Court of Appeals Affirms Decision Denying Determination of Apportionment in Motor Vehicle Accident Case

Although cases involving employer liability based on either direct or vicarious theories of tort law are far from uncommon, the Georgia Court of Appeals recently rendered a decision concerning a novel issue regarding employer liability and O.C.G.A. § 51-12-33 (c) of Georgia’s Apportionment Statute. The case, Zaldivar
 v.
 Prickett (PDF-downloadable link), dealt with whether a defendant in a personal injury suit could invoke O.C.G.A. § 51-12-33 (c) to apportion damages against a non-party employer whom the defendant claimed negligently entrusted the vehicle to the plaintiff.
Zaldivar arose from a motor vehicle accident on October 9, 2009, when the plaintiff and the defendant in this case collided at an intersection. The plaintiff asserted that he was clearing the intersection by turning left after the light turned red, and the defendant claimed that the plaintiff turned left in front of her as she entered the intersection on a yellow light. Both parties were injured in the accident, and it is undisputed the plaintiff was driving his employer’s vehicle at the time of the collision, which took place as the plaintiff was headed to a sales call. A little less than two years thereafter, the plaintiff filed the complaint in this action, to which the defendant answered. Although the defendant had also been injured in this case, she did not assert any counterclaims. However, the defendant did assert non-party fault as an affirmative defense and filed a “Notice of Fault of Non-Party” pursuant to O.C.G.A. § 51-12-33 (d)(1). The defendant asserted that the plaintiff’s employer was at fault by negligently entrusting the vehicle to the plaintiff despite having received several calls in the past complaining about the plaintiff’s driving.

Eventually, the plaintiff moved for summary judgment on this affirmative defense, which the trial court granted. The trial court held that the employer could not be liable to the employee for injuries sustained that were caused by the negligence of the employee or a non-employee third party. Accordingly, since the employer could not be liable to the employee, it followed that the affirmative defense was unwarranted, and the jury would not be able to consider, pursuant to Georgia’s apportionment statute, the employer’s fault for the accident causing the plaintiff-employee’s injuries. The defendant appealed, arguing that the language of  § 51-12-33 (c) permits a jury to make this assessment of fault based on a negligent entrustment theory.
Notwithstanding one dissenting justice’s agreement with the defendant’s position, the remaining justices, with the court sitting en banc for this case, determined that the language of § 51-12-33 (c) unambiguously did not permit apportionment in this action. The court first looked to the language of § 51-12-33 (c), which states, “in assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” In interpreting this provision, the court applied the legal definition of “contributed,” which in the context of negligence is limited to those acts that are causally linked to the injury. With respect to negligent entrustment claims, there is generally no causal connection between the negligent entrustment and the injuries sustained by the person to whom a vehicle was entrusted negligently, since the personal negligence of the person to whom the vehicle was entrusted breaks the causal chain. While the dissent rightfully pointed out that had the defendant in this case filed suit first she could have sued the employer directly for negligence liability and had the liability apportioned, the majority nonetheless found the issue unimportant. In this case, the issue was apportionment for the plaintiff-employee’s injuries, not the injuries of the defendant, who, as noted above, did not assert any counterclaims.
Although the apportionment issue directly addressed in this appeal is unlikely to be raised often, the case nonetheless demonstrates the importance of other decisions that arise in the course of litigation. Specifically, one should sometimes consider being the first mover when an injury occurs, given the benefits that can be reaped from crafting the case rather than responding to it. Furthermore, even if one is a defendant in an action, he or she should always make sure to assert possible counterclaims. Even simple cases involve a wide variety of legal issues and pragmatic considerations. Accordingly, anyone seeking full recovery for his or her injuries should promptly enlist the aid of experienced counsel. The Atlanta motor vehicle accident attorneys at the Law Office of Terrence R. Bethune have extensive experience in all areas of Georgia motor vehicle litigation and can offer you this sort of necessary guidance. Feel free to contact us if you would like a free case evaluation.