In Zaldivar v. Prickett, decided July 6, 2015, the Georgia Supreme Court appears to have answered the question of whether a jury should be allowed to apportion fault at trial against a plaintiff’s employer, even though the employer would have immunity or other liability defenses which would have prevented the plaintiff from suing the employer directly.
Daniel Prickett sued Imelda Zaldivar to recover damages for injuries Prickett allegedly sustained in a car wreck. Prickett and Zaldivar each blamed the other for the collision and Zaldivar filed a Notice of Non-Party Fault as to Overhead Door Company, Prickett’s employer at the time of the collision. Prickett was driving a truck that Overhead door had provided to him in connection with his employment. According to Zaldivar, Overhead Door was negligent in entrusting Prickett with a company truck and, for that reason, it should bear some of the responsibility for any injuries that he sustained.
Prickett argued that the Georgia Apportionment Statute, O.C.G.A § 51-12-33, should not apply to Overhead Door and Overhead Door should not be named as a non-party at fault because Prickett could not have sued Overhead Door for negligently entrusting the company vehicle to himself. The Court of Appeals agreed and found that Overhead Door should not be placed on the verdict form. The Supreme Court has now overruled the Court of Appeals on this issue.
In a lengthy opinion authored by Justice Blackwell, the Supreme Court discusses in detail the definitions of “fault” under the Apportionment Statute. According to the Supreme Court, the Apportionment Statute requires the trier of fact to consider the fault of a non-party only when the non-party is shown to have committed a tort against the plaintiff that was a proximate cause of his injury. Because negligent entrustment of a vehicle can be a proximate cause of an injury to the person to whom the vehicle was entrusted, Overhead Door should have been on the verdict form.
The fact that Overhead Door likely could not have been sued by its own employee for entrusting a vehicle to him (primarily because the driver would be, most likely, predominantly at fault in any such incident) does not prevent the employer as being named as a non-party at fault under the Apportionment Statute. The Supreme Court went on to discuss the fact that even if an entity is immune from suit for some other reason, that reason, whatever it is, would not prohibit the person or entity from being considered a “tortfeasor” or “party at fault.”
This analysis is important in one of the most common arguments regarding the Apportionment Statute: whether an employer who has statutory immunity pursuant to the Workers Compensation Act can be listed on the verdict form as a party at fault. I believe Zaldivar answers that question in the affirmative. There is very little argument left that an employer should not be allowed on a verdict form simply because it has statutory immunity (it still has to be proven that the employer was negligent and that its negligence was a proximate cause of the plaintiff’s injuries). This issue should be definitively decided this term in another case my partner Matt Moffett has in front of the Supreme Court which presents that exact question. We expect the Court in that case to find that it has already addressed the issue in Zaldivar.
Please let me know if you would like a copy of the opinion.