Tucker was a passenger in a pickup truck driven by Brown, who struck a tractor-trailer rig parked by the road. The passenger, Tucker, sued Brown for her resulting injuries, but did not sue the trucking company or the truck driver.  Before trial Brown identified the tractor-trailer driver as a nonparty against whom the jury should apportion fault pursuant to the provisions of O.C.G.A. § 51-12-33.  The jury returned a verdict of $2 million in damages, but apportioned 40 percent fault to the nonparty tractor-trailer driver and 60 percent to Brown, Brown v. Tucker, 2016 Ga. App. LEXIS 399 (7/5/16).

Why Tucker did not sue the owner or driver of the tractor-trailer is not apparent from the opinion.

Of course, Brown tried to lay all the blame for wreck on the tractor-trailer, which was on the side of the road a few inches to a foot and half inside the fog line. She claimed the sun was in her eyes and she could not see the truck.  The Court of Appeals rejected an argument by the defendant Brown that she only had to “show a rational basis for apportioning fault” to the nonparty, rather than bearing the burden of proof to demonstrate negligence by the nonparty, and held:

“A defendant’s claim that a nonparty is liable for all or some of the plaintiff’s damages is an assertion of fact, the existence of which is essential to the defense. As an affirmative defense, the defendant bears the burden of proving her assertion of fact.”

“The affirmative defense that the jury should apportion fault against someone other than the defendant is no different analytically from the defense of contributory negligence. Once the plaintiff establishes her prima facie case, the defendant seeking to establish that someone else bears responsibility for the damages has the burden of proving that defense.”

“In sum, Brown’s apportionment claim was an affirmative defense. She therefore had the burden of showing by a preponderance of the evidence that the nonparty tractor-trailer driver was negligent and that his negligence proximately caused all or some portion of damages to the plaintiff.”

Thus, in spite of the procedural unfairness of Georgia’s apportionment statute, which allows a defendant to identify a nonparty alleged to be at fault up to 120 days before trial and often long after the statute of limitations has expired, at least the defendant has to prove negligence on the party of that nonparty by a preponderance of the evidence, and bears the burden of proof on that issue.  So, it is not the plaintiff’s responsibility to prove the nonparty was not at fault.  Of course, without the nonparty there, the defendant has an easy shot at an empty chair.

Another important issue regarding O.C.G.A. § 51-12-33 is making sure the jury understands that they are to determine the total damages sustained by the plaintiff without regard to who was at fault, and that the court will make any reductions in the ultimate award based on the percentage of fault attributed to the defendant.  The trial court gave this charge in response to a question from the jury, and the Court of Appeals found no error:

“Now, ladies and gentlemen, your job is, first of all, to set the total amount of damages that you feel like are appropriate for the damages incurred by . . . Tucker. You are then, after that decision is made, you are then to go and determine how much fault, if any, was due to the defendant Brown and how much fault, if any, is due to the nonparty Patterson, Mr. Patterson. You are not to be concerned with anything else other than the latter questions. Do not reduce your total damages by any percentage of fault apportionment. The Court will take it from there.”

Finally, the Court of Appeals also found no error by the trial court in reading that portion of the apportionment statute to the jury that “assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties”, O.C.G.A. § 51-12-33(f)(1).  This provides good ammunition for the plaintiff’s lawyer to be able to explain this to the jury, and to request a charge accordingly, so the jury understands how the percentages of fault will be used in determining how much money the plaintiff will receive.

Brown v. Tucker also addressed expert testimony, which will be discussed in Part II.

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