dissenting.
Because I believe there is more to statutory construction when Georgia’s common law is at issue than looking through the dictionary of one’s choice, I cannot join the majority opinion. While I agree with the majority that the word “fault” may encompass intentional conduct, I cannot agree with the majority when it opines that the General Assembly intended to eviscerate more than a century of Georgia’s common law simply by using “fault” in OCGA § 51-12-33. Because I believe our case law prevents us from construing a statute to be at *368odds with the common law without an express statement of such an intent from the General Assembly or by necessary implication, I dissent.
“Apportionment of damages is one of the most difficult aspects of damages law, both in concept and in application.” Link and Hertz, Georgia Law of Damages, § 11:1 (2010-2011 ed.). “[Apportionment of intentional and negligent fault is an issue of critical significance” — “the main locus of state comparison controversies-. . .” (Ellen M. Bublick, The End Game of Tort Reform: Comparative Apportionment and Intentional Torts, 78 Notre Dame L. Rev. 355, 358, 387 (2003)), and “The most controversial expansion of comparative fault has been when it is applied to torts that are intentional in nature.” J. Tayler Fox, Can Apples be Compared to Oranges? A Policy-Based Approach for Deciding Whether Intentional Torts Should be Included in Comparative Fault Analysis, 43 Val. U. L. Rev. 261, 274 (2008).
OCGA § 51-12-33, as amended in 2005, provides that a plaintiff seeking damages for injury to person or property is not entitled to receive any damages if the plaintiff “is 50 percent or more responsible' for the injury or damages claimed.” OCGA§ 51-12-33 (g). In an action against one or more persons for injury to person or property, the trier of fact “determine[s] the percentage of fault of the plaintiff” and the judge reduces the amount of damages awarded to the plaintiff “in proportion to his or her percentage of fault.” OCGA § 51-12-33 (a). When an action is brought against more than one person for injury to person or property, OCGA § 51-12-33 (b) requires the trier of fact to apportion its award of damages among the persons who are liable “according to the percentage of fault of each person,” after the reduction of damages required by subsection (a). In its assessment of “percentages of fault,” the trier of fact is to consider “the fault of all persons or entities who contributed to the alleged injury or damages,” regardless of whether the person or entity is or could be named as a party to the lawsuit. OCGA§ 51-12-33 (c). The “negligence or fault” of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than.120 days prior to the date of trial that a nonparty was wholly or partially “at fault.” OCGA § 51-12-33 (d) (1). Damages apportioned under OCGA § 51-12-33 are the liability of each person against whom they are awarded, are not a joint liability among the persons liable, and are not subject to any right of contribution. OCGA § 51-12-33 (b).
Like many of its sister states, Georgia’s statute speaks in terms of apportioning damages among those liable according to the percentage of “fault” of each person. OCGA § 51-12-33 (b). Unlike most other states, however, Georgia’s statute provides no definition for “fault,” a *369key term in the statutory process for apportioning damages. Oregon’s comparative fault statutory scheme8 also does not contain a definition of “fault,” and'the Oregon appellate courts have “gleaned” that fault, as used in the statute, “includes ‘tortious conduct... in which contributory negligence is an appropriate defense’ ” and therefore does not include intentional misconduct since contributory negligence was not a defense to willful or intentional misconduct. Shin v. Sunriver Prepatory School, 199 Or. App. 352, 376 (111 P3d 762) (Or. App. 2005). Other states which have enacted comparative fault statutes have statutorily defined “fault” as limited to acts of negligence,9 to include reckless acts in addition to negligence,10 to expressly exclude intentional conduct, 11 and to expressly include intentional acts.12 State appellate court decisions also reflect differences of opinion as to what “fault” means: Arkansas’s statute defines “fault” to include a litany of conduct13 and has been construed as not including intentional conduct (Kubik v. Igleheart, 280 Ark. 310 (657 SW2d 545) (1983)), while Arizona’s definition containing much of the same conduct14 was construed to include intentional conduct. Hutcherson v. City of Phoenix, 192 Ariz. 51 (961 P2d 449) (1998). Maine’s statutory definition that fault includes “negligence, breach of statutory duty or other act or omission that gives rise to a liability in tort. . .”15 was *370construed as not authorizing a reduction of liability when a defendant’s conduct is intentional (McLain v. Training & Dev. Corp., 572 A2d 494 (Me. 1990)),16 and Utah’s statutory language (“any... act... proximately causing or contributing to injury or damages”)17 was construed as including intentional acts in the comparative fault scheme. Field v. The Boyer Co., 338 Utah Adv. Rep. 10 (952 P2d 1078, 1080) (1998).18
