The Georgia law regarding apportionment of liability in tort cases became more clear this month with the Georgia Supreme Court’s decision in Zaldivar v. Prickett, et al. Before the Court was the question of whether a non-party which is not “liable” to the plaintiff as a matter of law could be considered by the trier of fact as a non-party responsible, in whole or in part, for the “fault” which caused the underlying injury thus reducing the liability of the defendant by the percentage of that fault under O.C.G.A. § 51-12-33, commonly known as the Georgia Apportionment Statute. The Court’s answer was “Yes”.

The Georgia Apportionment Statute provides that in tort cases the trier of fact may divide responsibility for an injury among all those whose combined “fault” produced that injury. After determining the fault share, the trier of fact is required to apportion any award of damages among the parties and non-parties in accordance with the portion of fault ascribed to each.  In Zaldivar, the plaintiff was injured in a vehicle collision while operating a truck provided to him by his employer. The defendant (the other driver) intended to prove the plaintiff’s employer was negligent via the negligent entrustment doctrine and thus a non-party responsible for “fault” which caused plaintiff’s injury.  In opposing the addition of this non-party, plaintiff asserted his employer could not be considered a non-party under the Apportionment Statute because Georgia law makes clear that negligent entrustment cannot be a proximate cause, and thus not the “fault” of an injury to the one to whom the vehicle was entrusted. (You cannot blame the owner of the vehicle for letting you drive his vehicle just because you crashed it into a tree even if he knows you were unfit to drive.)

In a carefully worded opinion the Georgia Supreme Court distinguished between “fault” and “liability”, holding one can be responsible for “fault” even if not “liable” to the plaintiff. Thus, if  the defendant is able to prove that a non-party’s fault contributed to the cause of the injury, the trier of fact can assign a portion of the damages to the non-party even if the non-party cannot be held liable to the plaintiff as a matter of law; for example, by a right to immunity. The burden to the defendant is to prove fault under the traditional standard for establishing that the non-party did, in fact, commit a tort and that tort contributed to the cause of the injury.

Just a week following the Zaldivar decision, the Georgia Supreme Court heard argument in another case interpreting the Apportionment Statute. In this second case, the Georgia Supreme Court is being asked to decide if an employer can be considered a non-party under the Apportionment Statute even though the state Workers’ Compensation Law bars a direct claim by the employee against the employer for the underlying tort. So if you operate a business in Georgia, stay tuned; we will get more detail from the Georgia Supreme Court on how the Apportionment Statute operates to assign fault, and thus divide responsibility, for damages in tort cases. 

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