court of
Appeals held that the evidence presented was not sufficient to support the trial
court’s award of attorney fees that matched the fees due under the contingency-
114
IX. Nunc Pro Tunc Entry of the Final Judgment Pertaining to
Compensatory and Punitive Damages
Finally, Devereux contends that the trial court erred when, as
part of the “Final Judgment” entered on February 8, 2022, the trial
court entered the judgments as to compensatory and punitive
damages nunc pro tunc 62 to the entry of the jury’s verdicts on
November 18 and 19, 2019, and therefore ordered that those
amounts begin accruing post-judgment interest from the dates of the
verdicts, as opposed to from the date the “Final Judgment” was
entered. Devereux argues that this was improper because the
fee agreement. See id. at 68. We have real doubts about the correctness of
Kennison’s holding on this issue under Couch, some of which were also raised
by the dissent in that case. See 359 Ga. App. at 73, 76-77 (McFadden, C.J.,
concurring fully in part and dissenting in part) (noting that the trial court
“heard extensive evidence about the value of the professional services the
plaintiffs’ attorneys actually rendered, [and] made findings of fact on the
issue”). Notably, the division of Kennison that pertains to the sufficiency of the
evidence to show the attorney fee amount is not binding Court of Appeals
precedent, because a majority of the judges did not fully concur in its rationale.
See Court of Appeals Rule 33.2 (a) (1) (“If an appeal is decided by a division of
this Court or by the Court sitting en banc, a published opinion in which a
majority of the judges fully concur in the rationale and judgment of the decision
is binding precedent.”).
62The phrase “nunc pro tunc,” which is Latin for “now for then,” means
that an order or judgment “ha[s] retroactive legal effect through a court’s
inherent power.” Black’s Law Dictionary (11th ed. 2019).
115
attorney fee award had not yet been decided in November 2019, so
the judgment was not final. However, Devereux has failed to show
that the trial court erred by entering the damage judgments nunc
pro tunc to the day they were rendered by the jury and imposing
post-judgment interest from that date.
A trial court may enter a judgment nunc pro tunc to “perfect[]
the record” and properly reflect when an order or judgment “should
have been entered.” Maples v. Maples, 289 Ga. 560, 562 (713 SE2d
865) (2011) (“The trial court had authority to enter a divorce decree
nunc pro tunc as of [the prior] date . . . where the jury had previously
returned a verdict and the cause was ripe for judgment.”) (citations
and punctuation omitted). This power applies to “all judgments,
whether interlocutory or final.” Perdue v. Bradshaw, 18 Ga. 287,
288 (1855) (“The Common Law rule is, that all judgments, whether
interlocutory or final, shall be entered of record, of the day of the
month and year when signed. Still, the discretion is given to the
Court or Judge to order a judgment to be entered nunc pro tunc.
Indeed, it is not only competent to do this, but it seems to be almost
116
a matter of course.”) (emphasis in original). See also Pendergrass v.
Duke, 147 Ga. 10, 11 (92 SE 649) (1917) (“A nunc pro tunc entry is
for the purpose of recording some action that was taken or judgment
rendered previously to the making of the entry, which is to take
effect as of the former date.”).
OCGA § 7-4-12 (a) provides that “[a]ll judgments in this state
shall bear annual interest upon the principal amount
recovered . . . .” And subsection (c) says: “The postjudgment interest
provided for in this Code section shall apply automatically to all
judgments in this state and the interest shall be collectable as a part
of each judgment whether or not the judgment specifically reflects
the entitlement to postjudgment interest.” OCGA § 7-4-12
“presuppos[es] the rendition of a judgment for a sum certain, or for
an amount mathematically determinable without reliance upon
additional evidence.” Brown v. Brown, 265 Ga. 725, 727 (462 SE2d
609) (1995).
In this case, Devereux is correct that the judgment in the case
overall was not final in November 2019. See Islamkhan v. Khan,
117
299 Ga. 548, 550 (787 SE2d 731) (2016) (holding that because the
trial court order reserved the pending issue of attorney fees for later
determination, the order was not a “final judgment” but instead “an
interlocutory order appealable only pursuant to the procedures set
forth in OCGA § 5-6-34 (b)”).63 See also OCGA § 9-11-54 (b) (“[A]ny
order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties shall not terminate the action as to any of
the claims or parties[.]”). However, Devereux has not shown that a
judgment of damages returned by a jury must be a “final judgment”
that is immediately appealable in order for it to be a “judgment”
under OCGA § 7-4-12. Here, we see no impediment to the trial
court’s entering the jury’s damages awards—which fully decided the
claims for compensatory and punitive damages—nunc pro tunc to
63 OCGA § 5-6-34 (a) (1) says that “[a]ll final judgments, that is to say,
where the case is no longer pending in the court below,” may generally be
immediately and directly appealed. OCGA § 5-6-34 (b) provides procedures to
seek an appeal of “an order, decision, or judgment, not otherwise subject to
direct appeal,” including judgments that are not “final.”
118
accurately reflect when the verdicts had been returned and signed
by the jury. And we see no impediment to the court applying post-
judgment interest to those judgments, which were “for a sum
certain.” Brown, 265 Ga. at 727.64
Notably, the Court of Appeals has affirmed a trial court’s
64 Although Devereux’s main argument is that the judgments lacked
finality because there was no decision on the attorney fee award, Devereux also
notes in its brief on appeal that the punitive damages award also was not
settled because the trial court had not decided whether OCGA § 51-12-5.1 (g)
limited it. However, Devereux does not cite any authority for the proposition
that a jury verdict cannot be subject to post-judgment interest if it is later
reduced, and cases from this Court and the Court of Appeals indicate that post-
judgment interest may still begin to run at the time the original judgment is
entered, even if the judgment is later modified. See CRS Sirrine v. Dravo
Corp., 219 Ga. App. 301, 304 (464 SE2d 897) (1995) (adopting the federal
approach to this question and holding: “In general, where a first judgment
lacks an evidentiary or legal basis, post-judgment interest accrues from the
date of the second judgment; where the original judgment is basically sound
but is modified on remand, post-judgment interest accrues from the date of the
first judgment.”). See also Sec. Life Ins. Co. of Am. v. St. Paul Fire & Marine
Ins. Co., 278 Ga. 800, 803 (606 SE2d 855) (2004) (holding that the trial court
was correct in computing post-judgment interest on the damages award from
the date of entry of the original judgment because “the modified judgment is
based on the same jury verdict and for the same damages as the judgment
which was originally entered”); Johansen v. Combustion Eng’g, Inc., 170 F3d
1320, 1339-1340 (11th Cir. 1999) (“Where the initial judgment is supported by
the evidence and the later judgment merely reflects a remittitur of a certain
portion of that judgment as excessive, the courts of appeals have routinely
decided that damages were sufficiently ‘ascertained’ at the time of the first
judgment and that post-judgment interest should run from the date of the
original judgment.”).
119
decision to make a judgment nunc pro tunc to the time of a jury’s
verdict in a case very similar to this one. In Wingate Land &
Development, LLC v. Robert C. Walker, Inc., 252 Ga. App. 818 (558
SE2d 13) (2001), the jury returned a verdict for the plaintiff as to his
claims for compensation on April 2, 1999. Id. at 820, 823 n.9. The
trial court then held a bench trial on the plaintiff’s claim for attorney
fees and decided that issue on March 15, 2000. Id. at 823. The court
entered its final order deciding all issues in the case on March 15,
but entered the portion of the judgment related to the jury’s verdict
nunc pro tunc “to give effect to the jury’s verdict on the date the
verdict was rendered.” Id. The Court of Appeals affirmed the trial
court’s order. Id.
Devereux argues that we should not be guided by Wingate
because the attorney-fee issue is not fully bifurcated here (as it was
in Wingate), and the jury in this case decided the initial question of
whether Devereux was liable for attorney fees. We are not
persuaded that this distinction makes a difference here. In both
cases, the damages had been fully and finally decided by the jury
120
even when the decision on the attorney fee amount remained
outstanding. Like the Court of Appeals in Wingate, we conclude that
the trial court was authorized to enter the jury verdicts nunc pro
tunc and apply post-judgment interest to them in this situation. 65
For these reasons, we conclude that the trial court did not err
by applying post-judgment interest to the compensatory and
punitive damage amounts under OCGA § 7-4-12, and we affirm that
65 Devereux argues that instead of Wingate, we should follow
Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 459 (585
SE2d 643) (2003), and St. Paul Reinsurance Co. v. Ross, 276 Ga. App. 135, 142
(622 SE2d 374) (2005), in which the Court of Appeals held that the trial court’s
application of post-judgment interest nunc pro tunc was improper. We
disagree. Schoenbaum did not address completed jury verdicts but instead
addressed the trial court’s grant of partial summary judgment on one count in
a 20-count complaint. 262 Ga. App. at 458-459. There, the Court of Appeals
concluded that the trial court erred by ordering post-judgment interest to be
paid on the amount awarded in the partial summary judgment, reasoning that
“[p]ost-judgment interest accrues only after the entry of final judgment.” Id.
at 459-460. But in support of this assertion, the Court of Appeals cited only a
case holding that the trial court erred by awarding post-judgment interest on
the special master’s award “prior to the jury verdict and entry of a final
judgment,” see City of Atlanta v. Wright, 159 Ga. App. 809, 809-810 (285 SE2d
250) (1981). And in Ross, the first order, which the Court of Appeals held the
trial court should not apply post-judgment interest to, “did not spell out the
dollar amount that was subject to garnishment.” 276 Ga. App. at 137. We do
not view either of these cases as supporting the notion that the trial court here
could not enter nunc pro tunc and apply post-judgment interest to judgments
for damages that had been fully decided by a jury for a specific sum.
