Apportionment Prospects Narrowed for Defendants
The topic of apportionment is no stranger to our blog; we have written about the subject on several occasions. The Court of Appeals’ July, 2014 decision on the issue of apportionment, Zaldivar v. Prickett, flatly denies defendants the opportunity to ask the jury to apportion damages to a plaintiff’s employer when the employer allegedly negligently entrusted a company vehicle to plaintiff. 2014 Ga. App. Lexis 552, No. A14A0113, July 16, 2014.
In Zaldivar, plaintiff and defendant got into a left-turn accident in an intersection and both parties blamed each other for causing the accident. Plaintiff was driving his company vehicle at the time of the accident and defendant alleged that the plaintiff’s employer had negligently entrusted that vehicle to plaintiff, given that it had received three anonymous phone calls complaining about plaintiff’s driving. Before trial, defendant filed a notice of non-party fault, alerting plaintiff and the court that it would ask the jury to consider the fault of plaintiff’s employer –in addition to any fault on the part of defendant– when determining who was responsible for plaintiff’s damages. Plaintiff filed a partial motion for summary judgment on the issue, arguing that the jury should not be allowed to consider plaintiff’s employer’s fault at all. The trial court agreed and defendant appealed before the trial began.
The trial court’s decision was affirmed in the Court of Appeals. The Court explained that under the facts of the case, plaintiff’s employer did nothing to contribute to plaintiff’s damages; it did not breach any duty to plaintiff or proximately cause his injures. Thus, the jury would not be permitted to consider the fault of the employer. The Court’s reasoning seemed to leave open the possibility of apportioning damages to a plaintiff’s employer for negligent entrustment under a different set of facts, yet the Court went on to announce a blanket rule: “[W]e conclude that [the apportionment statute] does not permit the defendant in a motor vehicle personal injury case to include the plaintiff’s employer as a non-party against whom fault can be assessed under the theory of negligent entrustment.” Id. at *8. The Court ultimately concluded that plaintiff’s own negligence would break any causal connection between the employer’s negligence and plaintiff’s damages, therefore making it inappropriate for the jury to consider any fault on behalf of the employer.
Judge Branch wrote a strong dissent, drawing attention to the plain language of the apportionment statute, which discusses the “fault” of a non-party, and specifically separates “liability” as an entirely different legal concept. O.C.G.A. § 51-12-33(f). The statute allows the jury to assign a percentage of fault to a non-party without imposing any legal liability. Id. The dissent also points out the inequity of the majority rule: if the employee had been sued by the other driver, the employee would be permitted to include this employer on the verdict form to reduce his personal liability. Similarly, if the other driver had sued the employee, that driver could also add the employer as a defendant and sue the employer for negligent entrustment. Under the majority rule, although the case involves the same accident and same parties, the fault of the employer cannot always be considered by the jury.
It is foreseeable that a defendant in a similar case may challenge the Zaldivar decision if there are significant facts to support the allegation that a plaintiff’s employer contributed to plaintiff’s damages by negligently entrusting the vehicle to him (e.g. employer was aware of employee’s multiple prior DUI convictions, but still allowed him to drive the company vehicle). However, for the time being, a jury cannot consider whether a plaintiff’s employer was partially at fault for plaintiff’s damages due to its negligent entrustment of the company vehicle to plaintiff.