Huge Blow to Civil Tort Defendants Georgia Court Changes Law on Apportionment – by William T. Mitchell

We need to report a significant case from the Georgia Supreme Court which is adverse to defendants on apportionment in Georgia. In sum, Georgia law on apportionment before the ruling was that Georgia was a “pure apportionment” state and so, a defendant could push apportionment of fault onto a nonparty tortfeasor. In effect, in a case of Plaintiff v. Defendant, a jury could issue an award of $100,000 and determine that fault was 50% against the named defendant and 50% against a non-party tortfeasor (e.g., an employer, an immune city, an under-insured tortfeasor). The net effect would be the named defendant would only pay $50,000.

However, in Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, 2021 WL 3501075 (Ga. Aug. 10, 2021), the Georgia Supreme Court ruled that a jury may apportion fault, but not damages, to a non-party who may have contributed to plaintiff’s damages but who, for whatever reason, is not joined as a party to the lawsuit. So, based on the example above, the defendant would pay $100,000 of the verdict since there can be no apportionment against non-parties.

The Supreme Court explained that the Georgia Legislature did a poor job of writing the statute and a plain reading of the statute leads to this result. It should be noted that apportionment does apply if plaintiff sues two or more defendants; in the above example each would pay $50,000.

PRACTICAL IMPACT: This is bad news for defendants in cases where a non-party tortfeasor has material fault. This statute mitigated exposure against named defendants when there were unnamed tortfeasors. Further, it was great leverage for negotiation purposes in various kinds of cases. Meanwhile, in most instances there is not a procedural vehicle to join the non-party defendant if the plaintiff refuses to sue them. An exception may be contractual indemnity. That said, this ruling has somewhat of a minimal practical impact on criminal act/negligent security cases where the property owner would seek apportionment against the non-party criminal, because our research showed that juries put very little fault on the actual criminal and 90%+of the fault on the landlord or business owner.