121
order. 66
Judgments affirmed in Case Nos. S22A1060 and S22X1061.
All the Justices concur, except Colvin, J., who concurs specially as to
Division III, and Ellington, J., who dissents as to Division III and
concurs specially as to Division VIII. Peterson, P.J., disqualified.
66 To the extent Devereux argues that the imposition of post-judgment
interest “violates basic principles of equity” because Devereux was not to blame
for several of the delays between the jury’s verdicts and the court’s ruling on
the attorney fees amount, we note that OCGA § 9-11-67 provides a way for a
party to abate the accrual of interest. See also JTH Tax, Inc. v. Flowers, 311
Ga. App. 495, 495-496 (716 SE2d 559) (2011) (discussing the party’s depositing
into the court registry the amount awarded for one of the claims, thereby
abating the accrual of interest on that amount). We also note that Devereux
presented no evidence that it petitioned the trial court to resolve the attorney-
fee issue earlier.
122
BETHEL, Justice, concurring.
In Division (III) (D) (ii) (d), the Court considers cases from
sister states that were decided prior to 1798. Because the Court does
not apply any rule articulated in these cases and I otherwise agree
with the analysis and conclusions reached, I join the opinion of the
Court fully. I write separately for the sole purpose of expressing my
view on the limited value of such cases to our consideration of the
common law that was incorporated into our Constitution.
In my view, such cases have value only to the extent they
contain meaningful and persuasive analysis of the state of the
common law as it existed in England in 1776 or in Georgia prior to
1798. Such analysis would serve as persuasive authority. Here,
however, as noted in footnote 41 by the Court, none of these cases
rely on pre-1776 English decisions applying the common law of
England nor do they include any express indication of their effort to
make such an analysis. Likewise, they do not rely on nor provide a
meaningful analysis of any Georgia authority. Thus, these cases
have no persuasive value when analyzing the common law that was
123
incorporated into our State’s Constitution. Accordingly, I see no
reason to give them further consideration, and I view the Court’s
efforts to analyze, characterize, and distinguish those cases as
unnecessary.
I am authorized to state that Justice LaGrua joins in this
concurrence.
124
COLVIN, Justice, concurring specially.
Division III of the majority opinion addresses Taylor’s
argument that the portion of OCGA § 51-12-5.1 (g) establishing a
$250,000 cap on punitive-damages awards violates the Georgia
Constitution’s right to trial by jury. The majority opinion resolves
this issue by applying our reasoning in Atlanta Oculoplastic
Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (691 SE2d 218) (2010),
where we determined that a statutory cap on compensatory damages
violated the constitutional right to a jury trial. But Nestlehutt
expressly stated that its reasoning did not apply in the context of
punitive damages, see Nestlehutt, 286 Ga. at 736 (2) (b), and, in my
view, extending Nestlehutt is unnecessary in this case. The
challenge to the punitive-damages cap at issue here is easily
resolved under Teasley v. Mathis, 243 Ga. 561 (255 SE2d 57) (1979),
and State v. Moseley, 263 Ga. 680 (436 SE2d 632) (1993), where we
rejected claims that the constitutional right to a jury trial prevented
the legislature from establishing statutory limits on punitive
damages. Because neither party asks us to overrule Teasley or
125
Moseley, and because I am unsure whether Nestlehutt was correctly
decided, I would reject the challenge to the punitive-damages cap at
issue here under Teasley and Moseley rather than extending
Nestlehutt to do so.67 Accordingly, I concur only in the result of
Division III.
In Teasley, a plaintiff, who sought exemplary damages for
negligence arising from a car accident, challenged Georgia’s “no
fault” automobile insurance statute, which prevented accident
victims from suing for exemplary damages unless they sustained a
“serious injury.” Teasley, 243 Ga. at 561-562. On appeal, we
rejected the plaintiff’s argument that the statute “depriv[ed] him of
his right to a jury trial.” Id. at 564 (2). Because “[t]he legislature . .
. may modify or abrogate common law rights of action, as well as
statutorily created rights,” we explained, “eliminating the right to
sue for exemplary damages where there are no serious injuries is
67I thank the Attorney General of Georgia for his helpful brief as amicus
curiae, which persuasively argued both that this Court should apply the
Teasley/Moseley line of cases and that this Court should reconsider Nestlehutt
in an appropriate case.
126
well within the province of the legislature.” Id. (citations omitted).
We addressed another challenge to a statutory limit on
recovery for punitive damages in Moseley. See Moseley, 263 Ga. at
681 (2). There, the plaintiffs challenged a Georgia statute that
required a trial court to apportion a punitive damages award
between a plaintiff and the State. See id. In an argument that bears
a striking resemblance to Taylor’s argument here, the plaintiffs in
Moseley contended that the statute violated Georgia’s constitutional
right to trial by jury because, “under the common law[,] it was the
function of the jury to determine what amount of punitive damages
must be awarded to a plaintiff to punish or deter a defendant.” Id.Relying on Teasley, we rejected the plaintiffs’ argument, concluding
that the provision of Georgia’s Constitution guaranteeing the right
to a trial by jury “has no such effect” and does not “prohibit[ ] the
General Assembly from abrogating or circumscribing common law
or statutory rights of action.” Id.As Nestlehutt correctly noted, Teasley and Moseley performed
“only [a] cursory analysis [of] the right to jury trial issue, which was
127
summarily resolved in reliance on precedent that did not address
the right to jury trial at all.” Nestlehutt, 286 Ga. at 736 (2) (b).
Nevertheless, even “summarily” decided opinions “with no analysis”
are “binding precedent” until overruled, Olevik v. State, 302 Ga. 228,
244 (2) (c) (iii) (806 SE2d 505) (2017), and there is no question that
our decisions in Teasley and Moseley resolve Taylor’s challenge to
the statutory punitive-damages cap. Both cases concluded that
Georgia’s constitutional right to a jury trial does not prevent the
legislature from “circumscribing” recovery for punitive damages.
Moseley, 263 Ga. at 681 (2). See Teasley, 243 Ga. at 564 (2).
Accordingly, regardless of whether the cause of action at issue here
was recognized at common law, and regardless of whether “it was
the function of the jury [at common law] to determine what amount
of punitive damages must be awarded to a plaintiff,” Moseley, 263
Ga. at 681 (2), Teasley and Moseley permit only one conclusion
here—that OCGA § 51-12-5.1 (g)’s cap on punitive damages does not
violate the constitutional right to a jury trial.
Admittedly, there is a tension between Teasley’s and Moseley’s
128
conclusion that the legislature can limit punitive-damages awards
without infringing upon the constitutional right to a jury trial and
Nestlehutt’s conclusion that the right to a jury trial prevents the
legislature from capping compensatory damages for certain claims.
But Nestlehutt itself addressed this tension, concluding that Teasley
and Moseley “do not support a different result” because “these cases
addressed statutory limits on punitive damages, which, unlike the
measure of actual damages suffered are not really a ‘fact’ ‘tried’ by
the jury.” 68 Nestlehutt, 286 Ga. at 736 (2) (b) (citation and
68 The majority opinion misinterprets this statement in Nestlehutt,
describing it as “dicta,” Maj. Op. at 57 n.32, that did “not limit[ Nestlehutt’s
reasoning] to a specific type of damages,” Maj. Op. at 43 n.23. To the contrary,
Nestlehutt’s statement that punitive-damages determinations are not factual
determinations was not dicta because it was key to explaining why Teasley and
Moseley did not dictate “a different result.” Nestlehutt, 286 Ga. at 736 (2) (b).
See S. Georgia Med. Ctr. v. Washington, 269 Ga. 366, 367, 497 S.E.2d 793, 795
(1998) (“An adjudication on any point within the issues presented by the case
cannot be considered a dictum, and this rule applies as to all pertinent
questions, although only incidentally involved, which are presented and
decided in the regular course of the consideration of the case, and lead up to
the final conclusion, and to any statement in the opinion as to a matter on
which the decision is predicated.” (citation and punctuation omitted)).
