A “tort” is an action that negatively affects someone else. Personal injury law (and wrongful death actions), the practice area that our Atlanta personal injury law firm exclusively handles, deals with torts.
A plaintiff appealed a jury verdict in favor of two defendants in her negligence action against them arising from an automobile accident. Specifically, she argued the trial court’s jury instruction on the preponderance-of-the-evidence standard applicable in civil cases was an incorrect statement of law that required a new trial of the case.
Background
On her drive home in May 2017, the plaintiff saw a bicyclist on the shoulder of the road opposite hers. Right after that, another driver was going around a curve in the opposite direction when she saw the bicyclist in the road in front of her. This made the other driver immediately slam the brakes and swerve into oncoming traffic. As the other driver did this, she collided with a vehicle before crashing into the plaintiff’s car. Two witnesses at the scene told the police that the bicyclist caused the accident, but he left the scene.
The plaintiff was transported to the hospital where a doctor did not find she suffered any injuries. However, the plaintiff later sought treatment from a chiropractor, who determined she had issues with her neck and back caused by the stress and the impact of the collisions.
The plaintiff filed a negligence action against the other driver and the bicyclist (the defendants), alleging their actions either completely or partially caused the accident, which resulted in her injuries. The case proceeded to trial, and the jury entered a verdict in favor of the other driver and the bicyclist. An appeal by the plaintiff followed.
The plaintiff argued the trial court’s jury instruction on the preponderance-of-the-evidence standard was inaccurate and misleading. As a result, she asked the Georgia Court of Appeals to direct the trial court to grant her a new trial. And while the Court agreed with the plaintiff that the challenged instruction was erroneous, she wasn’t entitled to a new trial on this basis.
What is a Preponderance of the Evidence?
Presiding Judge Stephen Dillard explained that in civil cases, a plaintiff must prove liability (i.e., duty, negligence, proximate cause) by a preponderance of the evidence, that is evidence showing that “something is more likely true than not.” Here, over the plaintiff’s objection, the trial court gave an instruction almost identical to Georgia’s suggested pattern jury instruction on the preponderance-of-the-evidence standard applicable in civil cases:
The plaintiff has the burden of proof, which means the plaintiff must prove whatever it takes to make his case, except for any admissions in the pleadings by the defendant. The plaintiff must prove his case by what is known as preponderance of the evidence; that is, evidence upon the issues involved, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other.
Judge Dillard noted that 12 years ago, the General Assembly adopted Georgia’s current evidence code, which applies in cases tried on or after January 1, 2013. And under the state’s prior evidence code (which is inapplicable in this case), “‘preponderance of the evidence’ [was] statutorily defined [under former O.C.G.A. § 24-1-1(5)] as that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” However, when the current evidence code became effective in 2013, it no longer included a statutory definition of the preponderance-of-the-evidence standard. As such, the Court must assume the General Assembly’s decision to repeal the former evidence code’s statutory definition of preponderance of the evidence was a matter of considered choice.
Importantly, Judge Dillard opined that in the preamble to the legislative act adopting the current evidence code, the General Assembly explained that in doing it sought “to revise, modernize, and reenact the general laws of this state relating to evidence while adopting, in large measure, the Federal Rules of Evidence.” To that end, the Supreme Court of Georgia has explained that “[m]any provisions of the new [e]vidence [c]ode were borrowed from the Federal Rules of Evidence, and when the Court considers the meaning of these provisions, it looks to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the U.S. Supreme Court and the Eleventh Circuit. And because the General Assembly’s codified intent in enacting the current evidence code was to, for the most part, model it after the Federal Rules of Evidence (which didn’t provide a definition of preponderance of the evidence), the Court of Appeals agreed with the plaintiff that it must look to federal caselaw in determining Georgia’s legal definition of this evidentiary standard.
Many federal courts—including the U.S. Supreme Court and the Eleventh Circuit—have explained that “[t]he burden of showing something by a ‘preponderance of the evidence.’. . . simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence…” And after Georgia’s prior evidence code’s statutory definition of preponderance of the evidence was repealed, the Supreme Court of Georgia provided a similar, straightforward, and brief definition of this evidentiary standard, holding that “proof by a preponderance simply requires that the evidence show that something is more likely true than not.”
The Plaintiff’s Appeal
Here, the plaintiff objected to the entire jury instruction at issue; and in doing so, primarily focused on the trial court’s reference to the reasonable-doubt burden of proof applicable in criminal cases and its somewhat vague statement that the plaintiff “must do whatever it takes to make his case.” According to the plaintiff, the trial court’s instruction on her burden of proof suggested to the jury that a much higher burden than the preponderance-of-the-evidence standard applied. On this, Judge Dillard and the Court of Appeals agreed.
Applying the definition of preponderance of the evidence provided by the U.S. Supreme Court, the Georgia Court of Appeals concluded the trial court’s jury instruction was improper, even though it tracked the language of former O.C.G.A. § 24-1-1(5) and Georgia’s current suggested pattern jury instruction. Significantly, the definitions of preponderance of the evidence provided by federal courts, as well as the Georgia Supreme Court, make no mention of the inapplicable and much higher reasonable-doubt burden of proof. And at least one federal circuit’s jury instruction on the burden of proof applicable to civil cases expressly (and helpfully) explains the difference between the civil and criminal burdens of proof, emphasizing that the familiar criminal reasonable-doubt standard doesn’t apply in civil cases.
Here, the trial court’s instruction drew the jury’s attention to the reasonable-doubt standard without explaining the important differences between the civil and criminal standards of proof or making clear that the higher burden applied in criminal cases didn’t apply in this particular civil case.
The trial court’s lengthy explanation of the burden of proof applicable in civil cases bore almost no relation to the simple and straightforward definition of preponderance of the evidence provided by federal courts and the Georgia Supreme Court, Judge Dillard found.
“Regardless, even if the trial court’s instruction on preponderance of the evidence could somehow be forgivingly construed as a correct statement of law, its reference to a much higher burden of proof and failure to expressly instruct the jury that it did not apply in this case posed a significant risk of confusing or misleading the jury as to the applicable (and much lower) burden of proof,” the judge wrote.
Given the unnecessary and confusing reference to the criminal (and much higher) reasonable-doubt standard of proof that bears no relation to the straightforward definitions of preponderance of the evidence provided by the Georgia Supreme Court and federal courts, Judge Dillard agreed with the plaintiff that the trial court’s instruction on preponderance-of-the-evidence standard was erroneous. Nonetheless, the Court of Appeals affirmed the jury’s verdict in favor of the other driver and the bicyclist on this issue because the plaintiff expressly testified at trial that neither defendant committed any specific negligent act. As a result, it was highly unlikely the trial court’s erroneous jury instruction on the plaintiff’s burden of proof contributed to the verdict. White v. Stanley, 2023 Ga. App. LEXIS 453 (Ga. App. October 3, 2023).
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