Tort Reform Legislation in Georgia affects Property & Casualty Industry

On April 21, 2025, Georgia Governor Brian Kemp signed into law a sweeping package of tort reform legislation. Governor Kemp has long identified the need for tort reform as a critical issue to his administration. Now effective, Senate Bill 68 (the "Act") introduces several important measures to further that goal.

The Act accomplishes several goals of the Property & Casualty industry:

● Anchoring:	The Act limits lawyers' ability to suggest arbitrary benchmarks when asking a jury to award certain amounts.
● Phantom Damages:	The Act allows defendants to tell the jury the plaintiff’s actual medical costs rather than the sticker price.
● Premises Liability:	The Act lowers the standard of care applicable to landowners and their security contractors with regard to the "foreseeability" of crime, creates new defenses, and requires reasonable allocation of fault with primary tortfeasors.
● Seatbelt Evidence:	Defendants in automobile accidents are now allowed to tell the jury whether the plaintiff was wearing a seatbelt.
● Civil Procedure:	Defendants may move to dismiss instead of answering, which can help defendants postpone or limit discovery costs;  Plaintiffs can no longer freely dismiss and refile cases;  Trials may be bifurcated to keep prejudicial evidence about damages out of the liability stage;  Double-recovery of attorney's fees is no longer permitted.

The Act became effective on April 21, 2025, when Gov. Kemp signed it into law. The Act specifies that the new negligent security standards and the new evidentiary treatment of phantom damages shall apply to any cause of action that arose after the effective date. All other provisions are to apply from the effective date onward, including for any litigation already pending at the time of the effective date so long as such application is otherwise constitutional. Read on for additional detail.

BACKGROUND

The Act responds to steady increases in insurance claim frequency and severity and a legal landscape in Georgia replete with procedural pitfalls for defendants and their insurers. This landscape has magnified losses paid in the state, and, as a direct result, the cost of doing business for insurers and policyholder businesses alike.

On November 1, 2024, the Georgia Office of the Commissioner of Insurance and Fire Safety issued a report summarizing its findings on the state of the casualty insurance market in Georgia and proposed reforms. According to the report, the five-year average claim count increased by more than 24 percent from the 2014-2018 period to the 2019-2023 period. The report shows steady increases in policy limits claims and losses exceeding USD 1 million during the relevant time frame as well.

Rising claim frequency and severity is further amplified by the legal landscape in Georgia, which the American Tort Reform Foundation ("ATRF") ranked  as the fourth worst jurisdiction in the country. According to the ATRF, "Georgia's civil justice system is plagued by skyrocketing nuclear verdicts, inflated awards for medical costs, expansive premises liability, and laws that set up defendants to fail creating endless liability."¹ The ATRF asserts that "lawsuit abuse and excessive tort costs wipe out billions of dollars in economic activity annually," and, citing a study conducted by the Perryman Group, notes that Georgia citizens each pay a "tort tax" of USD 1,372.94, and that 137,658 jobs are lost each year because of abusive tort litigation.²

Against this backdrop, Georgia lawmakers set out to relieve the outsized pressure that the civil litigation system placed on insurers and policyholders. In public remarks made in connection with his public announcement of the Act, Gov. Kemp observed that "our legal environment is draining family bank accounts and hurting job creators of all sizes in nearly every industry in our state. After months of listening to our citizens, businesses, and stakeholders across the spectrum, it is clear the status quo is unacceptable, unsustainable, and jeopardizes our state's prosperity in the years to come."³

Below, we address each major issue addressed by the Act.

SUBSTANTIVE CHANGES

(1) Anchoring – the ability to argue the value of non-economic damages

The Act limits attorneys' ability to argue the value of non-economic damages, which are damages not associated with specific monetary losses, including pain-and-suffering damages. Plaintiffs' attorneys often use "anchoring" tactics in closing arguments to try and set arbitrary benchmarks against which jurors could evaluate such damages. 

As a result of extensive debate and compromises, there is still some ability to argue non-economic damages, but limited in that evidence as to the worth of non-economic damages must be "rationally related" to the non-economic damages, and may not "make reference to objects or value having no rational connection to the facts proved by the evidence."⁴ Gov. Kemp explicitly called out "artificial benchmarks like the cost of fighter jets, or the number of miles a truck drove, or the salary of a professional athlete—all of which are real examples from cases" in explaining the need for these changes.

If testimony is given or argument made outside these narrowly prescribed limits, the court is instructed to take remedial measures.