In the absence of a statutory definition, it falls to this Court to determine what the General Assembly intended by its use of the word “fault.” “ ‘[T]he cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.’ [Cit.]” City of Jesup v. Bennett, 226 Ga. 606 (2) (176 SE2d 81) (1970). The statement of legislative intent contained in an uncodified section of the 2005 Tort Reform Act does not clarify what the General Assembly intended in its use of the undefined term “fault.”19 However, we can glean from the legislative use of the disjunctive (“[n]egligence or fault”) in OCGA § 51-12-33 (d) (1) *371that the General Assembly intended “fault” to cover more than mere negligence. The question then becomes — how much more? How far along the spectrum of culpability does “fault” run? Did the General Assembly intend for it to cover strict liability? Breach of warranty? Product liability? Wilful or wanton conduct? Intentional conduct?20
It is a fundamental principle of statutory construction that we give words their plain and ordinary meaning. Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003); OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter____”). A legal scholar has described “fault” as “the mirror of our times:... a fluid term definable only with respect to its surroundings.” F. Stone, Tort Doctrine, 12 La. Civil Law Treatise § 60 (1994 Supp.), quoted in Veazey v. Elmwood Plantation Assoc., 650 So2d 712, 717-718 (La. 1994). The summary of comparative fault statutes found above bears out this observation. See pp. 368-369, supra. Our Court of Appeals, construing “fault” as it is used in OCGA § 17-6-31 (e) (bond forfeiture in criminal proceedings “shall not apply where the prosecuting attorney’s failure to try the charges is due to the fault of the principal”), concluded that “fault” was not a word of art and was to be given its “ordinary and everyday meaning.” A. A. Professional Bail v. State of Ga., 265 Ga. App. 42, 44 (592 SE2d 866) (2004). That court found the “everyday” meaning in Webster’s Third New World Dictionary, which defined “fault” as “failure to have or do what is required...; something done wrongly”; and Black’s Law Dictionary, which defined “fault” as “negligence; an error or defect in judgment or of conduct; any deviation from prudence, duty, or rectitude.” Id. These definitions and the statutory definitions of “fault” enacted by other state legislatures, lead me to conclude that “fault” can cover a wide spectrum of conduct, including but not mandating, intentional conduct, and leave me unable to say “its scope and meaning are palpable and unmistakable. . . .”Hightower v. State, 72 Ga. 482 (1) (1884). Insofar as comparative fault is concerned, we face the same dilemma — did the General Assembly intend “fault” to encompass intentional behavior as well as negligent behavior?
*372I next turn to an oft-used presumption in construing a statute:
All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection with and in harmony with the existing law, . . . and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.
Thornton v. Anderson, 207 Ga. 714, 718 (64 SE2d 186) (1951). See also O’Neal v. State, 285 Ga. 361, 362, n. 3 (677 SE2d 90) (2009); State v. Kachwalla, 274 Ga. 886, 889 (561 SE2d 403) (2002); State v. Tiraboschi, 269 Ga. 812, 814 (504 SE2d 689) (1998); Avnet, Inc. v. Wyle Labs., 263 Ga. 615, 619-620 (437 SE2d 302) (1993). At the time the tort reform acts were passed, both in 198721 and 2005, the common law prohibited the use of intentional conduct in a comparative analysis in tort. At common law, any negligence on the part of the plaintiff which concurred in proximately causing the injury was an absolute bar to the plaintiffs recovery, but the bar did not exist if the defendant acted wilfully and wantonly in inflicting the injury. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 666-667 (88 SE2d 6) (1955). See Macon & Western R. Co. v. Johnson, 38 Ga. 409, 431-432 (1868). “When the defendant’s wrongful act was not only a failure in diligence but was willful or so grossly negligent as to be wanton and reckless[,]” the plaintiffs failure to exercise ordinary care did not defeat a recovery. The Central Railroad & Banking Co. v. Newman, 94 Ga. 560, hn. 2 (21 SE 219) (1894). Stated otherwise, the defendant’s intentional conduct could not be used to reduce or eliminate liability to the plaintiff. The harsh rule of common-law contributory negligence that completely barred a plaintiffs recovery of damages was alleviated when the General Assembly replaced contributory negligence with a form of comparative negligence in which the negligence of the plaintiff was compared with the negligence of the defendant(s) and, if less than that of the defendant(s), could serve to reduce the plaintiff’s recovery of damages in proportion to the degree of fault *373attributed to the plaintiff. Bridges Farms v. Blue, 267 Ga. 505 (480 SE2d 598) (1997); Union Camp Corp. v. Helmy, 258 Ga. 263 (367 SE2d 796) (1988). But, again, a defendant’s intentional conduct precluded the application of comparative negligence. See Flanagan v. Riverside Military Academy, 218 Ga. App. 123, 126 (460 SE2d 824) (1995) (intentional tort); Intl. Assn, &c. Iron Workers, Local 387 v. Moore, 149 Ga. App. 431 (11) (254 SE2d 438) (1987) (wilful tort).