Further, in distinguishing Teasley and Moseley on that basis, Nestlehutt
clarified that its analytical framework for determining whether a statutory
limit on damages violated Georgia’s constitutional right to a trial by jury did
not apply to a specific class of damages. Specifically, Nestlehutt stated that its
analytical framework did not apply to statutory limitations on punitive
129
punctuation omitted; emphasis in original). It is clear from this
statement that this Court cannot apply Nestlehutt to the claim at
issue here, which challenges a statutory cap on punitive damages,
without extending Nestlehutt in a way that would conflict with what
the opinion itself expressly stated. It is also clear from this
statement that Teasley and Moseley remain good law.69 Because
Taylor’s challenge to the statutory punitive-damages cap can be
resolved in straightforward fashion under Teasley and Moseley—
which the parties have not asked us to overrule—there is no need to
extend Nestlehutt in this case. 70
damages because punitive-damages determinations are not determinations of
fact to which the right to a jury trial could attach. See Nestlehutt, 286 Ga. at
736 (2) (b) (noting that the United States Supreme Court had held in Cooper
Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424 (121 SCt 1678, 149
LE2d 674) (2001), that, “because [a] punitive damages award does not
constitute [a] finding of fact, potential limitations on [the] size of awards do not
implicate [the] Seventh Amendment jury trial right”). Because Nestlehutt
stated that its reasoning did not apply in the context of punitive damages, the
majority opinion erroneously states that “applying Nestlehutt’s reasoning in
this case does not ‘extend’ Nestlehutt.” Maj. Op. at 43 n.23.
69 As noted above, Nestlehutt made statements critical of Teasley and
Moseley. However, Nestlehutt did not expressly overrule or disapprove of the
holdings of those cases.
70 I find the majority opinion’s explanations for why it cannot look to
Teasley and Moseley to answer the constitutional question Taylor presents
unpersuasive. First, although the majority opinion claims that neither Teasley
130
I am also reluctant to extend Nestlehutt here because it is
unclear whether the case was correctly decided. Nestlehutt reasoned
that the Georgia Constitution “guarantees the right to a jury trial
only with respect to cases as to which there existed a right to jury
trial at common law or by statute at the time of the adoption of the
Georgia Constitution in 1798.” Nestlehutt, 286 Ga. at 733 (2)
(citation and punctuation omitted). Nestlehutt then canvased the
common law and concluded that, at common law, medical-negligence
nor Moseley answers the precise question at issue here, see Maj. Op. at 38-39,
the majority opinion makes the question presented more complicated than it
needs to be. As I explained above, applying the principles announced in
Teasley and Moseley to this case cleanly resolves Taylor’s challenge to the
punitive-damages cap. Second, the majority opinion criticizes Teasley and
Moseley for employing weak reasoning. See Maj. Op. at 39-41. But the fact
that the cases employed weak reasoning does not mean that they reached the
wrong conclusions. Nor does it deprive the cases of their status as binding
precedent. See Olevik, 302 Ga. at 244 (2) (c) (iii). Third, the majority opinion
states that “the summary conclusions contained in Teasley and Moseley . . .
were necessarily rejected by this Court in Nestlehutt, insofar as Teasley and
Moseley failed to recognize the limit the Georgia Constitution may put on the
legislature’s ability to modify causes of action. Maj. Op. at 42. As noted above,
however, Nestlehutt itself concluded that Teasley’s and Moseley’s holdings did
not conflict with the principle that “the Legislature [cannot] abrogate
constitutional rights,” reasoning that Teasley and Moseley addressed
determinations of punitive damages to which the constitutional right to a jury
trial did not apply. Nestlehutt, 286 Ga. at 736 (2) (b) (emphasis omitted). Thus,
disapproving of Teasley and Moseley “[t]o th[at] extent” does not explain why
this Court should not apply those cases here. Maj. Op. at 42-43.
131
claims were well established, juries were tasked with determining
the amount of damages, and damages could be awarded for
noneconomic damages. See id. at 733-735 (2) (a). Based on these
determinations, Nestlehutt concluded that Georgia’s constitutional
right to a trial by jury guaranteed the right to a jury trial for
medical-negligence claims, “with an attendant right to the award of
the full measure of damages, including noneconomic damages, as
determined by the jury.” Id. at 735 (2) (a). Nestlehutt further
reasoned that the statute “requiring the court to reduce a
noneconomic damages award determined by a jury that exceeds the
statutory limit” of $350,000 “clearly nullifie[d] the jury’s findings of
fact regarding damages” and therefore “infringe[d] on a party’s
constitutional right . . . to a jury determination as to noneconomic
damages.” Id. at 735-736 (2) (b).
While Nestlehutt’s conclusion may be correct, it appears
inconsistent with the traditional understanding of the constitutional
right to trial by jury. See Elliott v. State, 305 Ga. 179, 212 (IV) (B)
(824 SE2d 265) (2019) (“[W]here the right enshrined in the
132
constitution was one found at common law, that constitutional right
is understood with reference to the common law, absent some clear
textual indication to the contrary.”). At common law, the right to a
trial by jury functioned primarily as a procedural safeguard,
limiting the potential for a corrupt or biased judge to work injustice
on a party by dividing authority between judge and jury. See 3
William Blackstone, Commentaries **379-380 (“[I]f [the
administration of justice] be entirely entrusted to the magistracy, a
select body of men, and those generally selected by the prince or such
as enjoy the highest offices in the state, their decisions, in spite of
their own natural integrity, will have frequently an involuntary
bais[ ] towards those of their own rank and dignity . . . . [I]n settling
and adjusting a question of fact, when [e]ntrusted to any single
magistrate, partiality and injustice have an ample field to range in
. . . . [T]herefore a competent number of sensible and upright
jurymen chosen by lot from among those of the middle rank, will be
found the best investigators of truth, and the surest guardians of
133
public justice.”).71 See also Austin Wakeman Scott, Trial by Jury
and the Reform of Civil Procedure, 31 Harv. L. Rev. 669, 676-677
(1918) (“At the time when the first permanent settlements were
being established in America there was a great deal of popular
enthusiasm in England for trial by jury . . . . based chiefly on the
value of the institution as a bulwark of liberty, as a means of
preventing oppression by the Crown. . . . In the American colonies
during the eighteenth century there was a gradually increasing
popular enthusiasm for trial by jury and a popular desire strictly to
limit the powers of the judges and to give the jury great latitude[
because t]he Crown judges were generally and increasingly
unpopular.”). Judges were entrusted to make legal determinations
based on general principles of law. See 3 William Blackstone,
Commentaries *380 (“It is wisely . . . ordered, that the principles and
axioms of law, which are general propositions, flowing from
71See Nestlehutt, 286 Ga. at 733 (2) (noting that “Blackstone, whose
commentaries constituted the law of this State, before and since the
Revolution,’ [are] authoritative on [the] jury trial right as of 1798” (citation and
punctuation omitted)).
134
abstracted reason, and not accommodated to times or to men, should
be deposited in the breasts of the judges . . . .”). But answering
factual questions was a task left for the jury. See 3 William
Blackstone, Commentaries *366 (noting that “jurors . . . are the
judges of fact” and “are impaneled and sworn to try” the “facts”). See
also Scott, Trial by Jury and the Reform of Civil Procedure, supra at
677 (“It may safely be said that at the time of the American
Revolution the general principle was well established in the English
law that juries must answer to questions of fact and judges to
questions of law.” (citation and punctuation omitted)).
Against this backdrop, it is clear from the text of Georgia’s
constitutional provision protecting the right to trial by jury that the
constitutional right, as applied to a civil case, includes a procedural
right to have a jury, rather than a judge, decide questions of fact.
Indeed, the text of that constitutional provision emphasizes this
point, explaining that, in contrast with a jury in a civil case, a jury
in a criminal case decides both the facts and the law:
The right to trial by jury shall remain inviolate, except
135
that the court shall render judgment without the verdict
of a jury in all civil cases where no issuable defense is filed
and where a jury is not demanded in writing by either
party. In criminal cases, the defendant shall have a
public and speedy trial by an impartial jury; and the jury
shall be the judges of the law and the facts.
Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a) (emphasis supplied).
Nestlehutt correctly recognized that “the amount of damages
sustained by a plaintiff is ordinarily an issue of fact” and that the
right to a jury trial has therefore been understood as “includ[ing] the
right to have a jury determine the amount of damages, if any,
awarded to the plaintiff.” Nestlehutt, 286 Ga. at 734 (2) (a) (citation
and punctuation omitted; emphasis in original). But it does not
follow from the existence of a procedural right to have a jury, rather
than a judge, make factual findings about damages that, as
Nestlehutt concluded, the right to a jury trial also guarantees a
substantive “right to the award of the full measure of damages . . .
as determined by the jury.” Id. at 735 (2) (a) (emphasis supplied).
Because reducing a damages award as prescribed by law does not
require a judge to act as a factfinder or substitute his judgment for
136
that of the jury, doing so does not appear to “infringe” on or
“nullif[y]” the procedural right to have a jury make factual findings
regarding damages. Id. at 735 (2) (b). Thus, in concluding that a
court violates the right to a jury trial by reducing damages in
accordance with a statutory cap, Nestlehutt appeared to recognize a
novel substantive component of the right—a substantive right to a
particular remedy that limits a legislature’s ability to define the
legal principles applicable to a cause of action. 72
We should take a careful look at Nestlehutt in an appropriate
case. In this case, however, we need not reconsider Nestlehutt or
extend it. Instead, I would resolve Taylor’s challenge to the
statutory punitive-damages cap under Teasley and Moseley.
Because those cases dispose of Taylor’s challenge, I concur only in
the result of Division III.
