SB 68 has passed in Georgia, and it is waiting to be signed by Governor Brian Kemp. This bill dramatically changes the way cases will be litigated in Georgia from both a substantive and procedural perspective. Below you will find how this new bill will affect injury victims and the procedural process that plaintiff’s lawyers will have to endure once these cases are filed.
Negligent Security Cases
Negligent security cases are the most affected types of cases under this bill. The new bill dramatically changes the standards for both invitees and licensees. It also automatically apportions 50% of the fault to the third-party criminal actor. 
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Invitees Standard
Invitees are people who are lawfully on the premises for the benefit of the property owner—think customers at a store, tenants in an apartment complex, or delivery drivers. For invitees, the bill adopts a foreseeability standard that is rooted in whether the property owner had a specific warning about an imminent threat or whether they should have known about the risk based on the following:
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Prior substantially similar crimes on the property, with actual knowledge,
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Prior similar crimes within 500 yards of the property, again with actual knowledge, or
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Prior conduct by the same person who later caused harm—so long as the owner knew or should have known the person would be on the premises, if the owner knew or should have known (by clear and convincing evidence) that the person would be present on the premises and had actual knowledge of their prior acts.
Plaintiffs must also show that the injuries suffered were a reasonably foreseeable consequence of the third party’s exploitation of a specific physical condition of the premises, and that the risk of wrongful conduct was more significant than the risk of wrongful conduct in the vicinity of the premises. Lastly, it must be shown that the property owner failed to use ordinary care to remedy or mitigate the physical condition of the premises to maintain it safe.
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Licensee Standard
For licensees—think social guests—the path to recovery is narrowed down much more. The foreseeability element is limited to situations in which the owner had a particularized warning of imminent wrongful conduct—a much higher bar than the should have known standard permitted for invitees. Prior acts, whether on or near the premises, are not sufficient to establish foreseeability unless they were specifically communicated to the owner. More critically, the bill requires licensees to prove that the owner willfully and wantonly failed to exercise any care to remedy a known dangerous condition preventing third-party conduct. This is an extremely high burden.
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Mandatory Apportionment
If a defendant is found liable in a negligent security case, the trier of fact (usually the jury) must apportion fault. The bills requires that fault must be reasonably apportioned among:
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The owner or occupier of the property.
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Any third person (e.g., criminal actor) whose wrongful conduct caused the injury.
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Any other person who should reasonably bear fault.
Practically speaking, there is arguably an automatic 50% apportionment to the criminal third party. The bill states that there is a rebuttable presumption that an apportionment of fault is unreasonable if the total fault apportion to criminal third parties is less than the total apportioned to owners, occupiers, security contractors, or others who did not engage in wrongful conduct. If the jury fails to apportion a reasonable degree of fault to the criminal third party, the verdict must be set aside, and a new trial on liability and damages must be ordered.
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Exemptions to Landowners
SB 68 creates multiple exemptions where a landowner shall not be liable if:
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The injured person is a trespasser,
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The injury did not occur upon the premises,
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If the crime that caused the injury occurred during an eviction,
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If the injured person on the premises intended to or was engaged in the commission of a crime,
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The premises were a single-family home, or
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The landowner makes a reasonable effort to provide information to law enforcement (911 or otherwise) about a particularized warning they received.
If the landowner is able to prove any of these, it will serve as a complete bar to the plaintiff.
Limits on “Anchoring” of Noneconomic Damages
Under SB 68 lawyers are now limited in what they can say to a jury about the value of non-economic damages like pain and suffering. Under the new rule, parties are not allowed to mention a specific dollar amount for non-economic damages until the close of evidence.
That means no one—plaintiff or defense—can suggest what pain and suffering is “worth” until closing. But once closing arguments begin, attorneys can talk about the value of non-economic damages—as long as it is “rationally related to the evidence of noneconomic damages and shall not make reference to objects or values having not rational connection to the facts proved by the evidence.”
In the past, lawyers have used analogies to help juries think about non-economic damages. One common example was to describe the plaintiff’s injuries like a job posting: “What would someone have to pay you to live with this kind of pain every day?” Others compared the value of the plaintiff’s suffering to professional athlete contracts to drive home the losses' significance. Under SB 68, arguments like those are likely off the table.