It is the law today, as it was in 1987 and 2005, that “[t]he common-law rules are still of force and effect in this State, except where they have ‘been changed by express statutory enactment or by necessary implication. (Cits.)’ [Cit.]” Fortner v. Town of Register, 27 8 Ga. 625 (1) (604 SE2d 175) (2004). See also Humphreys v. State, 287 Ga. 63 (4) (694 SE2d 316) (2010); Bragg v. Oxford Constr. Co., 285 Ga. 98, 100 (674 SE2d 268) (2009); Avnet, Inc. v. Wyle Labs., 263 Ga. at 618 (2); Robeson v. Intl. Indem. Co., 248 Ga. 306 (1) (282 SE2d 896) (1981). In Fortner, this Court held that the common-law rule had not been preempted by new legislation because the General Assembly, in enacting the new law, did not expressly preempt the law, having stated only that it was changing prior statutory law. 278 Ga. at 626. Similarly, both the Tort Reform Act of 2005 and the Tort Reform Act of 1987 were enacted to change prior statutory law, and neither act included an express preemption of the common law that prohibited a comparative analysis based on intentional conduct. See Ga. L. 2005, p. 1; Ga. L. 1987, pp. 915-916. Furthermore, it is not a necessary implication from the General Assembly’s use of the undefined term “fault,” which can, but does not necessarily include intentional conduct, that the legislature intended to change Georgia’s common law. See Lefkoff v. Sicro, 189 Ga. 554, 565 (6 SE2d 687) (1939) (examine language of statute for “necessary implication”), overruled in part on other grounds, Drewry v. State, 208 Ga. 239, 243 (65 SE2d 916) (1951). See also Humphreys v. State, 287 Ga. 63 (4) (694 SE2d 316) (2010). I conclude that OCGA § 51-12-33 does not preempt the common-law rule that intentional conduct is not a part of a comparative analysis of damages in tort.
The majority sees support in its position in the legislative amendment to OCGA § 51-12-32. See Maj. Op. at 362.22 I see the history of that statute as supportive of my position. The language of exception in OCGA § 51-12-32 upon which the majority shines light (“where a tortious act does not involve moral turpitude”) was added to the statute, not as part of the Tort Reform Act of 1987 or of2005, but *374in 1966 (Ga. L. 1966, p. 433, § 1) and, rather than being a refutation of the common law, actually brought Georgia one step closer to the common law it had statutorily eschewed in the nineteenth century when the General Assembly enacted Section 3008 of the 1863 Code (now subsection (b) of OCGA § 51-12-32). Under common law, a joint tortfeasor had no right of contribution from other joint tortfeasors, and the 1863 Code created a substantive right of contribution. See F. H. Ross & Co. v. White, 224 Ga. 324 (2) (161 SE2d 857) (1968). The General Assembly’s statutory limitation of the right of contribution from joint tortfeasors to only those situations in which there was no moral turpitude/intentional conduct is a recognition of the common-law principles I espouse — intentional conduct is not a part of the comparative analysis of damages in tort. Thus, while the General Assembly had to-make an express statement in OCGA § 51-12-32 to return to the common-law principle, it need not make such an express statement in OCGA § 51-12-33 to continue adherence to the common law that prohibits intentional conduct from being a part of comparative analysis of damages in tort. As Fortner and related cases make clear, it is a departure from the common law that must be stated expressly or by necessary implication.
A related rule of statutory construction requires that a statute in derogation of the common law be construed strictly by the courts. Tampa Investment Group v. Branch Banking & Trust Co., 290 Ga. 724 (1) (723 SE2d 674) (2012); Stanfield v. Glynn County, 280 Ga. 785 (2) (631 SE2d 374) (2006). Since, as shown above, “fault” is a term that can be both narrowly and expansively applied, it must be strictly construed when used in a statute in derogation of the common law. Strict construction precludes construing “fault” to up-end the common law.