(2) "Phantom Damages" – presenting the jury with sticker prices rather than actual costs

The Act allows defendants to introduce at trial the amounts that a health insurer actually paid to satisfy the plaintiff's medical bills. Previously, plaintiffs would introduce the full, undiscounted "sticker price" of the medical bills, and defendants trying to establish the reasonable value of the medical services by showing the amount the provider actually accepted (e.g., through negotiated rates between providers and health insurers) often ran into roadblocks by way of the collateral source rule. Although some recent case law began to chip away at the application of the collateral source rule in this context, the Act addresses this "phantom damages" issue head-on, and makes clear that evidence of such amounts is admissible.

Specifically, the Act limits recovery of special damages for medical expenses to "the reasonable value of medically necessary care, treatment, or services," and provides that evidence as to such reasonable value may include both "the amounts charged for past, present, or future medical and healthcare expenses and the amounts actually necessary to satisfy such charges pursuant to the insurance contract or the applicable governmental workers' compensation program, regardless of whether the health insurance has been used, is used, or will be used to satisfy such charges." ⁵

(3) Premises Liability – changes in landowner responsibility and negligent security law

The Act amends Georgia's statutes that govern liability of landowners and those they hire to provide security. This addresses both the long-standing notoriety of Georgia for jackpot verdicts in premises liability cases, and recent changes in the law enacted by the Supreme Court allowing evidence of non-violent crimes on premises to establish foreseeability of violent crime, and expanding duty of security contractors⁶  to third-party invitees.⁷ 

The new statute defines a statutory claim of "negligent security,"⁸ establishing liability of an “owner or occupier”⁹ for any injury sustained by an invitee or licensee while on the owner or occupier's premises, but only if a plaintiff has proven certain factors (discussed below).

Further, security contractors that "assume or undertake a duty to invitees or licensees to keep all or part of a premises safe from the wrongful conduct of a third person may be liable for negligent security" as well, but "only in the same manner, to the same extent, and subject to the same limitations and provisions applicable to an owner or occupier." In other words, a security contractor cannot be subject to liability for negligent security to a greater extent than an owner or occupier of the premises.

          (A) Establishing the Duty

To prove liability for an invitee's injuries sustained while at the owner or occupier's premises, a plaintiff must prove five factors. First, the plaintiff must prove that the wrongful conduct by a third person was reasonably foreseeable by the owner or occupier. To prove this, the owner or occupier must have had: 

          (1) "particularized warning of imminent wrongful conduct by a third person,"¹⁰  or

          (2) "[r]easonably should have known that a third person was reasonably likely to engage in such wrongful conduct upon the premises."

A plaintiff can demonstrate that an owner or occupier reasonably should have known that such wrongful conduct was likely to occur by showing that there were:

          (1) "[p]rior occurrences of substantially similar wrongful conduct upon the premises of which the owner or occupier had actual knowledge";

          (2) "[p]rior occurrences of substantially similar wrongful conduct upon the property adjoining the premises, or otherwise occurring within 500 yards of the premises, of which the owner or occupier had actual knowledge";

          or (3) "[p]rior occurrences of substantially similar wrongful conduct by the third person whose wrongful conduct caused the [plaintiff's] injury, if the owner or occupier knew or should have known, by clear and convincing evidence, that such third person was or would be upon the premises and if the owner or occupier had actual knowledge of such prior occurrences or substantially similar wrongful conduct".¹¹  

Second, the plaintiff must prove that their injury was a reasonably foreseeable consequence of such third person's wrongful conduct. Third, the plaintiff must prove that the wrongful conduct "was a reasonably foreseeable consequence of [the] third person exploiting a specific physical condition of the premises known to the owner or occupier, which created a reasonably foreseeable risk of wrongful conduct on the premises that was substantially greater than the general risk of wrongful conduct in the vicinity of the premises." Fourth, the plaintiff must prove that "[t]he owner or occupier failed to exercise ordinary care to remedy or mitigate such specific and known physical condition of the premises and to otherwise keep the premises safe from such wrongful conduct by a third person." And fifth, the plaintiff must prove that the "failure of the owner or occupier to exercise ordinary care was a proximate cause of the injury sustained."