72 As the Attorney General notes in his brief as amicus curiae, “[i]f taken
to its logical conclusion,” Nestlehutt’s view of the right to a jury trial as
including a “substantive component” would have “drastic” implications,
“freez[ing] any limits on liability as they existed in 1798,” preventing the
legislature from “eliminat[ing] or restrict[ing] archaic causes of action,” and
“invalidat[ing] scores of statutes or common-law doctrines that modified
common law causes of action.”
137
ELLINGTON, Justice, dissenting in part, concurring in the
judgment only in part.
1. I agree with much that is said in Division III of the majority
opinion, but disagree with the majority opinion’s ultimate
conclusion that OCGA § 51-12-5.1 (g), which required the trial court
to reduce the jury’s award of punitive damages in this case to
$250,000, does not violate the right to trial by jury protected by
Article I, Section I, Paragraph XI (a) of the Georgia Constitution of
1983. Accordingly, I respectfully dissent in Division III of the
majority opinion.
(a) If this issue of whether the General Assembly can
circumscribe a jury’s determination of damages must be decided
based on the scope of the constitutional right to a jury trial as it
existed when Georgia first protected the right, according to our
holding in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga.
731 (691 SE2d 218) (2010), 73 we must be guided by foundational
73 I accept that departing from the analytical framework set out in
Nestlehutt would require a stare decisis analysis. I am not persuaded by
Nestlehutt, the authority the majority cites, and cases that have followed
138
documents and first principles. Initially, I take issue with the
majority opinion’s use of 1798 as the “key date” for our constitutional
analysis in this case. The majority opinion cites to this Court’s
analysis in Benton v. Georgia Marble Co., 258 Ga. 58 (365 SE2d 413)
(1988), that “[i]t has been held that the Georgia Constitution (Art. I,
Sec. I, Par. XI) guarantees the right to a jury trial only with respect
Nestlehutt, however, that developments in Georgia law between the late
eighteenth century and 1987, when the General Assembly imposed caps on
punitive damages, must be deemed irrelevant here. The people of Georgia
adopted a constitution in 1983 affirming that the right to trial by jury shall
remain inviolate. Certainly, at that time, the common understanding was that
a Georgia jury could determine the amount of punitive damages warranted in
a tort case in which there were aggravating circumstances. Juries had been
doing so for decades, and large awards drew much public attention. The
understanding of the availability of jury-determined punitive damages at the
time our most recent constitution was adopted should have at least some
bearing on our analysis of the scope of the constitutional right to trial by jury.
See De Lamar v. Dollar, 128 Ga. 57, 64 (57 SE 85) (1907) (“The validity of the
county court act of 1872 in so far as it deprives parties to a case involving $50
or less, of a trial by jury, depends upon whether it violated that provision of
the Constitution of 1868 [the constitution in effect when the statute was
adopted] which declared that trial by jury should remain inviolate. At the time
the Constitution of 1868 took effect, in every court having jurisdiction to try a
common-law case of a civil nature, the parties were secured the right of trial by
jury,” either in the first instance on demand or on appeal. “This was the
character of trial by jury that the Constitution [of 1868] intended to preserve.”
(emphasis supplied); see also Kemp v. Gonzalez, 310 Ga. 104, 108 (849 SE2d
667) (2020) (constitutional language that has received consistent and definitive
construction and is then readopted into a new constitution is presumed to carry
the same meaning as that prior construction); Elliott v. State, 305 Ga. 179, 184-
187 (II) (B) (824 SE2d 265) (2019) (same).
139
to cases as to which there existed a right to jury trial at common law
or by statute at the time of the adoption of the Georgia Constitution
in 1798.” In Nestlehutt, this Court judged it to be “well established”
that Georgia’s constitution guarantees the right to a jury trial only
with respect to cases as to which the right was protected in 1798.
Nestlehutt, 286 Ga. at 733 (2). And here the majority opinion insists
that the “1798 cutoff” for analysis of the right to trial by jury is “well-
settled” and “significant.” Slip Op. at 31.
As Tift v. Griffin, 5 Ga. 185 (1848), another case cited by
Nestlehutt, makes clear, however, 1798 was the key date in Tift only
because, when Tift was decided, the 1798 constitution, Georgia’s
third constitution, was the most recently adopted.74 The Court
specifically referenced that all three constitutions adopted in
Georgia by that time had affirmed the right to trial by jury. In Tift,
this Court gave a “brief history of the right of trial by jury,” including
the following:
74The same goes for another 1848 case cited in the majority opinion, New
Flint River Steamboat Co. v. Foster, 5 Ga. 194, 207-208 (1848). See Slip Op. at
29.
140
The right [of trial by jury] came with the colonists. It was
derived from Magna Charta. It was their birth right. They
brought with them the Common Law, so far as it was
applicable to their condition. . . . In the year 1770, the
Provincial Assembly [of the British colony of Georgia]
asserted their right to the privileges of the Common Law,
and more especially to the “great and inestimable
privilege of being tried by their peers of the vicinage,
according to the cause of the Common Law.” This was
done by solemn resolution of the Assembly, and was
declaratory of rights which then, and prior to that time,
belonged to the Colony. When the State became
independent of the British Crown, this right of being tried
by their peers, appertained to the people. It was one of the
great bases of the new civil polity. . . . The Constitution of
the United States affirmed the right in criminal cases
originally, and by an amendment, in civil cases in 1789.
Our Constitutions of 1777, of 1789, of 1798, adopt and
141
affirm the right. The last, in the language before quoted,
which is now the organic law of the State.
Tift, 5 Ga. at 188-189.75 This Court’s subsequent treatment of 1798
as the key date for analysis of the right to trial by jury, no matter
how many times repeated, 76 does not change the historical fact that
the people of Georgia adopted constitutions in 1777 and 1789
75 See De Lamar, 128 Ga. at 59-61 (The declaration in Georgia
constitutions, including the constitutions of 1777, 1789, and 1798, that trial by
jury “shall remain inviolate” meant that trial by jury “must be preserved in the
future in all cases in which it was allowed under valid laws existing at the time
that the Constitution was adopted.” Regarding “common-law jurisdiction in
civil cases,” an expression “intended to embrace only cases which were the
subject of real, personal, or mixed actions, according to the practice of the
English common-law courts,” and not those proceedings only authorized under
Georgia statutes, this Court “found no court in existence prior to the
Constitution of 1777, which had such jurisdiction “in which trial by jury was
not provided for.”).
76 See also Swails v. State, 263 Ga. 276, 278 (3) (431 SE2d 101) (1993)
(following Foster in identifying 1798 as the key date for an analysis of the right
to trial by jury); Hudson v. Abercrombie, 258 Ga. 729, 730 (2) (a) (374 SE2d 83)
(1988) (following Foster and Williams in identifying 1798 as the key date for
an analysis of the right to trial by jury); Cawthon v. Douglas County, 248 Ga.
760, 762 (1) (286 SE2d 30) (1982) (following Williams in identifying 1798 as
the key date for an analysis of the right to trial by jury); Williams v. Overstreet,
230 Ga. 112, 116 (195 SE2d 906) (1973) (following Foster in identifying 1798
as the key date for an analysis of the right to trial by jury); Foster, 5 Ga. at
207-208 (identifying, without citation or analysis, 1798 as the key date for an
analysis of the right to trial by jury).
142
enshrining the right, as correctly recited in Tift. To be clear, the
correct date from which to measure the constitutional right to trial
by jury in Georgia under the Nestlehutt framework should be the
date when the people of Georgia first enshrined the right in a
constitution: February 5, 1777. Although, as the majority opinion
states, “no one has asked us to overrule our precedents setting the
key date at 1798,” Slip Op. at 31 n.20, I find it indefensible to
perpetuate here our historical error, which was picked up in Benton
and so greatly expanded in Nestlehutt. 77
77 I do not agree that correcting our identification of Georgia’s first
constitution requires consideration of the doctrine of stare decisis. None of the
cases relied upon in the majority opinion for identifying 1798, as opposed to
1777, as the key date for an analysis of the right to trial by jury took into
account any difference in the common understanding of the right in 1798
compared to the understanding in 1777. See Nestlehutt, 286 Ga. at 731; Benton,
258 Ga. at 66; Williams, 230 Ga. at 116. The specific question of whether 1798,
as opposed to 1777, is the key date for an analysis of the right to trial by jury
was not raised and decided in those cases. See Schoicket v. State, 312 Ga. 825,
832 (865 SE2d 170) (2021) (“[A] decision’s holding is limited to the factual
context of the case being decided and the issues that context necessarily
raises.” (citation omitted)). Even assuming that identifying 1798 as the key
date constituted a holding in those cases, and assuming that consideration of
the doctrine of stare decisis would be necessary to stop identifying 1798 as the
key date for the analysis of the right to trial by jury, that holding is so plainly
wrong it could not survive application of the doctrine. See Ammons v. State,
315 Ga. 149, 156 (2) (880 SE2d 544) (2022) (“The soundness of a precedent’s
reasoning is the most important factor” in reconsidering prior decisions.
143
(b) In the preamble to Georgia’s Constitution of 1777, the
General Assembly explained that, even before the execution of the
Declaration of Independence by the General Congress meeting in
Philadelphia, which dissolved all political connection between the
colonies and the Crown of England, the General Congress
recommended to any of the “respective assemblies and conventions
of the United States” that had not yet established a government “to
adopt such government, as may, in the opinion of the
representatives of the people, best conduce to the happiness and
safety of their constituents in particular, and America in general.”
