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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.
You see this possibility show up in a number of ways. There are solid cases against Tractor Trailers for being parked where they should not be and generally speaking for daytime crashes, it does not work out well, but for any crash where visibility is questionable, it can. It’s harder to argue that once you lose control the vehicle you slide into is to blame even when they should not be where they are.
In a recent Georgia car accident decision, a court considered a fatal car accident where the plaintiff tried to target the SUV that their car spun out and struck in addition to the actual at-fault vehicle that struck them. The accident happened when one defendant’s truck rear-ended a sedan. The sedan spun out and hit an SUV. It was July 2010, and a woman was driving north on Georgia Highway 10, a divided four-lane highway. Her mother was next to her, and her almost-two-year-old was in a baby seat that police investigators later decided wasn’t properly secured to the car. The driver and Mother were injured and the baby had multiple skull fractures and died later that day in the hospital. The police had a specialized accident reconstruction team that determined in a written report that the truck driver had caused the crash by following too closely. It didn’t blame either the sedan driver or the SUV driver.
When the accident happened, one defendant was driving a truck with a trailer attached just behind the woman. An ambulance flashing its sirens came up in the left-hand lane. The SUV driver had just merged onto the highway when he heard the ambulance. Only after the ambulance passed did he pull into the inner lane to pass the truck. The sedan driver heard the ambulance and came to a stop. It wasn’t clear later whether she pulled totally onto the shoulder, or whether some of her car stayed in the lane of travel. The truck driver saw the sedan stop and tried to go right to avoid hitting her, but he wasn’t able to stop or move to the right, and he rear-ended her, crushing the back of her car and pushing the truck into the rear passenger compartment.
As the SUV driver passed, he saw the sedan slowing and realized the truck would hit it. He steered into the median to avoid getting involved in this crash, but when the truck hit the sedan, the force of it pushed the sedan and spun it around, causing it to collide with the SUV before stopping in the median.
The sedan driver, her mother, and the estate of the baby sued the truck driver and the SUV driver for personal injury and wrongful death. The plaintiffs claimed that the SUV’s decision to closely trail the ambulance rather than move over and stop or slow for the ambulance should be considered negligence and resulted in the SUV crashing into the sedan. The plaintiffs also argued he was negligent per se in failing to yield to an emergency vehicle, following too closely, speeding, reckless driving, negligence, and homicide by vehicle. The SUV driver moved for summary judgment arguing they did nothing wrong but the trial court denied this motion and the SUV driver appealed.
The appellate court explained that the plaintiffs put forward two causation theories, one being that the SUV driver followed too closely, which stopped the truck driver from going left to avoid the crash. The other theory was that when the truck hit the plaintiff’s stopped vehicle, it shoved it from its stopped position into the path of the SUV, which was closely following the ambulance. The impact then contributed to the plaintiffs’ injuries and the baby’s death.
The appellate court explained that proving proximate (legal) cause requires showing a causal connection. There has to be a reasonable basis to conclude it’s more likely than not that the defendant’s actions were a cause in fact of what happened. A mere possibility of that causation isn’t enough. The SUV driver claimed there was no evidence that his negligent actions contributed to the first collision (the rear-ending), and there also was no evidence that his actions legally caused injuries to the mother and baby in the second collision. The appellate court noted that the truck driver testified that the SUV had not stopped him from moving left to change lanes, but only that as he hit his brakes, they locked, pulling him right, so he went onto the right shoulder rather than into the left lane to avoid crashing.
The appellate court found that the undisputed evidence showed the SUV driver’s actions didn’t cause the collision. It also noted that there was no direct evidence of causation related to the baby’s death and the mother’s injuries. There was also no clear evidence about which of the crashes caused or was more likely to have caused the baby and mother’s injuries. Following the holding of Berry v. Hamilton, the court reasoned that when a party relies on inferences to prove a point, the inferences must tend in a legal way to establish the conclusion sought, and they must also render less probable any inconsistent conclusions. If, as in the plaintiff’s case here, they only raise conjecture, there can’t be a recovery. The judgment was reversed.
The Atlanta auto accident attorneys at Christopher Simon Attorney at Law have substantial experience and are ready to help you with your possible case. Feel free to contact us for a complimentary case consultation if you are interested in learning more about the difficulties you may encounter and the options you may have.