In sum, the term “fault,” as used by the General Assembly in OCGA § 51-12-33, is a word whose “ordinary signification” covers a wide spectrum of conduct, including intentional conduct. However, the General Assembly could not have intended to include intentional conduct because to do so would conflict with.the common law, and preemption of the common law requires a clear expression of that intent, something OCGA § 51-12-33 lacks. At the time it enacted OCGA § 51-12-33, the General Assembly was presumed to know of the common-law prohibition of the use of intentional conduct in comparative analysis of tort damages and to know that the common law remained in effect unless the General Assembly stated otherwise. There being no express statement of an intent to preempt the common law and no language from which such a necessary implication follows, I conclude that “fault,” as used in QCGA§ 51-12-33, does *375not include intentional conduct. Accordingly, I answer the first certified question in the negative — the jury is not allowed to consider the “fault” of the criminal assailant and apportion its award of damages among the property owner and the criminal assailant.23
Decided July 9, 2012.Because this Court does not decide a constitutional question if a case can be decided upon other grounds (East Georgia Land & Dev. Co. v. Baker, 286 Ga. 551 (1) (690 SE2d 145) (2010)) and my approach resolves the case on nonconstitutional grounds, because this Court may decline to answer a certified question (see CSX Transp. v. City of Garden City, 279 Ga. 655 (619 SE2d 597) (2005)), and because the constitutionality of OCGA § 51-12-33 was not ruled upon by the trial court (see Lawrence v. State, 268 Ga. 420 (489 SE2d 850) (1997)), I decline to express an opinion concerning the constitutionality of the statute.
I am authorized to state that Presiding Justice Hunstein joins this dissent.
Mykkeltvedt & Loftin, Jeffrey N. Mykkeltvedt, Davis K. Loftin, Deitch & Rogers, Gilbert H. Deitch, Andrew T Rogers, for appellant. Buckley King, Burke B. Johnson, for appellee. Freeman, Mathis & Gary, Jacob E. Daly, Sun S. Choy, Blasingame, Burch, Garrard & Ashley, Andrew J. Hill III, Charles M. Cork III, Thomas A. Eaton, Michael L. Wells, amici curiae.Ore. Rev. Stat. §§ 31.600, 31.605.
See,, e.g., “all actions brought to recover damages for negligence” (10 Del. C. § 8132 (2012)), “caused by the negligence of another” (S.D. Codified Laws § 20-9-2 (2011)).
See, e.g., “one or more acts or omissions that are in any measure negligent or reckless” (Iowa Code Ann. § 668.1 (2012)), Minn. Stat. § 604.01 (2012).
See, e.g., “ ‘[f]aultf shall not include any tort which results from an act or omission committed with a specific wrongful intent” (Miss. Code Ann. § 85-5-7 (1) (2011)); “there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct. . . .” (Conn. Gen. Stat. Ann. § 52-572h (o) (2012)).
See, e.g., “ ‘fault includes acts or omissions that are in any measure negligent, reckless, or intentional . . .” (Alaska Stat. § 09.17.900 (2012)); “ ‘fault’ includes an act, an omission, conduct, including intentional conduct, breach of warranty, or breach of a legal duty, or any conduct that could give.rise to the imposition of strict liability, that is a proximate cause of damage. . . .” (Mich. Comp. Laws Ann. § 600.6304 (8) (2012)); “ ‘Fault’. . . means an act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others.” (Ind. Code Ann. § 34-6-2-45 (2012)).
Ark. Code Ann. § 16-64-122 (c) defines “fault” as “any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages. . . .”
“ ‘Fault’ means an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all of its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification or abuse of a product.” Ariz. Rev. Stat. § 12-2506 (F) (2) (2012).
Maine Rev. Stat. Ann. tit. 14 § 156 (2011).
The Maine court reasoned:
For the comparative fault statute to apply, the plaintiff s negligence to he compared with the defendant’s intentional tort must constitute “fault” as defined under [the statute] to be an “act or omission [of the plaintiff] which... would, apart from th[is] section, give rise to the defense of contributory negligence.” [Cit.] In the case at bar the question thus becomes whether, at common law, contributory negligence was a defense to an intentional tort. . . . We have never recognized contributory or comparative negligence as a defense to the intentional tort of assault and battery and we decline to do so now.
Id. at 496-497 (emphasis supplied).
