Georgia’s apportionment statute, OCGA § 51-12-33, requires a jury, in some cases, to apportion responsibility for an injury among all those who contributed to it – whether a party to the lawsuit or not – based on each person’s respective share of combined fault. After the apportionment, each defendant’s liability is limited to his or her apportioned percentage. In Zaldivar v. Prickett, — S.E.2d –, 2015 WL 4067788 (Ga. July 6, 2015), the plaintiff, Daniel Prickett (Prickett), sued Imelda Zaldivar (Zaldivar) to recover for injuries that Pricket allegedly sustained in a motor vehicle accident. Zaldivar sought to apportion fault to a non-party, Overhead Door Company, Prickett’s employer, arguing that Overhead Door Company negligently entrusted its vehicle to Prickett. In addition to overruling prior case law precluding, as a matter of law, first-party claims based on negligent entrustment, the court considered whether “fault” can be apportioned to a tortfeasor whose negligence was a proximate cause of the plaintiff’s injury but who is otherwise immune from liability.

The court held that “OCGA § 51-12-33(c) requires the trier of fact in cases to which the statute applies to ‘consider the fault of all persons or entities who contributed to the alleged injury or damages,’ meaning all persons or entities who have breached a legal duty in tort that is owed with respect to the plaintiff, the breach of which is a proximate cause of the injury sustained by the plaintiff.”  Thus, Georgia’s apportionment statute requires the trier of fact to allocate fault not only to the plaintiff and defendants with liability to the plaintiff, “but also [to] 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 the Court’s holding, so long as a defendant can establish that a non-party tortfeasor’s fault was a proximate cause of the plaintiff’s injury, the defendant can ask that the trier of fact apportion a percentage of fault to the non-party, thereby reducing the amount of damages that the plaintiff can recover against the defendant.

In light of the Court’s holding, before making a settlement demand on a party who can be held liable to the plaintiff, a plaintiff pursing a claim in Georgia should consider the damages that a jury may apportion to immune tortfeasors, such as the plaintiff’s employer or governmental agencies, damages that the plaintiff cannot recover from the defendant, and value his or her case accordingly.