Georgia’s representatives heeded this advice. On February 5, 1777,
the representatives of the people of Georgia “ordained and declared,
that the following rules and regulations be adopted for the future
government of the State.” Paragraph LXI of that first constitution
provided that “trial by jury” was “to remain inviolate for ever [sic].”
That first constitution also had several specific provisions
(citation omitted)).
144
regarding jury trials. Paragraph XL provided, in pertinent part,
[a]ll causes of what nature soever, shall be tried in the
supreme court, except as hereafter mentioned[.] . . . [I]f
any plaintiff or defendant in civil causes shall be
dissatisfied with the determination of the jury, then and
in that case they shall be at liberty within three days to
enter an appeal from that verdict, and demand a new trial
by a special jury
chosen in the manner specified in that paragraph.78 Paragraph XLI
provided that
[t]he jury shall be judges of law as well as of fact, and shall
not be allowed to bring in a special verdict; but if all, or
any, of the jury have any doubts concerning points of law,
they shall apply to the bench, who shall each of them in
78 Exceptions to the general rules appeared in Paragraph XLIV, for
“[c]aptures, both by sea and land,” and in Paragraph XLVI, which provided for
the continuation of “courts of conscience” that had jurisdiction to try causes not
amounting to more than ten pounds.
145
rotation give their opinion.
And Paragraph XLII provided that “[t]he jury shall be sworn to
bring in a verdict according to law, and the opinion they entertain of
the evidence; provided it be not repugnant to the rules and
regulations contained in this constitution.” 79
Clearly, at Georgia’s founding as a sovereign state, the people
felt strongly about the government’s duty to provide trial by jury for
almost any legal dispute. The jury’s determination was subject to
review, not by trial or appellate judges, but only by a second jury.
See Paragraph XL. 80 Under the plain terms of these expansive
provisions, a jury was empowered to decide whether a plaintiff had
proved a right to recover and what total damages the defendant
79 See also Paragraph XXXVII (providing for venue in “[a]ll causes and
matters of dispute between any parties residing in the same county”);
Paragraph XXXVIII (providing for venue in “[a]ll matters in dispute between
contending parties residing in different counties”).
80 See Christopher J. McFadden et al., Georgia Appellate Practice § 1:1
(Dec. 2022 update) (discussing the development after 1777 of judicial appellate
review in Georgia).
146
should pay. In 1784, Georgia formally recognized the continuing
force, as part of Georgia’s own law, of the English common law as of
May 14, 1776. See OCGA § 1-1-10 (c) (1) (providing that the 1784 act
that adopted “the common laws of England as they existed on May
14, 1776,” was not repealed by the 1981 Code of Georgia). 81
(c) Cases discussed in the majority opinion show that England’s
81 The 1784 act “for reviving and enforcing certain laws therein
mentioned” was necessitated by the disruptions of the war years (“the late
convulsions in this State”), in which “several salutary laws were lost, and
destroyed, that had from time to time been enacted by the general assembly”
of Georgia. Robert Watkins et al., Digest of the Laws of Georgia, preface by the
editor, p. 289 (1799) (Act No. 287, February 25, 1784). The act provided: “all
and singular the several acts, clauses, and parts of acts that were in force, and
binding on the inhabitants of the . . . province” of Georgia on May 14, 1776,
so far as they are not contrary to the constitution, laws and
form of government now established in this State, shall be, and are
hereby declared to be in full force, virtue and effect, and binding
on the inhabitants of this State . . . until the same shall be
repealed, amended or otherwise altered by the legislature. And
also the common laws of England, and such of the statute laws as
were usually in force in the said province, except as before
excepted.
Id. at 290. See Tift, 5 Ga. at 189 (Even without a legislative declaration
of the right of being tried by one’s peers, “it must have been considered
inherent in that system of Government, which the State adopted. But in [17]84,
our own Legislature adopted the Common Law of England, and such of the
Statute Laws of England as were usually of force in the province of Georgia,
except so far as they were contrary to the constitution and laws and form of
Government then established. By this Act, if there were no other recognition
of it, the right of trial by jury was asserted, as guaranteed by Magna Charta.
Nor was it alone the right of trial by jury in criminal cases, but also in civil
cases for that Charter provides for both.”).
147
common law as of May 14, 1776, recognized the jury’s broad
authority to find aggravating circumstances in tort cases and to
award, in addition to damages awarded to compensate plaintiffs for
their injuries, additional damages to punish defendants and deter
them from repeating tortious conduct. Therefore, I generally agree
with the majority opinion’s holdings within the Nestlehutt
framework regarding pre-1776 common law juries: juries awarded
damages in tort for what would later be called premises liability
claims; juries generally determined the amount of damages to award
in tort cases; juries in tort cases were authorized to award damages
in excess of the actual injury suffered by a plaintiff based on
aggravating circumstances; and juries were authorized to award, in
addition to damages to compensate the plaintiff for the actual injury,
damages specifically for the purpose of punishing the defendant.
From these holdings, and given the breadth of a jury’s authority
under Georgia’s first constitution, the conclusion is inescapable that
the right to trial by jury deemed inviolable in the Constitution of
1777 embraced the right to have a jury determine whether to award
148
additional damages based on aggravating circumstances in a
tortfeasor’s acts or intentions and, if so, to determine the amount of
punitive damages to award. In other words, the right to have a jury
determine whether punitive damages are warranted and, if so, in
what amount, inheres in a common law cause of action for premises
liability, and, therefore, the General Assembly may not modify or
abrogate that right by statute. See Pollard v. State, 148 Ga. 447, (96
SE 997 (1918) (The constitutional provision that the right of trial by
jury shall remain inviolate “did not merely preserve the form or
mode of trial, but the right of trial by jury in all its essential
elements as it existed at common law and as it obtained in this state
at the date of the adoption of our earliest Constitution.”).
The majority opinion goes to great lengths to escape this
conclusion and to decide the constitutionality of OCGA § 51-12-5.1
(g) in the narrowest possible terms. I disagree with the majority
opinion’s conclusion that Taylor loses her constitutional right to
have a jury determine all of her damages solely because she does not
argue that Devereux engaged in intentional misconduct but,
149
instead, pleads for punitive damages on the basis that Devereux’s
conduct “was such as to evince an entire want of care and
indifference to the consequences of such conduct.” The majority
opinion frames all six pre-1776 English cases that Taylor points to
as primary sources for jury-determined punishment damages as
cases involving “a claim of intentional misconduct.” The majority
opinion holds that Taylor has therefore failed to show that punitive
damages for a claim that a tortfeasor acted with an “entire want of
care” was within the scope of the jury-trial right in Georgia in 1798.
Notably, none of those cases describe the tortious conduct as
“intentional” or address in any way the defendants’ mental state.
More importantly, the “intentional misconduct” framing in the
majority opinion distorts the facts underlying the three warrant-
execution cases to exclude cases based on an entire want of care from
the scope of the right to have a jury determine the amount of
punitive damages. Unlike the cases involving physical attacks or
malicious prosecution, the warrant-execution cases involved conduct
that the defendants understood to be legally sanctioned, even
150
required of them as agents of the government acting at the direction
of their superiors. Specifically, the case reports show that the
defendants entered the plaintiffs’ residences and otherwise
infringed on the plaintiffs’ liberty in search of evidence of seditious
libel because warrants issued in the name of the King by Lord
Halifax, a secretary of state, commanded the “King’s messengers” to
do so. See Wilkes v. Wood, 98 Eng. Rep. 489 (King’s Bench, 1763)
(North Briton, No. 45); Huckle v. Money, 95 Eng. Rep. 768 (King’s
Bench, 1763) (North Briton, No. 45); Beardmore v. Carrington et al.,
95 Eng. Rep. 790 (King’s Bench, 1764) (The Monitor or British
Freeholder). The defendants in these cases were either the King’s
messengers or, in Wood’s case, sent by Lord Halifax to supervise
messengers in the execution of a warrant. The defendants’ conduct
constituted trespass (along with false imprisonment in Huckle and
Beardmore, in which the plaintiffs were detained) only because the
warrants the defendants executed were determined to have been
151
issued illegally. 82 In Beardmore, the Court acknowledged the
82 In this case, we are concerned with the scope of the right to trial by
jury and, within the Nestlehutt framework, whether pre-1776 English juries
awarded punitive damages only in cases involving intentional misconduct, as
the majority opinion concludes. Consequently, it is not necessary to discuss in
detail the development, and ultimate scope, of the rejection of the use of
general warrants, although these and related cases are studied in detail by
scholars of the development of the Fourth Amendment to the United States
Constitution and related state protections against unreasonable searches and
seizures and warrant requirements. To oversimplify, dozens of people were
arrested and subjected to search as a result of general warrants that Lord
Halifax issued in 1762 and 1763. Litigation over the execution of the warrants
continued until 1769. In the course of dozens of cases, multiple reasons were
advanced, considered, and rejected or accepted in various combinations for
holding the warrants to be illegal or for finding that the manner in which the
warrants were executed to constitute trespass, including: the warrants did not
identify the persons to be seized; the warrants directed that all of an arrested
suspect’s papers be seized, rather than those relevant to the alleged seditious
libel; taking a person’s papers to prove libel violated the rights against
compelled self-incrimination; the “precedents” or custom Lord Halifax relied
on as the authority for issuing such warrants was contrary to common law;
Lord Halifax acted only as a secretary of state (and only justices of the peace
were designated by statute were authorized to issue arrest warrants for the
alleged crimes); Lord Halifax did not issue the warrants based on evidence
given under oath by a witness; evidence received before issuance of the
warrants did not provide probable cause to arrest; the warrants required the
messengers arresting a suspected author, publisher, or printer to be
accompanied by a constable, but no constable attended them; and no inventory
of seized material was returned. By about 1765 or 1766, enough of the cases
had been resolved in the plaintiffs’ favor, and covered in the press, that it
should have been widely known that general warrants were illegal, but that
was hardly well-settled law when warrants were executed in 1762 and 1763 to
arrest authors, printers, or publishers of The Monitor or The North Briton, No.
