United States: All Means All: No Tortfeasor Is Safe From Apportionment

Last Updated: April 5 2018
Article by Lisa N. Higgins

Commonly known as the "apportionment statute," O.C.G.A. §51-12-33 requires that the trier of fact divide responsibility for an injury among all those that contributed to it – parties and nonparties alike. Practically, the apportionment statute allows defendants to decide whether they want to try and add a third party or not.  Attorneys and their clients should continue to analyze and evaluate every case with an eye toward identifying other potential tortfeasors whose actions or inactions may be a proximate cause of at least part of a plaintiff's claimed damages.  Once another possible tortfeasor is identified, attorneys and their clients can weigh the options of moving to add that party or simply giving notice under the apportionment statute of nonparty liability.  As the Georgia Courts have been extremely liberal in permitting apportionment to nonparty tortfeasors, even in light of immunity issues, defense counsel can use this to assure that their clients go to trial having the best chance of paying only their fair share of plaintiff's damages.   

"The purpose of the apportionment statute is to have the jury consider all of the tortfeasors who may be liable to the plaintiff together, so their respective responsibilities for the harm can be determined."  Couch v. Red Roof Inns, Inc., 291 Ga. 359, 365 (2012).  After dividing the responsibility, the trier of fact must apportion any damage award among the tortfeasors with liability, limiting the amount to the extent each has been assigned responsibility for the harm by the trier of fact.  Specifically, the statute states, in pertinent part,

(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.

O.C.G.A. §51-12-33(c)-(d)[emphasis added].  Subsection (c) specifically instructs the Court to consider the "fault of all persons or entities who contributed to the alleged injury or damages".  Since its enactment, Georgia Courts have increasingly expanded the interpretation of who can be considered a non-party for purposes of apportioning fault at trial under this statutory scheme.  In Zaldivar v. Prickett, 297 Ga. 589 (2015), the Georgia Supreme Court concluded that the apportionment statute requires the contemplation of the "'fault of all persons or entities who contributed to the alleged injury of damages,' regardless of their liability or potential liability to the plaintiff in tort."  Id. at 597 [emphasis added].  The Court went on to explain that a tortfeasor is a tortfeasor even if he has a valid affirmative defense or immunity.  Although such a defense or immunity may ultimately cut off liability to the plaintiff, a tortfeasor's actions may still be a proximate cause of the plaintiff's injuries or damages.  As such, the Zaldivar Court specifically held that the apportionment statute permits consideration by the trier of fact of the "fault" of any tortfeasor, regardless of whether he has a meritorious defense or claim of immunity from ultimate liability.  As such, the trier of fact must consider all persons or entities who have breached a legal duty to the plaintiff which includes not only the plaintiff and defendants with liability 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."

Based on recent cases that have come out interpreting the apportionment of fault of nonparties under this statutory scheme, Georgia Courts have not yet limited who can be a nonparty as long as the defendant has given proper notice under the statute and has a rational basis upon which to apportion fault.  Georgia Courts have consistently interpreted this to include all persons or entities, regardless of whether they could have been parties, and regardless of any defenses, immunities or relationships to the parties themselves. The Courts have permitted nonparty apportionment of fault to an employer who had immunity under the Workers' Compensation Act, to an unknown criminal assailant who committed an intentional tort on the defendant's property, to the employer of the plaintiff for negligent entrustment of the vehicle he was driving at the time of the accident, and even to the spouse of a plaintiff who was the driver of the vehicle despite Georgia's spousal immunity doctrine. 

In Couch v. Red Roof Inns, Inc., 291 Ga. 359 (2012), plaintiff brought suit against a motel she was staying at after she was attacked by a criminal assailant and suffered injuries.  The defendant motel gave notice under O.C.G.A. §51-12-33 of apportioning non-party fault to the criminal assailant.  The Northern District of Georgia certified a question to the Georgia Supreme Court questioning the applicability of apportioning fault to the criminal assailant for intentional acts under O.C.G.A. §51-12-33.  The Court held that fault could be apportioned to the nonparty criminal assailant for the intentional acts.  In Walker v. Tensor Machinery, Ltd., 298 Ga. 297 (2015), the Georgia Supreme Court held that a jury may assess a percentage of fault under O.C.G.A. §51-12-33(c) to a nonparty employer even though it has immunity under the Workers' Compensation Act.  And, in Barnett v. Farmer, 308 Ga. App. 358 (2011), the Georgia Court of Appeals held that trier of fact could apportion damages under O.C.G.A. §51-12-33(c) to the spouse of the plaintiff who was driver of vehicle, notwithstanding Georgia's interspousal immunity doctrine.  The Georgia Supreme Court has also rejected policy arguments by plaintiffs that because their damages are indivisible, they cannot be apportioned.  In Couch v. Red Roof Inns, Inc., 291 Ga. 359 (2012), the Georgia Supreme Court stated that such arguments are unfounded.  "While the injury may be singular, the damages flowing from that injury may be apportioned by statute among the tortfeasors responsible for causing it."  Couch, 291 Ga. at 366.

However, as the Georgia Courts continue to expand the universe of nonparty tortfeasors to whom liability can be apportioned, we can expect that plaintiffs may begin filing suit against more defendants in an attempt to have all possible tortfeasors in one lawsuit, potentially making cases more complex and, as a result, more expensive to defend.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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