ATLANTA, Ga. (Atlanta News First) - Perhaps no issue at the Georgia Capitol this legislative session has loomed as controversially as tort reform. Tort – the sector of law that deals in civil liability – stands to be an impactful issue for both businesses and everyday consumers.

Lawmakers could vote on a package of bills, Senate Bill 68 and Senate Bill 69, that would overhaul Georgia’s tort system as soon as this week. Gov. Brian Kemp, who called tort reform his No. 1 priority this legislative session, has even threatened to call lawmakers back for a rare special session if they can’t agree on reforms in the legislature’s remaining few days.

Among the changes Kemp wants to see implemented is a reform that would lower the threshold for liability on businesses when something happens on their property. Known as “premise liability,” Kemp says businesses are taking the brunt of a lax tort system that makes it too easy to bring lawsuits against businesses and win massive settlements at their expense.

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“Extremely easy,” said Eric Gray, who manages a local hotel in Cobb County.

Gray’s received his fair share of unnecessary and frivolous lawsuits. He even received a letter from an attorney suing him for $2,000, stating his hotel lacked a handicapped-accessible lift in their pool facility.

“I walk over to the pool and I’m like, okay the pool lift is still there,” said Gray. “They used a picture that was showing the ADA lift that would’ve been behind the picture.”

Gray later found out the attorney had never even visited the hotel and had sent the same blanket lawsuit letter to hundreds of facilities around Georgia, using photos from their websites that didn’t show the ADA lift.

Gray said with the amount of lawsuits businesses like his face, warranted or not, it’s become cheaper to settle them than to spend the time and money it takes to fight the case in court.

“If you get hit with one of those every week, that’s going to add up,” he said. “We’re a stand-alone hotel, so if we get hit with a very frivolous lawsuit that could cost a lot of money then really you have to question like, can I afford to stay in business?”

Restaurant owner Alexis Kinsey, who has operated Fork You Concepts since 2011, feels the same way.

“The risk is not what you can control. The risk for me mentally is what you can’t control,” she said. “If something happened at your house, in your yard that you had nothing to do with, do you think you should be brought into a lawsuit because of that?”

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Kinsey has her own anecdotes about frivolous suits that have threatened the stability of her business. One guest, who claimed they chipped a tooth eating at her restaurant, had their lawyer demand Kinsey put new tires on the woman’s car as part of the settlement.

Another woman who slipped in heels outside one of their restaurants, then proceeded to enjoy the rest of the night inside, sued Kinsey two years later claiming shoulder pain.

“I’m like, I’m ready to fight, let’s go, let’s show the people that this is a lie and it’s frivolous, and (insurance) ended up settling because it’s less expensive and more cost-effective to do that,” Kinsey said. “We’re at a breaking point, with the cost of everything going up, and looking at the insurance costs going up, there’s only so much juice in there.”

Kinsey, and lawmakers in support of tort reform, say it’s even causing some insurers to leave Georgia altogether. Their hope is that by making it harder to sue businesses, the frequency of lawsuits will decrease, insurers will come back, and competition from returning insurers will organically drive down rates.

Some opposing lawmakers have pointed to other states that have undertaken tort reform, arguing rates haven’t evened out despite their efforts to change the civil system.

“Nothing in this bill requires a single penny of premium reduction, nothing freezes rates, nothing stops insurance companies from hiking up prices whenever they want,” said State Sen. Nabilah Islam Parkes (D-Duluth). “Florida has passed tort reform legislation, and their insurance rates have skyrocketed. Auto insurance is up 23%, home insurance is up 177%. Overall premiums are up 37%. That’s what happens when you hand power to billion-dollar corporations and expect them to suddenly start looking out for working people.”

In recent years, the legal industry has spent tens of millions of dollars on advertising, promising big payouts in the six-or-seven-digit range for accidents, slip and falls, medical malpractice and emotional distress. Ironically, some of the lawmakers pushing hardest for tort reform are, themselves, attorneys.

