Georgia’s case law on apportionment of fault to a non-party continues to evolve. In Zaldivar v. Prickett, A14A0113 (Ga. Ct. App. July 16, 2014) Zaldivar and Prickett were involved in an automobile accident at an intersection, for which they each blamed the other. Prickett sued Zaldivar, but even though she was also injured, Zaldivar did not file a counterclaim. At the time of the accident Prickett was driving a vehicle supplied by his employer, Overhead Door Company. Zaldivar filed a notice of non-party fault pursuant to O.C.G.A. § 51-12-33 (the apportionment statute), seeking to include Prickett’s employer on the jury verdict form based on the theory that the employer had negligently entrusted Prickett which the vehicle he was driving. The negligent entrustment claim was based upon several anonymous calls to Overhead Door Company about Prickett’s driving. The trial judge denied Zaldivar’s request, finding that the employer had neither beached any duty owed to Prickett and had not caused his injuries and therefore did not “contribute” to the injuries as contemplated by the statute, which provides that when “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.” O.C.G.A. § 51-12-33(c).
The Court of Appeals agreed with the trial court in a 6-1 decision. The Court found that there was no causal connection between the alleged negligent entrustment and the injuries claimed. The Court noted that “liability for negligent entrustment is predicated upon a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless.” (Citation and punctuation omitted.) Id., at * 6. And that generally “negligent entrustment claims brought by or on behalf of an injured driver against the person who supplied that driver with a vehicle are disallowed, because the driver’s own negligence breaks the causal connection between the entrustor’s negligent act and the driver’s injury.” (Citation omitted). Id. The Court concluded by holding that
“even if Prickett himself were determined to be negligent and partially responsible for his own injuries, his own negligence would break the causal connection between any negligent act of his employer Overhead Door in entrusting a vehicle to him and the injury that Prickett sustained. As such, any negligence by Overhead Door in entrusting the vehicle to Picket cannot be said to have “contributed” to his injuries or damages, and thus OCGA § 51-12-33 (c) simply has no application.” Id., at *6-7.
The dissent noted that if Zaldivar had sued Prickett, she could have also sued his Overhead Door Company as a named defendant. Alternatively, Prickett could have attempted to lessen his potential liability and sought to place his own employer on the jury verdict form so the Court’s holding did not make sense.
As this case shows there must be evidence and a causal connection or “contribution” to the injuries and/or damages alleged in order for apportionment to a non-party to be successful, however there are as of now, no clear guidelines on the exact connection and/or evidence required as this area of case law continues to expand and evolve.