Georgia Supreme Court Allows Non-Party Apportionment of Fault to Plaintiff’s Employer for Negligent Entrustment
On July 6, 2015, in the case of Zaldivar v. Prickett et al., No. S14G1778, 2015 WL 4067788, the Supreme Court of Georgia unanimously held that Georgia’s apportionment statute allowed a jury to apportion some fault for plaintiff’s damages to plaintiff’s employer. The case concerned an automobile accident between two drivers where the defendant alleged that the plaintiff’s employer was partially responsible for its employee’s injuries based on negligent entrustment. The defendant argued that the jury should be allowed to apportion some fault to the non-party employer based upon its allowing the plaintiff to drive a company truck on business, even though three complaints had been filed against him for poor driving. In ruling in favor of the defendant, the Court held that Georgia’s 2005 apportionment statute, O.C.G.A. § 51-12-33, requires the trier of fact to consider the fault of a non-party (i.e., the plaintiff’s employer) when the non-party is shown to have committed a tort against the plaintiff that was a proximate cause of the plaintiff’s injury. Specifically, the Court held that the apportionment statute contemplates the fault of every tortfeasor, regardless of whether he or she may have an affirmative defense or claim of immunity against liability to the plaintiff.
The Court also explained that a non-party’s negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted. This is known as “first-party” negligent entrustment, which is typically not a workable legal theory of recovery available to a plaintiff as plaintiff’s own comparative negligence typically matches or exceeds that of his/her employer in entrusting the vehicle to that plaintiff. The Court noted, however, that negligent entrustment can still proximately cause the plaintiff’s injuries and that plaintiff’s comparative negligence is simply a defense which can reduce or bar the defendant employer’s liability. The Supreme Court cited cases in which legally incompetent or intoxicated individuals were entrusted with dangerous objects, like weapons, as situations where the plaintiff’s comparative negligence would not reduce or bar recovery.
Consequently, the Court held that a defendant could ask a jury to apportion fault to the plaintiff’s employer under a theory of negligent entrustment. This decision provides a basis for apportioning fault to non-parties even though such non-parties may not be directly liable to the plaintiff. For instance, a jury could apportion fault to a government entity, even though the doctrine of sovereign immunity would bar such claims from being directly pursued. Likewise, a defendant could point to a parent negligently entrusting his/her vehicle to an incompetent or reckless child, despite the existence of intra-familial tort immunity.