Georgia’s case law on apportionment of fault to a non-party continues to evolve. In Zaldivar v. Prickett, S14G1778 (Ga. July 6, 2015) the Georgia Supreme Court attempted to clear up how apportionment would apply. The apportionment statute provides 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 underlying facts are as follows: 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 not breached any duty owed to Prickett and had not caused his injuries and therefore did not “contribute” to the injuries as contemplated by the statute. The Court of Appeals agreed with the trial court in a 6-1 decision, finding that there was no causal connection between the alleged negligent entrustment and the injuries claimed. The Georgia Supreme Court reversed the Court of Appeals on the negligent entrustment claim and found that a jury could consider the fault of the non-party employer with respect to negligent entrustment.
With respect to the negligent entrustment claim, the Court disapproved of at least two specific cases regarding negligent entrustment. It noted that comparative negligence, or apportionment, is a separate issue from whether there was a causal connection between the alleged wrongdoing and the injury to the plaintiff. The Court held that negligent entrustment, if proved, is a tort and therefore could be a proximate cause of a plaintiff’s injuries. In the Zaldivar case it means that a jury could consider the fault of the plaintiff’s non-party employer for its negligent entrustment of a vehicle to plaintiff, its employee.
The Court, in its consideration of the Georgia Apportionment Statute, O.C.G.A. § 51-12-33, found the Court of Appeals was correct in determining the statute requires the “trier of fact to consider the ‘fault’ of a nonparty only when the nonparty is shown to have committed a tort against the plaintiff that was a proximate cause of his injury.” Zaldivar, at *4. The Court also noted that the statute “permits consideration, generally speaking, of the ‘fault’ of a tortfeasor, notwithstanding that he may have a meritorious affirmative defense or claim of immunity against any liability to the plaintiff.” Id., at * 17. The Court concluded by finding that the statute, in cases in which it applies, requires that a jury (or other trier of fact) “consider the fault of all persons or entities who contributed to the alleged injury or damages.” Id. at *21, quoting O.C.G.A. § 51-12-33(c). The Court held that this “includes not only the plaintiff himself and defendants with liability to the plaintiff, but also every other tortfeasor whose commission of a tort as against the plaintiff was a proximate cause of his injury, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff.” Id. at * 21.
Overall this case seems to be beneficial to parties seeking to apportion fault to non-parties as the Court’s conclusion seems to strengthens the use of the apportionment statue. 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 nonparty 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.