45. See Wilkes v. Wood, 98 Eng. Rep. 489; Huckle, 95 Eng. Rep. 768; see also
Entick v. Carrington, 95 Eng. Rep. 807, 810 (King’s Bench, 1765) (At various
times over the preceding 80 years, general warrants like that issued against
the plaintiff “have been frequently granted by the Secretaries of State, and
152
argument that Lord Halifax was “more culpable, than the
defendants, who [were] only servants, and [had] done what he
commanded them to do.” Beardmore, 95 Eng. Rep. at 793.
Nevertheless, “[t]he jury were directed [by the trial court] to assess
damages for the plaintiff according to the evidence given, under an
idea that the defendants could not by law justify the trespass under
[the] warrant by any manner of plea whatsoever.” Id. at 792. Thus,
the defendants were liable for the full amount of the plaintiff’s
damages because liability for the trespass was “joint and several” as
a matter of law. 83 Id. at 793. From the defendants’ points of view in
executed by the messengers in ordinary,” under their oath to “be a true servant
to the King[.]”); Id. at 812-813 (The plaintiff conceded that “never before [the]
time” of the trial had general warrants granted by secretaries of state “been
opposed or controverted[.]”); Money v. Leach, 96 Eng. Rep. 320, 97 Eng. Rep.
1050, 1745 (King’s Bench, 1765); Thomas K. Clancy, “The Fourth Amendment’s
Concept of Reasonableness,” 2004 Utah L. Rev. 977, 984-987 (2004); T.T.
Arvind, et al., “A New Report of Entick v. Carrington (1765), 110 Ky. L.J. 265,
298-332 (2022) (containing Entick v. Carrington, as reported by Edward
Moore); Thomas Y. Davies, “Recovering the Original Fourth Amendment,” 98
Mich. L. Rev. 547, 560-570 (1999).
83 The majority opinion misrepresents the Beardmore case in saying that
the Court “described the defendant’s actions as ‘an unlawful power assumed by
a great minister by State[.]’” Slip Op. at 53, 65. The Court was actually
describing the actions of Lord Halifax who issued the illegal warrant to be
served by the defendants, the King’s messengers.
153
all three of the warrant-execution cases, however, they had legal
authority and justification to enter the plaintiffs’ homes and seize
evidence, so their conduct cannot fairly be classified as intentional
misconduct in the same vein as punching a person in the face or
falsely accusing a person of a crime. Rather, the defendants in the
warrant-execution cases at most acted without care in failing to
refuse Lord Halifax’s directive to execute the warrants. Although
none of the cases Taylor cited expressly recognize the culpability
category of an “entire want of care” in those words, the warrant-
execution cases show that pre-1776 English juries could and did
award punishment damages even absent intentional misconduct.
The majority opinion overreaches in holding that all six of the pre-
1776 English cases Taylor cited involved “intentional misconduct”
when fully half of them did not involve any intentional violation of
the plaintiffs’ rights by the defendants.
It is hardly surprising that neither party found any pre-1776
cases either expressly allowing or expressly rejecting the recovery of
additional damages based on a defendant’s “entire want of care.”
154
Before the Tort Reform Act of 1987, Georgia law recognized that in
every tort there may be aggravating circumstances and provided
that, “[i]n a tort action in which there are aggravating
circumstances, in either the act or the intention, the jury may give
additional damages to deter the wrongdoer from repeating the
trespass or as compensation for the wounded feelings of the
plaintiff.” OCGA § 51-12-5 (1986).84 See also Colonial Pipeline Co. v.
Brown, 258 Ga. 115, 122 (5) (365 SE2d 827) (1988) (OCGA § 51-12-
5 “states that in every tort there may be aggravating circumstances,
either in ‘the act or the intention’ in which event additional or
punitive damages may be awarded.); Ga. Code Ann. 1860 § 2998 (“In
every tort there may be aggravating circumstances, either in the act
or the intention, and in that event the jury may give additional
damages, either to deter the wrongdoer from repeating the trespass,
84 Cf. Ga. L. 1987, p. 915, § 4 (“striking in its entirety Code Section 51-
12-5, relating to additional damages for aggravating circumstances, and
inserting in its place a new Code Section 51-12-5 to read as follows: 51-12-5.
(a) In a tort action in which there are aggravating circumstances, in either the
act or the intention, the jury may give additional damages to deter the
wrongdoer from repeating the trespass or as compensation for the wounded
feelings of the plaintiff. (b) This Code section shall apply only to causes of action
for torts arising before July 1, 1987.”).
155
or as compensation for the wounded feelings of the plaintiff.”). And
the law made special provision for compensatory damages for torts
for which the entire injury is to the peace, happiness, or feelings of
the plaintiff and for which the only measure of damages is the
enlightened conscience of impartial jurors. 85 The Tort Reform Act of
1987 replaced the broad descriptive term “aggravating
circumstances, in either the act or the intention” with a list of types
of culpable conduct drawn from Georgia’s decisional law on punitive
damages: “willful misconduct, malice, fraud, wantonness,
oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences.” OCGA § 51-
12-5.1 (b).86 See OCGA § 51-12-5 (b). These types of culpable conduct
85See OCGA § 51-12-6 (1986) (“In some torts the entire injury is to the
peace, happiness, or feelings of the plaintiff; in such cases no measure of
damages can be prescribed, except the enlightened conscience of impartial
jurors. The worldly circumstances of the parties, the amount of bad faith in the
transaction, and all the attendant facts should be weighed. The verdict of a
jury in such case should not be disturbed, unless the court should suspect bias
or prejudice from its excess or its inadequacy.”); Ga. Code Ann. 1860, § 2999
(same, with different punctuation).
86 See Chattanooga, Rome & Columbus R. Co. v. Liddell, 85 Ga. 482, 495-
496 (5) (11 SE 853) (1890) (“[T]he absence of [the] care [that was required to
avoid a railroad accident], whether called gross or ordinary negligence, did not
156
have the common element of being greater than gross negligence.
See Southern R. Co. v. O’Bryan, 119 Ga. 147, 148-149 (1) (45 SE
1000) (1903) (“Mere negligence can never amount to . . . aggravating
circumstances [in a tortfeasor’s act or intention] as to warrant the
imposition of . . . [additional] damages [under a predecessor to
OCGA § 51-12-5], and this is true though the negligence be gross.”);
Chattanooga, Rome & Columbus R. Co. v. Liddell, 85 Ga. 482, 495-
authorize the jury to visit the [company] with damages beyond the limit of
compensation for the injury actually inflicted. To do this there must have been
some willful misconduct, or that entire want of care which would raise the
presumption of a conscious indifference to consequences. . . . In order to
warrant a jury in giving vindictive damages, something more than mere
unlawfulness must be shown; there must be evidence either of malice, fraud,
wantonness, or oppression. The act must have been done under such
circumstances as show a disregard for the rights of others, or an intention to
set at defiance the legal rights of others, or the ordinary obligations of society.”
(citation and punctuation omitted)); see also Ponce de Leon Condominiums v.
DiGirolamo, 238 Ga. 188, 189 (1) (232 SE2d 62) (1977) (“To authorize the
imposition of punitive or exemplary damages, there must be evidence of willful
misconduct, malice, fraud, wantonness, or oppression, or that entire want of
care which would raise the presumption of a conscious indifference to
consequences. The latter expression relates to an intentional disregard of the
rights of another, knowingly or wilfully disregarding such rights.” (citations
and punctuation omitted)); Parsons v. Ponder, 161 Ga. App. 723, 724 (2) (288
SE2d 751) (1982) (“To authorize the imposition of exemplary damages, or
punitive damages as they are commonly called, under Code Ann. § 105-2002[,
the immediate predecessor to OCGA § 51-12-5,] there must be evidence of
wilful misconduct, malice, fraud, wantonness, oppression, or that entire want
of care which would raise the presumption of a conscious indifference to
consequences.” (citation and punctuation omitted)).
157
497 (5) (11 SE 853) (1890) (accord). OCGA § 51-12-5.1 treats all of
these types of culpable conduct equally, capping them unless the
defendant acted with the specific intent to cause harm (or, under the
2010 amendment while the defendant’s judgment was impaired by
alcohol or drugs). OCGA § 51-12.5.1 (f).
