Does O.C.G.A. § 51-12-33 allow apportionment of fault to an unidentified contractor?

The Georgia Supreme Court has held that O.C.G.A. § 51-12-33 does allow apportionment of fault to an unidentified criminal assailant, Couch v. Red Roof Inns, Inc., 291 Ga. 359, 361 (2012).  But the Defendant must produce competent evidence of negligence and causation on the part of the nonparty before the jury can consider apportioning fault to a nonparty.  See Union Carbide Corp. v. Fields, 315 Ga. App. 554 (2012), where the Court of Appeals held that:

“ . . . the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact ‘contributed to the alleged injury or damages’” (Emphasis supplied)

315 Ga. App. at 559.

In a premises liability case, the owner of the property will often blame the contractor who built the defective stairs, ramp, etc.  However, in a Georgia case, where the Defendant cannot identify the contractor, or cannot prove what the contractor undertook to do, or cannot produce a contract defining the scope of the work, it is difficult to see how a Defendant can present competent evidence of nonparty fault.   

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