To prove liability for a licensee's injuries sustained while at the owner or occupier's premises, a plaintiff must also prove five factors. These factors differ slightly from the factors discussed above required to prove liability for an invitee's injuries. The plaintiff must prove that:

          (1)     the "owner or occupier had particularized warning of imminent wrongful conduct by a third person"; 

          (2)     the injury "was a reasonably foreseeable consequence of such [third person's] wrongful conduct"; 

          (3)     the wrongful conduct "was a reasonably foreseeable consequence of [the] third person exploiting a specific physical condition of the premises known to the owner or occupier, which created a reasonably foreseeable risk of wrongful conduct on the premises that was substantially greater than the general risk of wrongful conduct in the vicinity of the premises"; 

          (4)     the plaintiff must prove that "[t]he owner or occupier willfully or wantonly failed to exercise any care to remedy or mitigate the specific and known physical condition of the premises and to otherwise keep the premises safe from such wrongful conduct by a third person"; and 

          (5)  the "failure of the owner or occupier to exercise any care was a proximate cause of the injury sustained".

          (B) Proving a Breach of the Duty

In regard to the duty of care, the new statute provides that owners or occupiers are not "required to exercise extraordinary care to keep persons on or around any premises safe from wrongful conduct by a third person," nor are they "required to assume the responsibilities and obligations of government for law enforcement and public safety." When assessing whether an owner or occupier has breached a duty to exercise ordinary care, a judge or jury must consider the following:

          (1) "security measures employed by the owner or occupier at the time of the injury";

          (2) "the need for additional or other security measures";

          (3) "the practicality of additional or other security measures";

          (4) "whether additional or other security measures would have prevented the injury";

          (5) "the respective responsibilities of owners or occupiers with respect to the premises and government with respect to law enforcement and public safety"; and

          (6) "any other relevant circumstances." 

          (C) New Defenses

The new statute expressly precludes liability for owners or occupiers based upon a theory of negligent security if:

         (1) the injured party is a trespasser;

         (2) the injury is sustained by a person not upon the owner or occupier's premises;

         (3) the third party's wrongful conduct that causes injury does not occur on the owner or occupier's premises but in a place where the owner or occupier has no legal right and authority to exclude such third parties;

         (4) the wrongful conduct that causes injury is committed by a tenant or guest of a tenant that the owner or occupier has already commenced eviction proceedings against at the time of the wrongful conduct;

         (5) the injured invitee or licensee came upon the owner or occupier's premises for the purpose of committing a felony or theft that is punishable as a misdemeanor, or was engaged in such crimes at the time of the injury;

         (6) the injury is sustained at premises that are used as a single-family residence; or

         (7) the owner or occupier makes a reasonable effort to provide information about a particularized warning of imminent wrongful conduct by a third person to law enforcement, such as by calling 9-1-1 or making a report.

Note that exclusion (5), which excludes injuries sustained by invitees or licensees who are engaged in the commission of certain crimes while on the premises, expressly excepts injuries sustained by victims of human trafficking as discussed in O.C.G.A. § 16-5-46.

          (D) Apportionment of Fault

The new statute requires the apportionment of fault pursuant to O.C.G.A. § 51-12-33, the state's modified comparative fault rule. Accordingly, a judge or jury must reasonably apportion fault to:

          (1) "[t]he owner or occupier";

          (2) "[a]ny third person whose wrongful conduct was a cause of the injury from which the claim of negligent security arises"; and

          (3) "[a]ny other persons to whom fault otherwise should be apportioned under [O.C.G.A.] § 51-12-33".¹²

If a jury fails to apportion fault reasonably to the third person whose wrongful conduct was a cause of the injury at issue, the court must set aside the jury verdict and order a retrial of liability and damages. The statute provides that there is "a rebuttable presumption that an apportionment of fault is unreasonable if the total percentage of fault apportioned to all third persons for their wrongful conduct is less than the total percentage of fault apportioned to all owners or occupiers, security contractors, and other persons and entities that did not engage in wrongful conduct."

When discussing the apportionment of fault, parties are prohibited from referencing the following in the presence of jurors:

          (1) any sentence of imprisonment or probation, fine, or other punishment imposed in criminal proceedings related to the third party's wrongful conduct;

          (2) the financial resources of parties or nonparties; or

          (3) "[t]he effect of an apportionment of fault upon any award of damages to the plaintiff". 

          (E) Exclusive Remedy

The provisions contained within the new statute are "the sole and exclusive remedy" for negligent security against owners, occupiers, and security contractors. In other words, no owner, occupier, or security contractor can be held liable for negligent security except as laid out in the statute. That said, the statute does not limit any claim or remedy for breach of contract or any other claim, remedy, or cause of action not arising under Georgia's statutes regarding liability of owners and occupiers of land. Similarly, the statute does not limit any claim for breach of contract brought by an owner or occupier against a security contractor. Further, the statute does not limit any cause of action brought under O.C.G.A. § 51-1-56, which provides victims of human trafficking with a civil remedy against perpetrators of such crimes. 