As previously discussed, a close reading of the pre-1776
English cases identified by Taylor undercuts the majority opinion’s
holding that juries of that era awarded punitive damages only in
cases involving intentional misconduct. 87 The majority opinion errs
in using this holding to carve out cases involving an entire want of
care from the universe of tort cases in which juries historically could
award punitive damages, thereby avoiding the broader question of
whether the right to a jury trial in Georgia inheres in awards for
punitive damages generally, such that the punitive damages cap in
87See Reid v. Morris, 309 Ga. 230, 235 ((845 SE2d 590) (2020) (explaining
OCGA § 51-12.5.1’s three-tiered structure for punitive damages awards: (1)
cases involving products liability claims, (2) cases involving a specific intent to
harm the plaintiff, and (3) cases involving willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences).
158
OCGA § 51-12-5.1 (g) is unconstitutional. As discussed above,
Georgia constitutionally guaranteed the right to trial by jury at a
time when a jury had the authority to award additional, exemplary
damages for whatever conduct the jury found egregious enough to
warrant such damages. Having a jury determine the amount of
punitive damages, unfettered by legislative acts, was an essential
element of the right to trial by jury as it existed at common law and
as it continued to be protected in Georgia at the date of the adoption
of our earliest Constitution. See Nestlehutt, 286 Ga. at 735 (2) (a);
Pollard v. State, 148 Ga. at 447. Thus, even under the Nestlehutt
framework, the right to a jury trial in Georgia inheres in awards for
punitive damages generally, including for cases involving an entire
want of care. It follows that the General Assembly wrongfully
curtailed the constitutional right to a jury trial by requiring courts
not to enforce a jury’s determination of the amount of punitive
damages warranted for a tortfeasor’s willful misconduct, malice,
fraud, wantonness, oppression, or that entire want of care which
would raise the presumption of conscious indifference to
159
consequences.88
For these reasons, I dissent in Division III.
2. In Division VIII, the majority opinion determines that Taylor
is entitled to 40 percent of the recoverable damages under OCGA §
13-6-11 because she presented, in addition to her contingency-fee
agreement for such recovery, some evidence of the value of the
professional services actually rendered. In doing so, the majority
opinion followed the analysis in Ga. Dept. of Corrections v. Couch,
295 Ga. 469 (759 SE2d 804) (2014), a case that dealt with attorney
fees under OCGA § 9-11-68. The majority opinion states that both
88To the extent Teasley v. Mathis, 243 Ga. 561 (255 SE2d 57) (1979), and
State v. Moseley, 263 Ga. 680 (436 SE2d 632) (1993), hold that the
constitutional right to a jury trial does not prevent the General Assembly from
establishing statutory limits on punitive damages, as advanced in Justice
Colvin’s concurrence, those cases failed to recognize the limits the
constitutional right to trial by jury puts on the scope of the General Assembly’s
authority. See Georgia Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60, 61-62 (2)
(335 SE2d 127) (1985) (“A right of action existing at common law may be
modified or abrogated by” the General Assembly “unless prevented by
constitutional limitations.”); see also Nestlehutt, 286 Ga. at 737 (2) (b)
(agreeing with the general principle stated in Moseley and Teasley that the
General Assembly has authority to modify or abrogate the common law, but
rejecting the idea “that this general authority empowers the [General
Assembly] to abrogate constitutional rights that may inhere in common law
causes of action”).
160
Taylor and Devereux “argue that we should look to the standard set
out” in Couch. But Taylor does not argue that we should look to
Couch. Rather, she assumes that we will, and she argues that she
offered evidence of the value of her attorney’s services sufficient
under the approach of Couch and its progeny to support the trial
court’s award of fees. In the face of extensive Court of Appeals
precedent requiring proof of the reasonable value of fees awarded
under OCGA § 13-6-11,89 this was a reasonable argument to make
in the alternative, and it prevailed in the majority opinion.
The majority opinion’s approach makes it unnecessary to reach
Taylor’s argument that “Devereux’s entire argument is based on a
‘reasonableness’ requirement that does not exist in the plain
language of Code Section 13-6-11.” Thus, the majority opinion does
not consider whether the difference in language between OCGA §
89 See Wimpy v. Martin, 356 Ga. App. 55, 59-60 (3) (a) (846 SE2d 230)
(2020); City of Atlanta v. Hofrichter/Stiakakis, 291 Ga. App. 883, 889-890 (3)
(663 SE2d 379) (2008); Home Depot U.S.A., Inc. v. Tvrdeich, 268 Ga. App. 579,
584-585 (2) (602 SE2d 297) (2004); Patton v. Turnage, 260 Ga. App. 744, 746-
749 (2) (580 SE2d 604) (2003); Rivergate Corp. v. BCCP Enterprises, Inc., 198
Ga. App. 761, 761-762 (2) (403 SE2d 65) (1991).
161
13-6-11, which authorizes the recovery of “[t]he expenses of
litigation,” and statutes that authorize only “reasonable attorney
fees” is legally significant. While the procedural posture of this case
may permit resolution of this appeal without reaching the issue, it
must be emphasized that the majority opinion does not hold that,
despite its plain language, OCGA § 13-6-11 authorizes only
reasonable attorney fees. This case cannot be cited as precedent for
such a holding. If the procedural posture had compelled this Court
to answer the question whether OCGA § 13-6-11 contains a
reasonableness requirement and permits a Couch-type review of the
evidence, I believe the plain text and the historical context of the
statute would demand an answer in the negative.
Georgia follows the “American Rule” of attorney fees: even a
prevailing litigant bears the cost of asserting his legal rights and can
recover the expenses of litigation including his attorney fees from
the opposing party only where authorized by a statutory provision
162
or by the parties’ contract.90 Several of Georgia’s statutes that
authorize an award of expenses of litigation and attorney fees
authorize the trial court to grant only reasonable attorney fees, 91
which has generally required a determination, based on evidence, of
the value of the legal services provided. See Couch, 295 Ga. at 483(3) (a).92 The amount of “reasonable” attorney fees, as determined by
the finder of fact, will not necessarily match the amount of fees the
90 See Ga. Subsequent Injury Trust Fund v. Muscogee Iron Works, 265
Ga. 790, 790-791 (462 SE2d 367) (1995); Glynn County Fed. Employees Credit
Union v. Peagler, 256 Ga. 342, 344 (3) (348 SE2d 628) (1986); Bowers v. Fulton
County, 227 Ga. 814, 815 (1) (183 SE2d 347) (1971); Horton v. Dennis, 325 Ga.
App. 212, 215 (750 SE2d 493 (2013).
91 See, e.g., OCGA §§ 9-11-68 (b) (“reasonable attorney’s fees and
expenses of litigation” incurred during a specified period in the case of certain
offers of settlement rejected by the opposing party in civil litigation); 9-15-14
(“reasonable and necessary attorney’s fees and expenses of litigation” in certain
cases of frivolous litigation); 10-1-164 (“reasonable attorneys’ fees to the
prevailing party” in certain claims of misappropriation of a trade secret); 13-1-
11 (allowing “obligations to pay attorney’s fees upon any note or other evidence
of indebtedness” and requiring that fees greater than $20,000 be reasonable);
51-7-83 (“costs and expenses of litigation and reasonable attorney’s fees” in
certain cases of abusive civil litigation).
92 See also Brock Built, LLC v. Blake, 316 Ga. App. 710, 713-715 (2) (730
SE2d 180) (2012) (remanding for a determination of the value of an attorney’s
services, where employment contract provided for “all costs and expenses
(including court costs and reasonable attorney fees) incurred by [employee] in
connection with any litigation seeking to enforce [his] rights” under the
agreement, provided that he was “substantially successful in such litigation”
(punctuation omitted)).
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litigant would owe under the contract of legal representation, which
may provide for pro bono representation (no fees), a flat rate, an
hourly rate, a contingent fee (usually a percentage of the monetary
recovery for the litigant), or some other arrangement between
attorney and client.
Unlike OCGA § 9-11-68, the Code section at issue in Couch,
and many other statutes that provide for attorney fee awards, OCGA
§ 13-6-11, does not modify the term “the expenses of litigation” with
“reasonable” or any similar term. 93 Likewise, the predecessors to
OCGA § 13-6-11 extending at least back to the 1860 Code of
93 See Ga. Code 1983, OCGA § 13-6-11 (“The expenses of litigation
generally shall not be allowed as a part of the damages; but where the plaintiff
has specially pleaded and has made prayer therefor and where the defendant
has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff
unnecessary trouble and expense, the jury may allow them.”); Ga. Code Ann.
1933, Title XX, Part III, Chapter 20-14, § 20-1404; (“The expenses of litigation
are not generally allowed as a part of the damages; but if the defendant has
acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff
unnecessary trouble and expense, the jury may allow them.”); Ga. Code Ann.
1910, Part II, Title VIII, Chapter VIII, § 4392 (same); Ga. Code Ann. 1895, Part
II, Title VIII, Chapter VIII, § 3796 (same); Ga. Code Ann. 1882, Part II, Title
VII, Chapter X, § 2942 (same); Ga. Code Ann. 1873, Part II, Title VII, Chapter
X, § 2942 (same); Ga. Code Ann. 1867, Part II, Title 7, Chapter X, § 2891
(same); Ga. Code Ann. 1860, Part II, Title 7, Chapter IX, § 2883 (same).
