Georgia’s Governor Kemp signed SB 68, a tort reform bill, into law on April 21, 2025[i], amending Code of Georgia Title 51, Chapter 3. This impacts premises liability cases, but some ponder whether this applies to slip and fall causes of action. Instead of a revision to any of the current articles under this chapter, the legislature drafted a new article, Article 5, which specifically only changes negligent security causes of action, not directly impacting slip and fall causes of actions.

However, slip and fall cases, just like many other personal injury actions impacted by SB 68 tort reform, were affected by other substantial revisions and amendments that litigators need to be on the lookout. These revisions are currently retroactive, and they are related to pain and suffering, attorney fees, and bifurcated trials.

The Value of Pain and Suffering

In particular, SB 68, Section 1, has revised OCGA 9-10-184, relating to the value of pain and suffering, and this revision is retroactive. Previously, in a trial for a civil action for personal injuries, counsel was allowed to argue the worth or monetary value of pain and suffering to the jury—provided, however, that any such argument shall conform to the evidence or reasonable deductions from the evidence in the case.[ii]

SB 68 currently reads as follows:

(b) Except as otherwise provided in subsection (c) of this Code section, in the trial of any action to recover damages for bodily injury or wrongful death, counsel shall not argue the worth or monetary value of noneconomic damages, and counsel shall not, in the hearing of the jury or any prospective juror, elicit any testimony regarding, or make any reference to, any specific amount or range of amounts of noneconomic damages, the measure of such damages being the enlightened conscience of an impartial jury.

(c)(1) In the trial of any action to recover damages for bodily injury or wrongful death,  counsel for any party shall be allowed to argue the worth or monetary value of noneconomic damages only after the close of evidence and at the time of such party’s S. B. 68 – 2 – 25 LC 49 2362S  first opportunity to argue the issue of damages, provided that such argument shall be rationally related to the evidence of noneconomic damages and shall not make reference to objects or values having no rational connection to the facts proved by the evidence.

(2) If counsel is entitled to the opening and concluding arguments, then counsel shall not be allowed to argue the worth or monetary value of noneconomic damages during such  counsel’s concluding argument unless counsel has argued the worth or monetary value of noneconomic damages during such counsel’s opening argument, and such counsel shall not argue a different worth or monetary value of noneconomic damages in concluding  arguments than was argued in such counsel’s opening argument.

(d) If counsel elicits any testimony, or makes any argument or reference, prohibited by this Code section in the hearing of the jury or one or more prospective jurors, the court shall take remedial measures as provided in Code Section 9-10-185 or shall, with respect to prospective jurors, excuse the prospective jurors.

(e) Nothing in this Code section shall be construed to prohibit counsel from asking prospective jurors during voir dire whether they could return a verdict that does not award any damages or a verdict in excess of some unspecified amount, provided that such question is supported by the evidence.[iii]

Court Cost, Litigation, and Attorney Fees

Also, SB 68, Section 4 (also retroactive) amended Chapter 15 by adding a new code section, 9-15-16 which applies to court, litigation cost and attorney fees. Prior to this revision, any party could possibly recover double attorney fees. The new law aims to prevent this type of recovery.

SB 68 states that following in relevant part:

a) In any civil action, no party shall recover the same attorney’s fees, court costs, or expenses of litigation more than once pursuant to one or more statutes authorizing awards of attorney’s fees, court costs, or expenses of litigation, whether such statute or statutes authorize such awards for compensatory or punitive purposes, unless the statute or statutes specifically authorize the recovery of duplicate attorney’s fees, court costs, or expenses of litigation.

(b) In any civil action, if a party seeks to recover attorney’s fees pursuant to any statute authorizing an award of reasonable attorney’s fees, a contingent fee agreement between such party and such party’s attorney shall not be admissible as proof of the reasonableness of the fees.

(c) Nothing in this Code section shall limit or diminish any contractual right to recover attorney’s fees, court costs, or expenses of litigation.[iv]

Right for Bifurcated Trial

SB 68 amends Article 1 of Chapter 12, allowing for a bifurcated trial on the issues of liability and damages. Before SB 68 there was no statutory right for a bifurcated trial. Bifurcation was a discretionary decision made by the judge, not a right for the parties to demand. Now the parties have statutory right—with a couple of exceptions.

SB 68 states that following in relevant part:

a) In any action to recover damages for bodily injury or wrongful death, any party may elect, by written demand prior to the entry of the pretrial order, to have fault and any award of damages determined at trial in the following manner:

(1) In the first phase of the trial, the trier of fact shall determine the fault of each defendant, and if the trier of fact finds that any defendant is at fault for the plaintiff’s injuries or wrongful death, the trier of fact shall further determine through an appropriate form of the verdict the percentages of fault of all persons or entities that contributed to such injuries or wrongful death as provided in Code Section 51-12-33, prior to any determination of the total amount of damages to be awarded, if any such findings are required. The evidence and arguments of counsel in the first phase of the trial shall be limited to the issues provided for in this paragraph;

(2) If the trier of fact finds in the first phase of the trial that any defendant is at fault for the plaintiff’s injuries or wrongful death, the trial shall be recommenced immediately with the same judge and the same jury. In the second phase of the trial, the trier of fact shall determine all compensatory damages to be awarded to the plaintiff, if any, and the evidence and arguments of counsel shall be limited to this issue; and

(3) If the trier of fact finds in the second phase of the trial that any compensatory damages are to be awarded to the plaintiff, the trial may be recommenced immediately with the same judge and the same jury for such further proceedings as may be required,  including, but not limited to, proceedings provided for in subsection (d) of Code Section 431 51-12-5.1 concerning punitive damages and proceedings to determine liability for, and the amount of, any attorney’s fees, court costs, or expenses of litigation that may be awarded by the trier of fact as provided by law.

(b) The court may reject an election by any party made pursuant to subsection (a) of this  Code section and order the concurrent trial of fault and damages only upon motion by any  party in opposition to such election and upon the court’s determination that: 

(1) The plaintiff, or if the plaintiff is the legal guardian of a minor, the minor, was  injured by an alleged sexual offense and would be likely to suffer serious psychological or emotional distress as a result of testifying more than once in a bifurcated proceeding; or

(2) The amount in controversy is less than $150,000.00.[v]

In conclusion, although the standard for slip and fall cases have not changed under the new tort reform, there are many currently retroactive amendments that could substantially reduce the outcome at trial and help avoid Nuclear Verdicts®. It is important to review new legislative updates to ensure cases will be properly handled related to pain and suffering, attorney fees, and bifurcated trials.

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