(4) Seatbelt Evidence 

Previously, the failure of a car's driver or passenger to wear a seatbelt could not be used as evidence of negligence in car accident lawsuits. Such evidence was limited to use in diminishing any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a motor vehicle.

The Act reverses the common-law precedents, amending O.C.G.A. § 40-8-7 to provide that such evidence may be considered on the issues of negligence, comparative negligence, causation, assumption of risk, or apportionment of fault. However, the Act provides that such evidence still may not serve as the basis for any cancellation of insurance coverage or increase in premiums.

(5) Procedural Changes

          (A) Allowing a Motion to Dismiss in Lieu of an Answer

Previously, under O.C.G.A. § 9-11-12, a defendant that intended to move to dismiss a lawsuit generally still had to simultaneously file an answer along with its motion to dismiss. The Act amends O.C.G.A. § 9-11-12 to clarify that, in the event a motion to dismiss or motion for more definite statement is filed, the movant is not required to file an answer unless and until the motion is denied. If the motion is denied, the party's answer is due 15 days from such denial. Per Gov. Kemp's announcement, this change was intended to "cut down unnecessary discovery expenses while a motion to dismiss is pending."

          (B) Limiting Time in which Plaintiffs may Voluntarily Dismiss and Refile 

Plaintiffs in Georgia civil lawsuits were previously able to voluntarily dismiss a lawsuit at any time before the first witness was sworn, and the first voluntary dismissal would be without prejudice, such that the plaintiff could later refile the lawsuit. Any subsequent voluntary dismissals after the first would amount to an adjudication on the merits, though, meaning that the previous rule effectively allowed a plaintiff a one-time do-over at any point before trial. 

The Act modifies O.C.G.A. § 9-11-41 to only allow for voluntary, unilateral dismissal until 60 days following the date the opposing party serves an answer. Per Gov. Kemp, this change was intended to "put an end to the practice of plaintiffs dismissing a case and refilling in or 'cherry pick' a more favorable jurisdiction to them after the defense has already racked up the cost of preparing and beginning the trial."

          (C) Eliminating Double Recovery of Attorney's Fees 

Litigants in Georgia have multiple routes to seek attorney's fees from an opposing party in a lawsuit. The Act introduces a new rule clarifying that no party may recover the same attorney's fees or expenses more than once under different statutes, unless such statute explicitly allows for duplicate recoveries of the same fees. Where reasonable attorney's fees are recoverable, a contingent fee agreement between the party and its attorney may not be used as evidence as to the reasonableness of such fees, under the Act.

Governor Kemp explains that this change "closes an important loophole that allowed plaintiff's counsel to recover their fees twice for the same lawsuit. Courts will remain able to award attorney fees—but only once."

          (D) Bifurcated Trials 

The Act allows for trials in negligence lawsuits to be bifurcated, meaning that trials will be split into two phases: one to determine liability and one to determine the amount of damages. Only if the jury in the liability phase of the trial first finds the defendant liable will evidence of the amount of damages be introduced in the second phase. This will allow a jury to determine the issues of liability without the potential for bias or prejudice introduced by simultaneously considering the amount of damages that could be awarded contingent on their liability verdict.

REACTIONS

Advocacy groups for the insurance industry have praised the Act and the impact it could have on the state. The American Property Casualty Insurance Association ("APCIA") expressed support for the Act, noting that "Georgia consumers and businesses bear the brunt and burden of legal system abuse. Abusive tactics that artificially inflate damages are a key driver of rising insurance costs, which directly impact the pocketbook of Georgia families and businesses."¹³

The Plaintiffs' bar, meanwhile, has been swift and vocal in its opposition to the Act. The Georgia Rights Alliance, which self-identifies as a "group of Georgia citizen-activists," characterizes the Act as "really just a massive giveaway to Big Insurance," and contends that, if passed, the Act will "make it easier for insurance companies to deny valid claims," "provide legal immunity to negligent businesses that harm people," and "do nothing to lower insurance premiums." The Georgia Trial Lawyers Association argues  that the relief provided in the Act is not necessary, because "insurance companies have continued to raise premiums despite making record profits."

