By Joseph A. White
On July 16, 2014, the Georgia Court of Appeals held, in Zaldivar v. Prickett, that a defendant cannot apportion fault to a non-party unless the non-party’s conduct legally contributed to the plaintiff’s injury—a significant victory for the plaintiff in that case and for the plaintiff’s bar generally.
At issue was Code Section 51-12-33(c), a provision of Georgia’s Apportionment Statute, which the State Legislature enacted in 2005 as part of tort reform. That provision allows a defendant to blame a “non-party”—i.e., a person or company not a party to the lawsuit—who/which allegedly contributed to the plaintiff’s injury. Specifically, the provision states that “[i]n assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injuries 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) (emphasis added). A defendant who wants to blame a non-party under this provision gives the plaintiff “Notice of Fault of Non-Party” and then seeks to add the non-party to the verdict form. A jury can then reduce an award in proportion to the non-party’s fault. O.C.G.A. § 51-12-33(d)(1).
The question that Zaldivar answered is what does it mean to “contribute” to the plaintiff’s damages for purposes of apportioning “fault” to a non-party? The case involved a disputed liability car wreck between the plaintiff, Prickett, and the defendant, Zaldivar. Prickett worked for Overhead Door and was driving a company vehicle when the wreck happened. Evidence showed that Overheard Door had received prior complaints about Prickett’s driving. Zaldivar therefore sought to blame Overhead Door for “negligently entrusting” Prickett with the company vehicle. In other words, Zaldivar argued that the jury should apportion some fault to Overhead Door, since it allowed Prickett to drive the company vehicle knowing that it had received prior complaints about his driving.
The trial court and Court of Appeals both disagreed. In a 6-1 opinion, the appellate court held that no fault could be apportioned to Overhead Door because the company could not possibly have legally contributed to the collision. As the appellate court observed, “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.” In other words, since Prickett could not hold his employer for legally liable for his injuries, neither could Zaldivar attempt to do so.
A dissenting opinion argued that the majority’s decision defied common sense. The dissent argued that nothing in Code Section 51-12-33indicates the legislature meant to limit non-party fault to only those who could be held legally liable for the plaintiff’s injury. As the dissent argued, “[a]ny determination of whether Overhead Door can be assessed a percentage of fault has nothing to do with assigning liability to Overhead Door for Prickett’s injuries.” Rather, because “Overhead Door plainly has a duty not to negligently entrust others with its vehicles, and a violation of that duty can lead to accidents,” then “[t]he fact that an action by Prickett against Overhead Door might be barred by Prickett’s own contributory negligence or another legal doctrine does not [matter].”
The dissent’s point is logical, but its reasoning would only lead to more uncertainty. Surely even the dissent would acknowledge that there are circumstances in which a non-party’s “contribution” to an injury is so remote or attenuated that it would be unjust to allow the jury to consider apportioning it any fault. The majority’s opinion gives clear guidance—no legal contribution, no apportionment—and whether or not you agree with that decision, it at least give courts and parties some clarity about how Code Section 51-12-33(c) will be applied going forward.
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