Category Archives: Apportionment of Damages


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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.

Georgia Supreme Court Confirms that Fault Can Be Allocated to Employer Immune from Liability due to Exclusive Remedy

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Before the Georgia Supreme Court issued its apportionment decision in Zaldivar v. Prickett, 297 Ga. 589 (2015), the United States District Court for the Northern District of Georgia had certified the following question to the Supreme Court, and it has now answered:

Does OCGA § 51-12-33 (c) allow the jury to assess a percentage of fault to the non-party employer of a plaintiff who sues a product manufacturer and seller for negligence in failing to warn about a product danger, even though the non-party employer has immunity under OCGA § 34-9-11?

“Unless there is a compelling reason to treat nonparty employers with immunity under the Workers’ Compensation Act differently than nonparties with other defenses or immunities against liability, Zaldivar requires an affirmative answer to the certified question. We see no such compelling reason, and so, we adhere to Zaldivar and respond to the District Court in the affirmative.”

Walker v. Tensor Machinery, LTD, S15Q1222 (11/16/15).

It is not uncommon for an employee to be severely injured by a dangerous or defective machine, giving rise to a products liability action against the manufacturer of the machine.  Unfortunately, in Georgia, that manufacturer may be able to reduce its liability by offering evidence that the employer was at fault, even though the employee cannot sue his or her employer for damages, as the employee’s remedy against the employer is limited to workers compensation benefits.

As with the Supreme Court’s opinion in Zaldivar, this most recent decision was not unexpected, but it is certainly disappointing.

Georgia Court of Appeals Holds That Jury Should Have Been Permitted to Apportion Fault to Adjoining Property Owner in Negligent Security Case.

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In Double View Ventures v. Polite, 2104 Ga. App. LEXIS 234 (3/26/14) the defendants, the owner of an apartment complex and a property management company, appealed a jury verdict in favor of plaintiff, a resident of the apartment complex. The resident filed a premises liability action against defendants following an attack by unknown assailants on the property of the apartment complex. The attack occurred while the resident was walking along a dirt path leading to a gas station located adjacent to the apartment complex. Bleach was thrown in the resident’s face and he was shot, which caused him severe permanent physical injuries.

On appeal, defendants contended that the trial court erred in refusing to allow the jury to consider the fault of the gas station and to apportion damages to it as well as among the defendants, pursuant to O.C.G.A. § 51-12-33. The Court of Appeals agreed and held that because there was some evidence supporting the defendants’ claims that the gas station may have been liable for the resident’s injuries and could be apportioned fault, the trial court erred in refusing to allow the jury to consider whether the gas station was partially at fault. The court noted that defendants presented evidence of numerous armed robberies and assaults on the gas station property, including inside the convenience store, as well as evidence that the area surrounding the gas station and the apartment complex was known as a high-crime area.  According to the Court, the fence near where the plaintiff was attacked was on property owned by the gas station, not by the apartment complex:

“Polite testified that he was attacked after he walked through the fence and took a few steps, and the evidence shows that the wooden fence is on Chevron’s property about 12 feet away from the Defendants’ property line. Given this evidence, along with the fact that it is unknown whether the attackers came from the Chevron station or the apartment complex, a jury question exists as to whether the Chevron station should have anticipated another criminal attack near the wooden fence and whether Chevron took reasonable precautions to protect Polite from the use of its premises.”

The court reversed the judgment, although the defendants never identified the specific entity in control of the Chevron station next door where the fence was located, and had in fact identified three other specific entities alleged to have been at fault in their pretrial notices of nonparty fault pursuant to O.C.G.A. § 51-12-33(d)(1).  The defendants pulled a classic bait and switch on the plaintiff.  They identified three specific entities in three separate notices, but presented no evidence that any one of them was actually responsible for the property where the fence was located.  According to plaintiff’s counsel, Darren Summerville, the trial court excluded the three specific entities named in the notices of nonparty fault from the verdict form, but the defendants argued that the jury should have been permitted to apportion fault to a vague, non-specific entity never named in the pretrial notices, such as “the convenience store” or “Chevron.”  The trial court refused, and got reversed by the Court of Appeals.

This is horrible decision, and the case is likely headed for the Georgia Supreme Court.  There was a strong dissent by Judge Anne Barnes, who correctly saw the issue as a failure of the defendants to introduce any evidence that would provide a rational basis for a jury to apportion fault against a nonparty.

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