In Zaldivar v. Prickett, 297Ga.589 (2015), the Supreme Court was faced with deciding whether a defendant could seek to apportion liability for the plaintiff’s injuries to the plaintiff’s employer, who the employee himself could not name as a defendant. In this case, Daniel Prickett sued Imelda Zaldivar to recover for injuries Prickett allegedly sustained in a car accident. Both parties blamed each other for the collision and Zaldivar filed a Notice of Non-Party Fault as to Overhead Door Company, Prickett’s employer at the time of the collision which was not named by Prickett as a party-defendant in the litigation. At the time of the subject incident, Prickett was driving a truck that Overhead Door had provided to him to enable him to perform his job duties. From Zalvidar’s perspective, Overhead Door was negligent in entrusting Prickett with a company vehicle and, for that reason, it should bear some of the responsibility for any injuries that Prickett sustained.
Prickett argued that O.C.G.A. § 51-12-33, commonly known as the “Apportionment Statute”, should not apply to Overhead Door and Overhead Door should not be named as a non-party at fault because Prickett himself, by reason of operation of other laws or existing case law in Georgia, could not have sued his employer for negligently entrusting the company vehicle to Prickett. The Court of Appeals agreed and found that Overhead Door should not be placed on the verdict form. However, the Supreme Court has now overruled the Court of Appeals on this point.
In reaching its decision, the Supreme Court discussed in detail the fault element in the Apportionment Statute. In its estimation, the Supreme Court determined that the Apportionment Statute’s use of the term “fault” permits the jury to apportion liability to any non-party person or entity as long as such person or entity is shown to have committed a tort against the plaintiff which was a proximate cause of the injury. In the context of this case, because negligent entrustment of a vehicle can be a proximate cause of an injury to a person to whom a vehicle was entrusted, Overhead Door, Prickett’s non-party employer, should have been allowed on the verdict form. Significantly, the fact that Overhead Door likely could not have been sued by Prickett for negligently entrusting a vehicle to him does not prevent the employer from being named by the defendant as a responsible non-party under the Apportionment Statute. Furthermore, the Supreme Court pointed out that even if a person or entity is immune from suit for some other reason, such as by operation of some other statute granting that person or entity immunity from suit, that immunity would not prohibit that person or entity from being considered a “tortfeasor” or “party at fault” for purposes of apportioning fault.
As indicated in the Supreme Court’s analysis above, the focus remains on making each person or entity accountable only for such party’s proportionate share of the damages caused by the breach of that party’s duty to the injured party. Therefore, even though the Plaintiff’s bar has sought to roll back portions of the of the 2005 Tort Reform, the Supreme Court has, on this point, declined the invitation to do so.