April 02, 2015 BY Emily Shuman
Direct Negligence Claims And Developments In Apportionment
The law on apportionment in Georgia continues to develop, most recently in the areas of negligent training, entrustment, and similar claims. This is probably best illustrated with an example fact pattern:
Plaintiff is involved in a motor vehicle collision with defendant truck driver (“defendant driver”) who is in the course and scope of his employment for defendant trucking company (“defendant company”). Plaintiff’s claims are (1) against defendant driver for negligent operation of the truck; (2) against defendant company for defendant driver’s negligence while in the course and scope of employment; and (3) against defendant company for negligently training defendant driver and/or negligently entrusting the vehicle to defendant driver.
It is important to remember that claims for negligent hiring, retention, training, and entrustment are independent from claims such for respondeat superior because they are not based on imputed negligence. See e.g., Ridgeway v. Whisman, 210 Ga. App. 169, 170 (1993). Despite this, such claims have generally not provided an independent basis for liability in certain circumstances.
Generally, when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention. The rationale for this is that, since the employer would be liable for the employee's negligence under respondeat superior, allowing claims for negligent entrustment, hiring, and retention would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer. An exception exists for this general rule, however, where a plaintiff has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee or entrusting a vehicle to such employee. In such case, it cannot be said that the negligence claims against the employer are merely duplicative of the respondeat superior claim. Under these circumstances, the employer is not entitled to summary judgment on the negligent entrustment, hiring, and retention claims. Kelley v. Blue Line Carriers, LLC, 300 Ga. App. 577, 580 (2009), quoting Durben v. American Materials, 232 Ga. App. 750, 751(1) (1998) (citations and punctuation omitted) (emphasis added). See also Mastec North America, Inc. v. Wilson, 325 Ga. App. 863 (2014).
In other words, in Georgia’s prior world of joint and several liability, without a claim for punitive damages, any liability of the defendant company for respondeat superior based on the defendant driver’s negligence would make the company fully liable for the plaintiff’s alleged injuries. Therefore, it was not necessary to also address the issues of negligent hiring, training, and retention.
Now, things are changing. In a recent case, the U.S. District Court for the Middle District of Georgia refused to apply the historic rule in light of plaintiff’s arguments on apportionment in that case. See Little v. McClure, Civil Action No. 5:12-CV-147 (MTT), 2014 WL 4276118 (M.D. Ga. Aug. 29, 2014). Similar to the fact pattern discussed above, in Little, plaintiff sued a tractor-trailer driver, his employer, and related entities following a motor vehicle collision. The complaint included claims for negligent hiring, retention, and training against the employer (“direct negligence claims”). Consistent with Kelley, the employer sought summary judgment on the direct negligence claims based on its admission that the defendant driver was in the course and scope of employment when the incident occurred.
Plaintiff argued, however, that summary judgment for the employer on the direct negligence claims was not proper because joint and several liability was abolished by the apportionment statute. As a reminder, the apportionment statute, O.C.G.A. § 51-12-33, requires that the trier of fact consider the fault of all entities who contributed to plaintiff’s alleged damages. The Court agreed with plaintiff. “[I]t is clear the apportionment statute removes the rationale for granting summary judgment on negligent hiring, retention, and training claims purely based on the employer’s admission of respondeat superior.” Little, at *3.
The Court reasoned that while joint and several liability would have held both the employee and employer fully liable for any damages if respondeat superior applied, the apportionment of fault means that “the employee’s negligence (for which the employer would be liable by virtue of respondeat superior) would be apportioned separately from the employer’s independent negligence” for improper hiring, training, or retention. Little, at *3. Therefore, any liability of the employer may be different than that of the employee, depending on how the trier of fact apportions any damages awarded.
One implication of Little is the potential for a plaintiff to introduce potentially damaging evidence related to the direct negligence claims that would have been kept out when those claims were previously barred by admittingrespondeat superior. This could result in higher verdicts.
Shortly before the opinion in Little, the Court of Appeals of Georgia also issued an opinion that bears on apportionment relating to negligent entrustment but leaves questions about the meaning and implications of the apportionment statute. See Zaldivar v. Prickett, 328 Ga. App. 359 (2014), cert. granted (Oct. 6, 2014). InZaldivar, plaintiff sued defendant after being injured in a motor vehicle collision that occurred when plaintiff was driving a vehicle for his employer. Defendant filed a notice of non-party fault naming plaintiff’s employer arguing that it negligently entrusted plaintiff with the subject vehicle. Plaintiff opposed the notice with a motion for summary judgment which the trial court granted.
The Court of Appeals affirmed summary judgment for plaintiff, holding that a defendant could not apportion fault against a non-party which was plaintiff’s employer because any negligent entrustment of the vehicle to plaintiff did not contribute to plaintiff’s alleged injuries. The Court noted that generally an injured party’s negligence “breaks the causal connection between the entrustor’s negligent act and the driver’s injury.” Id. at 362 (citation omitted). The Court reasoned that, without contributing to the injuries, any negligence by the employer is not encompassed in the “fault” contemplated in the apportionment statute. The opinion suggests, however, that apportionment of fault to a non-party employer may be appropriate under different facts. Moreover, the dissent reasoned that to the extent the employer may have been a concurrent proximate cause of the incident, the apportionment statute provides that any fault should be considered because “fault” is broader than whether one can be liable and any damages should be apportioned accordingly. This decision has been appealed to the Supreme Court of Georgia.
Therefore, while Irequires apportionment, the limited definition of “fault” in Zaldivar precludes apportionment. Accordingly, we will need to wait for the Supreme Court of Georgia to rule on the Zaldivar decision. This will provide further guidance on the impact of the apportionment statute where negligent entrustment or other direct negligence claims are raised, whether involving a non-party as in Zaldivar or a party as in Little. The developments will continue to be important to lawyers and clients who may be presented with apportionment considerations.
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