The jury ultimately found for the plaintiff against the other driver and awarded her $1,246,000.42. The liable driver appealed, alleging that the trial court erred in construing the Georgia apportionment statute (O.C.G.A. § 51-12-33) to bar her cross-claims against GM for contribution and setoff. On appeal, the Court of Appeals held that the trial court correctly construed O.C.G.A. § 51-12-33.
Many states, finding that the purpose of the strict liability doctrine is to protect otherwise defenseless victims from defective products, hold that principles of comparative negligence do not apply to strict liability actions. Georgia is not one of those states. In Johns v. Suzuki Motor of Am., S19G1478, 2020 Ga. LEXIS 760, the Supreme Court of Georgia recently held that Georgia’s comparative fault statute, OCGA § 51-12-33, applies to strict products liability claims brought pursuant to Georgia’s product liability statute, OCGA § 51-1-11.As stated in Johns, Adrian Johns (Johns) was injured in August of 2013 when the front brake on his Suzuki motorcycle failed. He sued Suzuki Motor Corporation and Suzuki Motor of America, Inc. (collectively, Suzuki), asserting, among other claims, a claim of strict products liability.
The jury, however, apportioned 49 percent of the fault for the crash to the plaintiff for his failure to properly maintain the motorcycle. The trial court found that O.C.G.A. § 51-12-33 applied and apportioned fault to reduce the $12.5 million jury award to $6,375,000. The plaintiff appealed and alleged that the trial court erred in reducing his damages because Section 51-12-33 did not apply to strict product liability claims.
Id. at * 3. The Court of Appeals affirmed, holding that fault could not be apportioned to the employer under O.C.G.A. § 51-12-33(c) because it did not contribute to the plaintiff’s alleged injury or damages. Id. at * 6-7.
(Id. at 2). Justice Melton further reasoned that the meaning of Georgia’s apportionment statute, O.C.G.A. § 51-12-33, is clear when it states that a jury should “apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” See O.C.G.A. § 51-12-33(b) (Id. at 5).
The defendants appealed, arguing that the district court erred by not instructing the jurors to apportion fault pursuant to Georgia state law. The relevant statute, O.C.G.A. Section 51-12-33, states: (a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault. (b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person.
This month, the Georgia Supreme Court further extended the reach of the Georgia law addressing the apportionment of liability in tort cases in the case of Walker, et al. v. Tensor Machinery, et al. The Court had recently decided the case of Zaldivar v. Prickett, et al. and held that the trier of fact could consider a non-party which is not actually liable to the plaintiff in tort as a non-party responsible for the “fault” which caused the underlying injury and thus reduce the liability of the defendant according to the percentage of that fault under O.C.G.A. § 51-12-33, Georgia’s Apportionment Statute. Even before the Court issued its ruling in Zaldivar, the United States District Court for the Northern District of Georgia, in advance of the trial for the Walker case, certified to the Court the question of whether the trier of fact can assess a percentage of fault to an employer under the Apportionment Statute even though the state Workers’ Compensation Act bars a direct claim by the employee against the employer for the underlying tort.
The Georgia law regarding apportionment of liability in tort cases became more clear this month with the Georgia Supreme Court’s decision in Zaldivar v. Prickett, et al. Before the Court was the question of whether a non-party which is not “liable” to the plaintiff as a matter of law could be considered by the trier of fact as a non-party responsible, in whole or in part, for the “fault” which caused the underlying injury thus reducing the liability of the defendant by the percentage of that fault under O.C.G.A. § 51-12-33, commonly known as the Georgia Apportionment Statute. The Court’s answer was “Yes”.
On July 6, 2015, the Georgia Supreme Court decided Zaldivar v. Prickett and held that under the state’s apportionment statute any party or nonparty who proximately caused the plaintiff’s injuries can be included on the jury verdict form. It has been a decade since the Georgia legislature adopted O.C.G.A. § 51-12-33, the statute that abolished joint and several liability among tortfeasors and required juries to apportion “fault” among responsible parties and nonparties. However, as the facts of Zaldivar demonstrate, it can be difficult to determine exactly what it means to be at “fault.”
Id. at * 1. Defendants remaining in the case as it proceeded to trial filed notices of fault of nonparties under O.C.G.A. § 51-12-33 for purposes of apportioning damages by the jury. Id.