Utah Code Ann. § 78-27-37 (2) (1998).
The Louisiana Supreme Court ruled that La. C. C. art. 2323 adopted the substantive principle of comparative fault and “left the particulars of its application for the courts to decide.” Veazey v. Elmwood Plantation Assoc., 650 So2d 712, 716 (La. 1994). The court went on to hold that Louisiana’s comparative fault law was broad enough to encompass the comparison of negligent and intentional torts, but that policy considerations led to the conclusion that such comparison was not appropriate between the negligent property owner and the perpetrator of a criminal attack. Id. at 720. See Turner v. Jordan, 957 SW2d 815 (Term. 1997). Tennessee has no comparative negligence statute, so its body of comparative liability law has developed through case law, and for policy reasons it does not permit the comparison of intentional conduct with that of negligent conduct where the intentional conduct is the foreseeable risk created by the negligent conduct.
In the uncodified section, the General Assembly stated it was enacting the legislation in reaction to a “crisis affecting the provision and quality of health care services” in Georgia due to the difficulty Georgia health care providers were having in obtaining affordable liability insurance, which could result in an adverse impact on the health and well-being of Georgia’s citizens. Ga. L. 2005, pp. 1-2, § 1. The Act’s provision of “certain civil justice and health care regulatory reforms” were to “promote predictability and improvement in the provision of health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers.” Id. The General Assembly found that “certain needed reforms affect not only health care liability claims *371but also other civil actions and accordingly provide[d] such general reforms. . . .” Id.
It is apparent the legislature enacted the Tort Reform Act of 2005 to allay the perceived crisis in the provision and quality of health care brought about by the difficulty health care providers were experiencing in obtaining affordable liability insurance, and to make reforms that affected other civil actions in addition to health care liability claims.
In this vein, I find myself facing the same dilemma expressed by the dissent in Slack v. Farmers Insurance Exchange, 5 P3d 280, 289 (Colo. 2000) (Because “fault” is capable of being understood in more than one sense, we must employ other rules of statutory construction to determine whether this language was intended to include intentional tortfeasors).
In the Tort Reform Act of 1987 (Ga. L. 1987, p. 915, § 8), the General Assembly provided that, in an action brought against more than one person and where the plaintiff was to some degree responsible for the injury or damage, the trier of fact had the option to apportion damages among those who were liable and whose degree of fault was greater than that of the plaintiff, and the apportioned damages were not a joint liability and were not subject to any right of contribution.
The statute was most recently amended in 1987, when the legislature added the introductory phrase, “Except as provided in Code Section 51-12-33.. . .”
In closing, I must point out that if the General Assembly enacted this legislation with the belief that it would allow for the efficient and accurate determination by a jury of the respective responsibilities of all the tortfeasors liable for the harm caused a plaintiff, the case before us is a prime example of the statute’s failure. Because the unknown criminal assailants are not parties to this action, any apportionment of “fault” to them has no weight, as far as they are concerned - that apportionment serves only to diminish the apportionment of fault of the tortfeasors before the court. OCGA § 51-12-33 (f) (2) makes it clear that “[wjhere fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or he introduced as evidence of liability in any action.” Rather than an efficient and accurate determination of “responsibilities,” the statutory scheme is inefficient and arbitrary. Where, as here, there are known tortfeasors accused of negligence and unknown criminal assailants guilty of intentional conduct, the statutory scheme, according to the majority, has the jury decide the percentages of fault of the tortfeasors who are parties to the lawsuit by parceling out the “fault” of all involved, regardless of whether they are parties, with judgment entered only against those tortfeasors who are parties. Should the unknown criminal assailants subsequently become known and subject to suit, a second jury will decide the percentage of fault of the criminal assailants by parceling out the “fault” of all -involved, regardless of whether they are parties, with judgment entered only against the criminal assailants since they are the only tortfeasors who are parties in the second lawsuit. Of course, should the multiple criminal assailants become known and subject to suit one at a time, there will be even more juries making a variety of apportionments of fault. There is nothing that prevents the first jury from determining that the property owner/tortfeasor is five percent at “fault” and the absent criminal assailants 95 percent at fault, and the second jury from determining that the criminal assailants/tortfeasors are five percent at fault and the now-absent property owner 95 percent at fault. Under such a scenario, the sum total is that the plaintiff, injured through no fault of his own, is required to pursue at least two lawsuits from which he collects the grand total of ten percent of the damages caused by the tortfeasors. Such a realistic outcome is not efficient, is not accurate, and is not just.