Apportionment of Damages in Georgia, Zaldiver v. Prickett

Georgia’s modified comparative negligence system was radically altered by the tort reform legislation enacted in 2005.  The legislation was rammed through the General Assembly so fast there was none of the usual vetting by the judiciary committees and the resulting laws, effective February 16, 2005, were poorly drafted and procedurally confusing.  Until 2005, apportionment of damages was permitted in Georgia only in those cases against “more than one person” where “the plaintiff is himself to some degree responsible for the injury or damages,” O.C.G.A. § 51-12-33.

O.C.G.A. § 51-12-33 now provides:

“(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

(d) (1) 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.

(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.

(f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.

(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.”

Recently, in Zaldiver v. Prickett, 2015 Ga. LEXIS 547 (7/6/15), the Georgia Supreme Court held that fault could be allocated to the plaintiff’s employer on a negligent entrustment theory.   It was an odd case, as the defendant contended the plaintiff’s employer was negligent in entrusting the vehicle to the plaintiff.  The Supreme Court held that negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted, and in the process created a new tort in Georgia, “first party negligent entrustment.”

Under O.C.G.A. § 51-12-33 fault can now be apportioned to entities the plaintiff cannot recover from, such as his or her employer, in spite of the clear language in subsection (b) that the trier of fact can “apportion its award of damages among the persons who are liable.”  An employer simply cannot be held “liable” for damages sustained by its employee in Georgia under O.C.G.A. § 34-9-11.  See dissent by Justice Benham.  However, the majority found otherwise, but to reach that conclusion, they had to overrule Ridgeway v. Whisman, 210 Ga. App. 169 (1993), and hold that negligent entrustment of a vehicle or some other instrumentality to a minor or inexperienced person could result in liability if that person is injured by is use.

Most intriguing, however, are hints by Justice Blackwell that the statute might not apply in all tort cases.  What did he mean by the comment “in the cases to which the statute applies” (f.n.3)?  Does that mean that damages cannot be apportioned unless “an action is brought against more than one person for injury to person or property” and “the plaintiff is to some degree responsible for the injury or damages claimed”?  In other words, if a lawsuit was brought against a single defendant allocation of fault to non-parties would not be permitted?

 

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