The point about insurer profitability has been widely echoed following the announcement of the Act, although without much specificity about jurisdiction or lines of business. In response to this point, the APCIA states that "it's important to set the record straight about falsehoods being spread by the Georgia trial bar regarding insurance industry profitability. Insurers in Georgia are losing money. This trend is particularly bad for personal auto insurers and all lines of liability coverage, which many businesses from truckers to doctors to restaurants and shops rely on. Comprehensive legal system abuse reform can help rein in rising insurance costs. We are seeing how recent legal system abuse reforms are already helping to stabilize our neighboring state of Florida's litigation environment and its property insurance market. The proof is in the pudding."¹⁴

OBSERVATIONS

Georgia's new Tort Reform Act is indicative of the state's current political climate. Although the Republican Party has controlled all three governmental branches for decades, significant legislation was necessary to address the state's status as a hellhole jurisdiction. As in previous years, the "sausage-making" process was polluted by the notorious purchasing power of the Georgia Trial Lawyers Association, which recently developed inroads deep into both political parties. Accordingly, Republicans had to negotiate with other Republicans in order to pass the Act.  

The new standards are better for business, but they are also verbose, complicated, and untested. Other factors supporting Georgia's "hellhole" status (for example, our cottage industry of manufacturing bad-faith claims through "Holt Demands") remain, despite the efforts of the Property & Casualty lobby. 

All in all, the Act is a victory for Georgia landowners, liability insurers, and defendants, but its significance remains to be seen. The Act seems likely to curtail litigation in the long run but require increased litigation until its parameters have been fleshed out by the courts. 

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[1] Georgia – Judicial Hellholes, AMERICAN TORT REFORM FOUNDATION (2025), https://www.judicialhellholes.org/hellhole/2024-2025/georgia/.
[2] AMERICAN TORT REFORM FOUNDATION, JUDICIAL HELLHOLES 2024-2025 31 (2024), https://www.judicialhellholes.org/wp-content/uploads/2025/01/ATRA_JH24_text_04b_smaller.pdf.
[3] Press Release, Governor Brian P. Kemp Office of the Governor, Gov. Kemp Unveils Plan to Tackle Tort Reform and Stabilize Insurance Costs for Hardworking Georgians (January 30, 2025), https://gov.georgia.gov/press-releases/2025-01-30/gov-kemp-unveils-plan-tackle-tort-reform-and-stabilize-insurance-costs.
[4] O.C.G.A. § 9-10-184 (2025).
[5] O.C.G.A. §  51-12-1.1 (2025).
[6] "Security contractor" means any person that contracts with an owner or occupier to provide protective or security services upon any premises or any director, officer, employee, or agent of such person.
[7] Georgia CVS Pharmacy, LLC v. Carmichael, 316 Ga. 718, 890 S.E.2d 209 (2023).
[8] "Negligent security" means any claim against an owner or occupier, or against a "security contractor," that "[s]eeks to recover damages for bodily injury or wrongful death" and "[a]rises from an alleged failure to keep the premises and approaches safe from wrongful conduct of third persons."
[9] "Owner or occupier" means any person that owns, leases, occupies, operates, maintains, or manages real property of any kind or any director, officer, employee, or agent of such person.
[10] "Particularized warning of imminent wrongful conduct by a third person" means information actually known to, and "deemed credible by, [an] owner or occupier, which causes the owner or occupier to consciously understand that a third person is likely to imminently engage in wrongful conduct on the premises that poses a clear danger to the safety of persons upon the premises." Such information must specify the identity of the third party and the "nature and character," "degree of dangerousness," and "location, time, and circumstances" of such wrongful conduct.
[11] "Prior occurrences of substantially similar wrongful conduct" means prior occurrences which are sufficiently similar in nature and character, degree of dangerousness, proximity, location, time, and circumstances to the wrongful conduct at issue in a negligent security claim, so as to "lead a reasonable . . . owner or occupier to apprehend that such wrongful conduct is reasonably likely to occur upon the premises, to understand the risk of injury to persons upon the premises presented by such wrongful conduct, and to understand that a specific and known physical condition of the premises has created a risk of such wrongful conduct . . . that is substantially greater than the general risk of such wrongful conduct in the vicinity of the premises."
[12] For example, a property manager or security contractor hired by the premises owner.
[13] Press Release, American Property Casualty Insurance Association, APCIA Stands with the Georgia Business Community in Supporting Governor Kemp’s Proposal to Tackle Legal System Abuse in the Peach State (January 30, 2025), https://www.publicnow.com/view/292B95155EBDA83E5F6FD25344C66559B7ACC1BD.
[14] Id.

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