164
Georgia 94 have never modified the term “the expenses of litigation.”
The General Assembly found it proper to provide only for reasonable
attorney fees in OCGA §§ 9-11-68 (b), 9-15-14, 10-1-164, and others,
but brought forward the unrestricted term “the expenses of
litigation” in OCGA § 13-6-11 and its predecessors in each Code
revision since 1860. Thus, a plain reading of the text of OCGA § 13-
6-11 indicates that, the other requirements of the Code section being
met, a jury is authorized under § 13-6-11 to award a litigant’s actual
94 For purposes of this analysis, I am referring to the Code of the State
of Georgia, prepared by R. H. Clark, T. R. R. Cobb, and D. Irwin, as “codifers,”
adopted by the General Assembly and signed into law by the governor on
December 19, 1860, and published by John H. Seals, in Atlanta, Georgia, in
1861. See Ga. L. 1860, p. 24. The Code of 1860 designated that it would be
effective on January 1, 1862. See id. Before the designated effective date,
Georgia seceded from the union, and on March, 18, 1861, “a convention of the
people, then in session” resolved to amend the Code “to conform to the
government of the Confederate States, instead of the government of the United
States[.]” See Ga. Code Ann. 1860, preface by the codifers, p. iv. On December
16, 1861, the General Assembly voted to delay the effective date of the Code to
January 1, 1863, Ga. L. 1861, p. 27, and the original Code is also sometimes
referred to as the Code of 1861 or the Code of 1863. See Jefferson James Davis,
“The Georgia Code of 1863: America’s First Comprehensive Code,” 4 J. S. Legal
Hist. 1 (1995-1996) (referring to the Clark, Cobb, and Irwin Code as the
“Georgia Code of 1863,” due to the delayed effective date); Caldwell v. State,
313 Ga. 640, 650 n.11 (872 SE2d 712) (2022) (McMillian, J., concurring) (same);
Paul S. Milich, “Georgia’s New Evidence Code – An Overview,” 28 Ga. St. U.
L. Rev. 379, 380 (2012).
165
expenses of litigation. 95
95 It would also be worth exploring whether the original predecessor to
OCGA § 13-6-11 was intended to apply to tort claims at all. The codifers were
charged with preparing
for the people of Georgia a Code, which shall as near as
practicable, embrace in a condensed form, the Laws of Georgia,
whether derived from the Common Law, the Constitution of the
State, the Statutes of the State, the Decisions of the Supreme
Court, or the Statutes of England of force in this
State[.] . . . [W]hen ratified and adopted by [the General
Assembly], it may supercede [sic] all other laws and decisions and
establish fixed and uniform law in the State of Georgia.
Ga. L. 1858, p. 95. See Sons of Confederate Veterans v. Henry County Bd.
of Commrs., 315 Ga. 39, 58 n.14 (2) (c) (ii) (880 SE2d 168) (2022) (explaining
differences between current codification practices, which are generally limited
to incorporating acts of the General Assembly, and the practices employed in
Georgia’s early codes).
As the codifers explained, they undertook to draft a code that would
“arrange” the “somewhat chaotic mass” of the statutes of Georgia and in
addition “to interweave” with the statutes “the great fundamental principles
of our jurisprudence from whatsoever source derived” of which the statutes
“constituted but disjointed parts.” Ga. Code Ann. 1860, preface by the codifers,
p. iii. See also id., preface by the committee appointed by the General Assembly
to review the Code drafted by the codifers and to recommend whether to adopt
it, p. vi (The Code was intended to mingle together “in condensed and
intelligible form the common and statute Laws, Constitutional provisions and
Court Decisions, and thus to place the whole body of all the Law within the
reach of the people” and to refer every citizen “to the whole embodiment of the
Law in a single volume to be exactly informed what are his rights in any and
every exigency, and what his remedies for their enforcement and protection.”).
As part of this grand plan of organization and comprehensiveness, the codifers
placed the 1860 predecessor to OCGA § 13-6-11, § 2883, in Part II (The Civil
Code), Title VII (Contracts), Chapter IX (Breach of Contracts and Damages).
In total, that chapter provided thirteen sections, most of which used the words
“breach,” “contract,” or both. In context of the title and chapter in which it was
placed, § 2883 can only be fairly read as providing that “[t]he expenses of
litigation are not generally allowed as a part of the damages” in a suit for
166
breach of a contract, “but if the defendant has acted in bad faith, or has been
stubbornly litigious, or has caused the plaintiff unnecessary trouble and
expense, the jury may allow them.”
In contrast, the Code of 1860, Part II, Title VIII (Torts), Chapter V
(Damages) made no explicit reference to recovery of the expenses of litigation.
Despite its placement in the title covering contracts, the text of the
predecessors to OCGA § 13-6-11, viewed apart from the context of the rest of
the chapter on breach of contracts and damages, did not expressly limit the
Code section to contracts cases, and the section was soon applied in torts cases.
See Tift v. Towns, 63 Ga. 237, 242 (3) (1879) (In a negligence action against a
toll-bridge owner for failure to keep a bridge in proper repair, the jury awarded
the plaintiff damages and “counsel fees,” and the defendant argued that the
award of counsel fees was not warranted by evidence that the defendant “had
acted in bad faith, or had been stubbornly litigious, or had caused the plaintiff
unnecessary trouble and expense” as provided in Irwin’s Revised Code Ann.
1873 § 2942, another predecessor to OCGA § 13-6-11. This Court found the
damages were excessive, in part because the award included counsel fees. The
Court found that the defendant’s resistance to the plaintiff’s “too high” demand
for damages did not amount to “wanton or excessive indulgence in litigation.”);
Selma, Rome & Dalton R. Co. v. Fleming, 48 Ga. 514 (1873) (noting in dicta
that, “[u]nder section 2891, Irwin’s Revised Code [1867],” the successor to Code
Ann. 1860 § 2883, “damages for a tort may be increased by the expenses of
litigation, if the defendant have shown himself specially litigious in the
matter”).
By 1903, applying § 3796 of the Civil Code of 1895, the latest successor
to Code Ann. 1860 § 2883, which was still plainly lodged in Title VIII,
Contracts, Chapter VIII, Breach and Damage, we noted in Traders Ins. Co. v.
Mann, 118 Ga. 381 (45 SE 426) (1903), that attorney fees under the subsection
for bad faith, stubborn litigiousness, or causing unnecessary trouble and
expense had “usually been asked for by the plaintiff in actions ex delicto,” that
is, tort actions, listing numerous cases, including Selma &c. R. Co., which we
identified as “the first case construing this section.” Traders Ins. Co., 118 Ga.
at 384. In Traders Ins. Co., we doubtfully accepted that a few Georgia cases ex
contractu might stand for the principle that “the right to recover expenses of
litigation is not confined to actions sounding in tort,” and held that, if so, “the
same element of bad faith must appear in order to warrant their recovery in
actions ex contractu.” Id. at 385.
At some point, the General Assembly inserted “in making the contract”
after “bad faith,” which would indicate an intent that OCGA § 13-6-11 should
167
It is true that Taylor focuses on her alternative argument and
says this Court “need not reach” the issue of the lack of a textual
basis for Devereux’s reliance on a “reasonableness” requirement for
attorney fee awards under OCGA § 13-6-11, but this does not bind
us to review the trial court’s award as if Couch applies, effectively
rewriting the Code section to include a reasonableness requirement
not present in the text. The General Assembly is perfectly capable
of limiting awards of statutory attorney fees to “reasonable”
amounts, as demonstrated in the numerous statutes in which it did
so, and it alone is authorized to amend OCGA § 13-6-11 to limit
awards under that Code section. In this case, Taylor’s actual
expenses of litigation are 40 percent of the jury’s enforceable verdict
not be applied in tort cases. See Sepulvado v. Daniels Lincoln-Mercury, Inc.,
170 Ga. App. 109, 110 (2) (316 SE2d 554) (1984) (quoting the immediate
predecessor to OCGA § 13-6-11 as follows: “The expenses of litigation generally
shall not be allowed as a part of the damages; but where the defendant has
acted in bad faith in making the contract, has been stubbornly litigious, or has
caused the plaintiff unnecessary trouble and expense, the jury may allow
them.”). But, in 1984, the General Assembly reversed that change. See Ga. L.
1984, p. 22, § 13 (deleting “in making the contract” from Code Section 13-6-11,
relating to recovery of expenses of litigation generally). Therefore, even if this
Court in the past incorrectly allowed the predecessors to OCGA § 13-6-11 to
authorize expenses of litigation in tort cases, the General Assembly has since
embraced that interpretation.
168
as attorney fees under her contingency fee contract with counsel,
plus $288,055.03 in other litigation expenses proven at trial. The
trial court reached the right result, even though it applied Couch to
Taylor’s claim under OCGA § 13-6-11. Accordingly, I concur in
Division VIII only to the extent the majority opinion affirms the trial
court’s ruling that Taylor be awarded expenses of litigation under
OCGA § 13-6-11 in that amount.
169