Apportionment Statute Held Applicable to Non-Party Employers Under the Theory of Negligent Entrustme

In an action arising out of a car accident, both drivers blamed each other for the accident; however, plaintiff, Zaldivar, also blamed defendant, Prickett’s employer, Overhead Door Company (ODC). Zaldivar v. Prickett, 2105 WL 4067788 (Ga. App. July 6, 2015). Zaldivar gave notice under the apportionment statute, OCGA § 51-12-33, that she intended to ask the trier of fact to assign responsibility to ODC for Prickett’s injuries based on ODC’s negligent entrustment in hiring Prickett. Prickett, a driver for ODC, had various driving violations and ODC had notice of his record and continued to employ him as a driver.

The court found that the apportionment statute’s reference to “all persons or entities who contributed to the alleged injury or damages” meant all persons or entities that have breached a legal duty owed to plaintiff, and that breach is the proximate cause of the resulting injury. All persons or entities not only includes the plaintiff and defendant, but also every other tortfeasor, regardless of whether such tortfeasor would have actual liability to the plaintiff. The court also clarified what limitations, if any; comparative negligence has on the apportionment statute. The court held that the trier of fact is required to consider all nonparties that have shown to have committed a tort against the plaintiff. Further, negligent entrustment of an instrumentality can be the proximate cause of an injury which must be considered even if liability would usually be barred by comparative negligence. In summary, negligent entrustment does not cut off the causal connection between injuries and the employer.

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