When Two Cars Cause a Crash, Apportionment Rears its Head

In 2005, the Georgia legislature passed Georgia law O.C.G.A. § 51-12-33, the apportionment of damages statute.  The law allows juries to apportion damages in personal injury cases between the plaintiff (if the plaintiff is negligent), the defendants and non-parties - people or companies that were not included in the lawsuit.   

Ever since, the plaintiff and defense bar have been debating what exactly the law does and how it works.  What non-parties can a jury apportion damages to?  And what evidence is required to apportion damages to a non-party? With the Georgia Supreme Court’s recent decision in Zaldivar v. Prickett, we finally have our answer.  

In Zaldivar, the Supreme Court ruled that the jury may apportion damages between the plaintiff, the defendants and any non-party whose negligence injured the plaintiff, regardless of whether or not they could be sued.   You might ask why wouldn’t the attorneys have included all responsible people and businesses in the lawsuit in the first place?  Why would they leave out anyone who was responsible for their client’s injuries?  Here’s why: the law gives some immunity from lawsuit.  

For instance, if a worker is injured on the job, he cannot sue his employer because his employer has immunity from lawsuits by injured workers.  Instead, the worker must make a worker’s compensation claim. Government officials and employees often have immunity from lawsuits, even when they negligently injure someone.  Though it was not the specific issue before the Supreme Court, the Court’s ruling makes clear that the jury will be allowed to apportion damages to non-parties like employers and government officials that have immunity from lawsuits.  And we’ll have an answer from the Court itself on that exact issue soon enough.  

The Supreme Court recently heard arguments in the case of Walker v. Tensor Machinery.  In that case, a man was injured on the job when his foot was crushed by a malfunctioning piece of equipment.  The man filed a lawsuit against the equipment manufacturer but could not include his employer in the lawsuit since the employer has immunity.  The manufacturer requested that the jury apportion damages to the man’s employer for negligently installing and maintaining the equipment and the trial judge asked the Supreme Court to decide the issue.  

Our prediction?  The Supreme Court allows the jury to apportion liability to the employer if the equipment manufacturer proves they were negligent.  The Court should issue its opinion in the next several months.
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