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July 17, 2015
The Georgia apportionment statute allows the trier of fact to “consider the fault of all persons or entities who contributed to the alleged injury or damages.” O.C.G.A. §51-12-33(c). The Georgia Supreme Court issued a recent decision on this issue in Zaldivar v. Prickett, Case No. S14G1778 (decided July 6, 2015). Zaldivar arose out of a traffic accident and each party blamed the other for the collision. Defendant also claimed that plaintiff’s employer, Overhead Door, was at fault for negligently entrusting Prickett with a company truck.
Prickett filed a motion for partial summary judgment on the issue of whether the apportionment statute requires any assignment of responsibility to Overhead Door. The trial court granted the motion and rejected attributing fault to the employer and the Georgia Court of Appeals affirmed. The Georgia Supreme Court reversed holding that the apportionment statute was:
[M]ost naturally and reasonably understood to require the trier of fact to consider any breach of a legal duty that sounds in tort for the protection of the plaintiff, the breach of which is a proximate cause of the injury about which he complains, whether that breach is attributable to the plaintiff himself, a defendant with liability or another.
Opinion pp. 12-13. The significance of this is that the trier of fact can attribute fault to a nonparty when the nonparty is shown to have committed a tort against the plaintiff that was a proximate cause of his injury. The Court also concluded that negligent entrustment of an instrumentality can be the proximate cause of an injury to the person to whom the instrumentality was entrusted. Of even more significance, the Court held that the “fault” of a nonparty can be considered regardless of whether the nonparty has liability to the plaintiff. The Court made clear that “fault” is dependent upon the commission of the act that is the proximate cause of the injury to the plaintiff and not whether the nonparty can be found liable to the plaintiff.
The Zaldivar decision is a win for Plaintiffs and expands the potential parties who may be at fault under the apportionment statute. The practical implication of this holding is that even if a named defendant is found to be without liability to the plaintiff as a result of an affirmative defense or immunity, he may still be at “fault” under the apportionment statute. A copy of the decision can be found here.