“I am an injury attorney and contrary to some rhetoric floating around, we do hate frivolous lawsuits,” said State Sen. Bo Hatchett (R-Cornelia). “They cheapen our work; they undermine our mission to hold wrongdoers accountable and make our communities safer for our families.”

But some who oppose tort reform say not every lawsuit is frivolous, and the current proposals for change could have painful unintended consequences.

Joe Fried has been an attorney in Atlanta for years and before that, a police officer in the city. He defended the Holt family when their 5-year-old son, Charlie, died at an Atlanta restaurant. Visiting from North Carolina, the family patronized the Sundial, a revolving restaurant in downtown Atlanta. As they finished up and were getting ready to leave, Charlie wandered off and was caught in between a revolving wall and a stationary booth.

“And it pulled him into an area that was just inches wide,” said Fried. “Charlie’s head was cracked open, crushed, literally as his father is holding it trying to keep it together.”

Charlie died and the family successfully sued the restaurant, claiming they should have known about the dangers the pinch point created. They now run a nonprofit in Charlie’s name.

But Fried said under the proposed law changes, that would’ve been a harder case to bring. He points to a provision that would allow defense attorneys to halt proceedings, possibly hindering the plaintiff’s investigations in a crucial stage.

Fried also notes that in his experience – and in the case of the Holts – not every case is about money. He said the reason for the suit was to make the restaurant a safer place.

“It shouldn’t have happened not because Charlie shouldn’t have tried to do what he did, it shouldn’t have happened because that shouldn’t be possible in a public place,” he said.

Fried also points to another provision of the tort reform laws known as bifurcation. It would require that a civil proceeding be split into two trials: one to determine the innocence or guilt of a potential wrongdoer, and another to determine damages. It would also mean that survivors, sometimes traumatized already, would have to testify multiple times.

“Can you imagine the people who just say, I just can’t do it. I can’t do it,” said Fried. “So what happens in that situation when you can’t do it? We’re creating a system when there is no, then, accountability.”

Susan Cobb knows the toll it can take. She says her daughter, Jennifer Cobb, was sexually groomed and assaulted by her gymnastics coach at the YMCA since she was 11 years old. Years later, Jennifer testified against her accused abuser in court, six days before she was found dead by hanging.

“How can we expect these victims to do that? How?” said Cobb. “She should still be here, alive and healthy.”

The accused abuser is still awaiting criminal trial on a slew of charges, but the Cobbs successfully sued the YMCA in civil court, claiming they failed in their obligation to keep Jennifer safe while she was on their property.

Jennifer, her mother said, wouldn’t have made it to another round of testimony and the case may have been thrown into jeopardy had she needed to testify again. She said it’s an unintended consequence of bifurcation, and a more laid back premise liability threshold, that could hurt survivors and victims of violent and sexual crimes.

“I had my day – or our day – to be able to hold them responsible, but what about the future victims? The victims of today or tomorrow if this is passed?” said Cobb. “This, if passed as written, will basically tell these organizations, you’re not going to be sued, you don’t have to have security, you don’t have to worry about following your own safety policy.

Cobb has become an activist for change. She’s using every cent of the family’s settlement to support causes close to Jennifer’s heart, and has traded letters with Kemp urging him to reconsider bifurcation and premise liability when the plaintiffs are sexually, financially or emotionally abused, or trafficked. She uses the example of the multiple women she’s met who were sex trafficked and may have a harder time suing the hotels where they were bought and sold under tort reform.

“People want to talk about frivolous lawsuits, I understand that, I understand that. But we have a justice system, twelve jurors, and a judge who can determine that whether lawsuits are frivolous or not,” said Cobb. “Write it so that is it clearly written that those who are raped, molested, violated, sexually trafficked, grandmothers and grandfathers in nursing homes that are beaten or abused, are able to go after the organizations who failed to keep them safe.”

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