Last month, the Georgia Court of Appeals held that Georgia’s apportionment statute “does not permit the defendant in a motor vehicle personal injury case to include the plaintiff’s employer as a non-party against whom fault can be assessed under the theory of negligent entrustment.” Zaldivar v. Prickett, No. A14A0113, at * 8 (Ga. Ct. App. July 16, 2014). InZaldivar v. Prickett, the plaintiff, who had been driving his employer’s car, sued the defendant for injuries he allegedly suffered as a result of a collision of their two cars. Id. at *2. The defendant identified the plaintiff’s employer in her notice of fault of non-party, asserting that the employer was at fault by negligently entrusting the vehicle to the plaintiff.
The trial court granted partial summary judgment in favor of plaintiff, who moved on defendant’s affirmative defense of non-party fault. Id. at * 3. The Court of Appeals affirmed, holding that fault could not be apportioned to the employer under O.C.G.A. § 51-12-33(c) because it did not contribute to the plaintiff’s alleged injury or damages. Id. at * 6-7. In order for one to contribute to another’s injuries, there must be a causal connection. Id. at * 5. The court held that “[i]n the context of negligent entrustment as alleged in this case, however, that causal connection has been broken because the act of entrusting the truck to [the plaintiff] did not contribute to his injuries.” Id. at *6. The break in the causal chain is what prevents the driver himself from being able to bring a negligent entrustment claim against his employer, and “[a]s such, any negligence by [the employer] in entrusting the vehicle to [the plaintiff] cannot be said to have “contributed” to his injuries or damages, and thus O.C.G.A. § 51-12-33 (c) simply has no application.” Id. at *6-7.
The dissent disagreed, stating that
both Couch and the plain meaning of O.C.G.A. § 51-12-33 support the conclusion that the statute considers two fundamentally different concepts: percentages of fault, in its general sense, for all who contributed to the plaintiff’s injuries; and legal liability for named parties…[I]n addition to the concept of legal liability, the “fault” that is to be considered by the trier of fact when assessing percentages of fault under the apportionment statute is sufficiently broad to include the degree to which [the employer] can be said to have caused the accident that resulted in [the plaintiff’s] injuries even though [the employer] could have no liability to [the plaintiff] himself.
Id. at * 4-5 (Branch, J., dissenting).
The dissent also pointed out that under different procedural circumstances the defendant would have been able to reduce her liability for the plaintiff’s damages by attempting to assign a percentage of fault to the plaintiff’s employer. For instance, had the defendant sued the plaintiff she could have either included the employer as a named defendant or named the employer as a non-party under the apportionment statute. Id. at 1. The dissent continued: “Here, even if [the plaintiff] has no claim against [his employer] because of his own contributory negligence, [the defendant] should not be liable to [the plaintiff] for that portion of [the plaintiff’s] damages that a trier of fact concludes resulted from [the employer’s] contribution to the cause of the accident.” Id. at * 8 (citing Barnett v. Farmer, 308 Ga. App. 358 (2011) (physical precedent only) (jury should have been instructed to apportion any award of damages to the plaintiff passenger wife according to a determination of the percentage of fault of the defendant and the co-plaintiff driver husband, if any, even though the co-plaintiff husband would be protected from liability in a suit by the wife by the interspousal tort immunity doctrine.).
A Petition for Writ of Certiorari has been filed with the Supreme Court of Georgia.
Click here to read the opinion of the Georgia Court of Appeals.