March 02, 2013 BY Andrew Horowitz
Apportionment Against Parties And Non-Parties Under O.C.G.A. § 51-12-33
In 2005, the Georgia General Assembly amended O.C.G.A. § 51-12-33, the statute governing joint liability among tortfeasors. The amended statute arguably abolished joint and several liability in favor of mandatory apportionment amongst all parties – plaintiffs, defendants, and non-parties alike.
A. How the Statute Works
The statute establishes a four-part procedure for apportioning damages.
1. The jury apportions fault to the plaintiff.
In cases in which the plaintiff’s comparative fault is at issue, paragraph (a) requires juries to first determine the plaintiff’s percentage of fault. The trial court must then reduce the plaintiff’s damages in proportion to his or her percentage of fault. Although the Georgia appellate courts have not interpreted this language, it is evident that, in cases involving a plaintiff’s comparative fault, a jury will need to complete a special-verdict form, identifying the plaintiff’s total damages as well as his or her percentage of fault.
2. The trial judge reduces the plaintiff’s award accordingly.
Under paragraph (g), the plaintiff shall not be entitled to recover any damages if he or she is 50 percent or more responsible for the injury or damages claimed. If the plaintiff’s liability is less than 50 percent, however, then the judge shall reduce the plaintiff’s recovery in proportion to his or her damages.
3. The jury apportions the remaining damages, if any, against the defendants.
Following any necessary reduction against the plaintiff, subparagraph (b) requires the jury to apportion damages against each alleged joint tortfeasor based on “the percentage of fault of each person.” In essence, this provision abolishes joint and several liability against defendants, and mandates apportionment among responsible persons or entities in all cases. Additionally, it provides that damages apportioned against joint tortfeasors “shall be the liability against each person against whom they are awarded,” and “shall not be subject to any right of contribution.”
4. The jury apportions damages against all responsible non-parties, assuming the statute’s notice provision was satisfied.
In addition to mandating apportionment against parties, the amended statute also requires the jury to apportion fault against non-parties as well. Paragraph (c) of the amended statute codifies this empty-chair defense, irrespective of whether the non-party was or could have been named as a party to the suit. To invoke the empty-chair defense, paragraph (d) requires a defendant to give at least 120 days’ notice before trial that a non-party was wholly or partially at fault. Notice is not required if the non-party entered into a settlement with the plaintiff before trial.
B. How the Georgia Courts Have Interpreted the Apportionment Statute
The Georgia’s appellate courts have issued several significant decisions interpreting and clarifying the apportionment statute’s scope and reach.
1. The apportionment statute applies even where there is no evidence of the plaintiff’s comparative fault
In Cavalier Convenience, Inc. v. Sarvis (2010), the Georgia Court of Appeals interpreted the statute to permit apportionment against non-parties even if the plaintiff is without fault. In reaching its decision, theCavalier Court held that it was the Georgia Legislature’s clear intent to apportion damages among persons who are liable according to their respective percentages of fault. Under the statute’s old version, a jury could apportion fault only when it also found the plaintiff comparatively negligent as well. But the new statute permits juries to apportion damages against parties and non-parties after determining the plaintiff’s degree of fault, “if any.” The Cavalier Court held that this language mandated apportionment against non-parties even if the plaintiff is without fault.
2. Juries can apportion fault against criminal assailants, notwithstanding premises owners’ nondelegable duty to protect invitees against foreseeable harm on their property
In Couch v. Red Roof Inns, Inc. (2012), the Supreme Court of Georgia held that in a premises-liability action wherein a property owner is alleged to have negligently failed to prevent a foreseeable criminal attack, the jury can consider the “fault” of a non-party criminal assailant, and apportion a percentage of fault to that criminal assailant. In Couch, an unknown person attacked plaintiff in a hotel. Plaintiff sued the hotel for failing to protect him from what he alleged was foreseeable criminal activity, and the hotel sought to have the jury apportion fault to the unknown criminal assailant.
In permitting apportionment against the criminal actor, the Couch Court held that the term “fault” includes both negligence and intentional torts. It further held that 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.” The Georgia Supreme Court subsequently echoed its ruling inAccor North America, Inc. v. Todd (2012), holding that “the actions of a criminal assailant are wholly separate from any action or inaction or a property owner.”
3. The apportionment statute has affected defendants’ rights of contribution against co-defendants
Under the old joint-and-several-liability system, a defendant could seek contribution against alleged joint tortfeasors, and get a set-off against any settlements between the plaintiff and other alleged tortfeasors. InMcReynolds v. Krebs (2012), however, the Supreme Court of Georgia held that, when apportionment is available, a defendant has no right of contribution against an alleged joint tortfeasor. It further held that in order to apportion fault against a non-party, and to get a set-off on amounts paid by the non-party to settle the case, the defendant had the burden to present evidence that the non-party was at fault. In McReynolds, because there was no evidence that the non-party was negligent, the Court rejected the defendant’s attempt to apportion liability against the non-party, and to obtain a set-off of amount paid by the non-party to the plaintiff.
Likewise, in Union Carbide Corp. v. Fields (2012), the Georgia Court of Appeals held that defendants have the burden of proving the fault of non-parties against whom they seek apportionment. That is, the defendant must put forth “some competent evidence” that the non-party in fact “contributed to the alleged injury or damages.” This holding makes apportionment analogous to other affirmative defenses for which the defendant bears the burden of proof. Although there has not been a decision addressing whether a defendant risks waiving an apportionment argument if he fails to raise the argument in his first responsive pleading, theUnion Carbide decision makes clear that it is safer practice for defendants to include apportionment-related defenses in their answers to plaintiffs’ complaints.
4. Apportionment against entities who are otherwise insulated against or immune from tort liability
In Barnett v. Farmer (2011), the Georgia Court of Appeals held that the jury can apportion liability against a non-party who is immune under Georgia’s interspousal immunity doctrine. The Barnett Court’s interpretation of the apportionment statute shows that apportionment applies if a non-party enjoys any type of immunity: “[W]e reject the [plaintiffs’] argument that application of the apportionment to this case violates the interspousal tort immunity doctrine. Our holding in no way requires [the wife] to file suit against her husband, but instead, precludes her from recovering from [the defendant] that portion of her damages, if any, that a trier of fact concludes resulted from the negligence of her husband.” This holding is significant as it arguably permits apportionment against entities who are otherwise insulated against tort liability, such as employers protected under the exclusive remedy provision of Georgia’s workers’ compensation laws, as well as state actors who are protected under principles of sovereign immunity.
5. Defendants cannot apportion where liability is purely derivative
In PN Express v. Zegel (2010), the Georgia Court of Appeals stated that apportionment does not apply when liability is purely derivative. “[W]here a party’s liability is solely vicarious, that party and the actively-negligent tortfeasor are regarded as a single tortfeasor.” Comparative fault statutes (including apportionment) therefore “do not apply” when the defendants’ liability is vicarious. Usually, this scenario applies when the plaintiff sues a defendant-employee along with the employee’s employer, for whom the employee was acting in the course and scope of his employment. For example, if defendant truck driver negligently injures a plaintiff during the course and scope of the truck driver’s delivery work for his employer, liability typically cannot be apportioned between the truck driver and the trucking company.
In sum, the Georgia courts continue to clarify the scope and reach of the apportionment statute. Although many of the significant issues surrounding the statute’s interpretation have been resolved, continued litigation is expected and appellate court guidance on several unresolved issues will still be needed.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley