Since the Georgia Legislature adopted a statute that abolished joint and several liability among tortfeasors and required juries to apportion fault among responsible parties, including nonparties, the Georgia Supreme Court on several occasions has wrestled with the issue of who could be a party at fault and, therefore, someone to who a jury could attribute a share of responsibility. In Zaldivar v. Prickett, Case No. S14G1778 (decided July 6, 2015), the Georgia Supreme Court interpreted very broadly the definition of who could be a party at fault. That has implications for a wide variety of cases.

The Zaldivar case arose out of a traffic accident. Each party blamed the other for the collision. The defendant also thought that the plaintiff’s employer was at fault for allegedly having negligently entrusted the vehicle involved in the accident to the plaintiff. The defendant sought to have the plaintiff’s employer included on the verdict form as a party to whom a share of fault could be attributed. The trial court had rejected attributing fault to the employer, and the Court of Appeals affirmed. The Georgia Supreme Court reversed.

The Court held that the finder of fact could attribute fault to a nonparty “only when the nonparty is shown to have committed a tort against the plaintiff that was a proximate cause of his injury.” Opinion, p. 4. However, of more significance, the Court held that the “fault of a nonparty can be considered regardless of whether the nonparty has liability to the plaintiff.” Opinion, p. 14. What makes a party a nonparty “at fault” is the commission of an act that is the proximate cause of injury to the plaintiff, not whether the nonparty can be found liable to the plaintiff.

Not every tortfeasor can be held liable for his torts. A tortfeasor may have an affirmative defense or immunity that admits the commission of a tort that is the proximate cause of the injury in question. Although such a defense or immunity may cut off liability, a tortfeasor is still a tortfeasor, and nothing about his defense or immunity means that he cannot be said to have committed a tort that was a proximate cause of the injury to the plaintiff. What happened happened, and affirmative defenses and immunities do not change what happened, only what the consequences will be. As such, the apportionment statute permits consideration, generally speaking, of the “fault” of a tortfeasor, notwithstanding that he may have a meritorious affirmative defense or claim of immunity against any liability to the plaintiff.

Opinion, pp. 16-17 (citation omitted).

This holding has great implications in a number of circumstances. In different circumstances, Georgia law recognizes a number of affirmative defenses and immunities to liability, such as sovereign immunity and the workers’ compensation bar. The fact that a government entity or employer cannot be held liable in tort does not prevent them from being a tortfeasor and, therefore, a party to which the finder of fact can attribute a share of fault. The Zaldivar decision broadens the range of parties to whom a jury could attribute fault under the apportionment statute.

The Opinion is found here.

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