In closing, you can still argue for non-economic damages, but your argument has to be rationally related to the evidence—what the plaintiff went through, what the doctors said, and how their life has changed.
The End of Collateral Source
SB 68 has explicitly ended the collateral source rule. Plaintiffs now can only recover past medical bills only up to what either they or their insurer (or other payor) actually paid, plus any still-owed amounts, for “medically necessary” and “reasonable and customary” treatment. This change effectively abolishes Georgia’s collateral source rule for medical expenses. For plaintiffs, especially those with health insurance, this means the at-fault party no longer has to pay the full sticker price of medical care – only the discounted insurance rate or out-of-pocket portion.
This will likely lead to plaintiffs who are insured claiming significantly less in medical damages than an uninsured client with the same bills—giving a discount to defendants because a plaintiff is insured.
In terms of discovery, this means that information regarding health insurance, government workers’ compensation programs, letters of protection, or any other healthcare arrangements are relevant and discoverable in a case. Additionally, if an injured party is referred to a healthcare provider under a letter of protection, the identity of the person who referred the plaintiff to that provider is also relevant and discoverable.
Seatbelt Evidence Is Coming In
Under SB 68, whether an injured person was wearing a seat belt may be admissible on the issues of negligence, comparative negligence, causation, assumption of the risk, or apportionment of fault or for any other reason that can diminish the plaintiff’s recovery. The admissibility of seatbelt evidence is not automatic as the statute uses the word “may” which may indicate that its admissibility will be at the discretion of the court and it is subject to other rules of evidence.
Discovery Stays and Voluntary Dismissals
SB 68 changes civil procedure rules relating to early responsive pleadings and voluntary dismissal of cases. One significant change is an automatic stay of discovery when a motion to dismiss is filed early. If a defendant files a motion to dismiss before or at the time of answering the lawsuit, all discovery is paused until the court rules on the motion. Under the prior rule, discovery could resume after 90 days even if the motion was undecided; the new rule extends the stay beyond 90 days unless a judge, for good cause, lifts it. This means if the defense moves to dismiss (for example, on jurisdiction or pleading sufficiency asking for a more definite statement), a plaintiff may be unable to depose witnesses or gather evidence for an extended period.
Another procedural change restricts plaintiffs’ ability to dismiss and refile cases voluntarily. Georgia’s “anytime before first witness is sworn” rule is replaced with a rule mirroring federal practice. Now, once the defendant has served an answer, the plaintiff has 60 days to dismiss. Otherwise, it cannot unilaterally dismiss the case without prejudice. After that point, dismissal requires either all parties’ consent or a court order. A dismissal that is compliant with these rules will be a dismissal without prejudice so long as it is the first one – the two-dismissal rule still stands.
Mandatory Bifurcation of Trials
Under SB 68, any party in a tort case can elect to bifurcate the trial – separating the proceedings into two phases: one for liability (and apportionment of fault) and another for determination of damages. This means that evidence of injuries or other damages cannot be introduced in the first phase of trial. Trials are now likely to be prolonged due to the party's inability to present all evidence to the jury at once.
There are some exceptions. First, in a case dealing with a minor who suffered from sexual offenses and would suffer psychological or emotional distress from testifying more than once, the court can reject bifurcation. And second, if the amount in controversy is less than $150,000.
Limits on Attorneys’ Fee Recovery
SB 68 also targets how plaintiffs recover litigation expenses by adding O.C.G.A. § 9-11-16 to the Georgia Code. First, it introduces a “no double-dipping” rule for attorney’s fees and costs. A new Code section will prohibit recovering the same attorneys’ fees or expenses more than once under different statutes. For example, if two different statutes each could award fees for the same work, a plaintiff can’t stack them to get a double recovery unless a statute explicitly allows it. Additionally, this new section codifies that contingency contracts are not admissible to determine the reasonableness of attorney’s fees.
Filing Now vs. Filing Later
It makes no difference whether you file before or after SB 68 goes into effect because the determining factor is not the filing date but rather when the claim happened. The bill explicitly delineates which portions will retroactively apply and which will apply immediately when it is signed into law.
The portions regarding Negligent Security and Collateral Source will only apply to claims that occurred on or after the bill's implementation date. Everything else will go into effect as soon as Governor Brian Kemp signs it. The bill has no “grandfather” provisions, which means that regardless of when you file, the new provisions of this bill will go into effect.
