Constitutionality.

- Tenant lacked standing to challenge the constitutionality of the apportionment statute as the statute applied to non-parties. Johnson St. Props., LLC v. Clure, 302 Ga. 51, 805 S.E.2d 60 (2017).

Applicability.

- O.C.G.A. § 51-12-33 applies only to the plaintiff's negligence in concurrently causing the injury or damages by contributory negligence, assumption of risk, and comparative negligence; it does not apply to failure to mitigate damages or injury after the completion of the tort and injury or damages result. United States Fid. & Guar. Co. v. Paul Assocs., 230 Ga. App. 243, 496 S.E.2d 283 (1998).

Trial court erred by granting the parents of a businessman, shot and killed while a guest at a motel, partial summary judgment in the parents' wrongful death action and by holding that the apportionment of fault statute, O.C.G.A. § 51-12-33, did not apply because the statute applied since the actions of a criminal assailant were separate from the property owner and no respondent superior existed. Accor N. Am., Inc. v. Todd, 318 Ga. App. 317, 733 S.E.2d 846 (2012).

Insurers who paid judgment could seek reimbursement from other insurers despite lack of apportionment.

- Insurers' claim that other insurers who had paid a judgment against both insureds for breach of the peace during a repossession under O.C.G.A. § 11-9-609 had no right of reimbursement because fault had not been apportioned under O.C.G.A. § 51-12-33 was rejected; the insurers had a right to recover contribution as subrogees. Renaissance Recovery Solutions, LLC v. Monroe Guar. Ins. Co., F. Supp. 2d (S.D. Ga. July 13, 2016).

Third-party claims not cognizable under apportionment statute.

- After a defendant moved for leave to file a third-party complaint, the good faith requirement of Fed. R. Civ. P. 16(b) was met, but leave was denied under Fed. R. Civ. P. 14(a) since the defendant's third-party claims did not appear cognizable under Georgia law in light of Georgia's apportionment statute, O.C.G.A. § 51-12-33. Ga. Power Co. v. Sure Flow Equip., Inc., F. Supp. 2d (N.D. Ga. July 22, 2014).

O.C.G.A. § 51-12-33(c) requires the trier of fact in cases to which the statute applies to consider the fault of all persons or entities who contributed to the alleged injury or damages, which includes not only the plaintiff itself and the defendants with liability to the plaintiff, but also every other tortfeasor whose commission of a tort as against the plaintiff was a proximate cause of the plaintiff's injury, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff. Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, Ga. App. , S.E.2d (Mar. 1, 2016).

Who makes determination of apportionment.

- The text of O.C.G.A. § 51-12-33 does not require a single trier of fact to make the determination of liability, damages sustained, and apportionment. Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 801 S.E.2d 24 (2017).

Fault of all persons or entitites to be considered.

- O.C.G.A. § 51-12-33(c) requires the trier of fact to consider the fault of all persons or entities who contributed to the alleged injury or damages, which includes not only the plaintiff personally and the defendants with liability to the plaintiff, but also every other tortfeasor whose commission of a tort as against the plaintiff was a proximate cause of the plaintiff's injury, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff. Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015).

No application to claims based on respondeat superior liability.

- Apportionment statute, O.C.G.A. § 51-12-33(b), does not apply to claims based on respondeat superior liability; thus, there is no basis for applying the statute to the merely duplicative claims of negligent hiring, training, supervision, and retention. Hosp. Auth. v. Fender, 342 Ga. App. 13, 802 S.E.2d 346 (2017).

Apportionment of damages not ascertainable.

- In a wrongful death action, the trial court erred in imposing liability on a condominium association for the security company's share of fault as the general verdict did not distinguish the award and the jury may have imposed fault on the condominium association based strictly on a theory of nuisance, and the imposition of fault on the security company under common law, which negligence could be completely independent of, and not imputable to the condominium association. Camelot Club Condo. Assoc. v. Afari-Opoku, 340 Ga. App. 618, 798 S.E.2d 241 (2017).

Apportionment to nonparty.

- O.C.G.A. § 51-12-33 requires the trier of fact to consider the "fault" of a nonparty only when the nonparty is shown to have committed a tort against the plaintiff that was a proximate cause of the plaintiff's injury. Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015).

In the company's legal malpractice and breach of fiduciary duty suit against the firm, the trial court erred in striking the firm's apportionment notice, seeking to apportion fault among the company and multiple nonparties, because to the extent that the firm could prove that the nonparties identified in the apportionment notice breached a legal duty in tort that it owed the company, the breach of which was a proximate cause of the injury that the company sustained, the trier of fact could be permitted under O.C.G.A. § 51-12-33(c) to assign fault to the nonparties. Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, 336 Ga. App. 527, 785 S.E.2d 541 (2016).

Full retrial not required, only retrial for apportionment.

- Trial court's error in apportionment did not require a full retrial, but rather required retrial only for the apportionment damages, as the assessment of fault among tortfeasors, in most if not all cases, would have no impact on the jury's finding of liability or on the total amount of damages to which the plaintiff was entitled. Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 801 S.E.2d 24 (2017).

Rule of joint and several liability among joint tortfeasors can be disregarded, under O.C.G.A. §§ 51-12-31 and51-12-33, with several separate judgments rendered in cases coming within the scope of these statutory provisions. Union Camp Corp. v. Helmy, 258 Ga. 263, 367 S.E.2d 796 (1988).

Interspousal tort immunity doctrine.

- Application of the apportionment of damages pursuant to O.C.G.A. § 51-12-33 did not violate the interspousal tort immunity doctrine, O.C.G.A. § 19-3-8, because the trial court's holding that the jury should have been instructed to apportion the award of damages to a wife according to the jury's determination of the percentage of fault of her husband and a driver, if any, in no way requires the wife to file suit against her husband, but instead, precluded the wife from recovering from the driver that portion of her damages, if any, that a trier of fact concluded resulted from the negligence of her husband. Barnett v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570 (2011).

Fault of tortfeasor considered despite meritorious defense.

- As the Georgia Supreme Court has explained in Zaldivar, the apportionment statute, O.C.G.A. § 51-12-33(c), permits consideration, generally speaking, of the fault of a tortfeasor, notwithstanding that the tortfeasor may have a meritorious affirmative defense or claim of immunity against any liability to the plaintiff; the Supreme Court does not conclude that immune employers should be treated differently than other immune tortfeasors. Walker v. Tensor Mach., Ltd., 298 Ga. 297, 779 S.E.2d 651 (2015).

Georgia law does recognize first-party negligent entrustment as a tort, even if liability usually will be barred by the doctrine of comparative negligence; thus, to the extent that Ridgeway v. Whisman, 210 Ga. App. 169 (435 S.E.2d 624) (1993) or any other case that relied on Ridgeway, for instance, Hood v. Harmon, 315 Ga. App. 278, 279 (727 S.E.2d 143) (2012), suggests otherwise, those cases are disapproved. Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015).

Notices of apportionment untimely.

- Trial court properly struck a security system monitoring company's notices of apportionment in a customer's negligence action because the notices were filed in an untimely manner; strict compliance with the statutory time requirements was warranted, and the trial court was well within the court's right to set the trial date when the court did. Monitronics Int'l, Inc. v. Veasley, 323 Ga. App. 126, 746 S.E.2d 793 (2013).

Multiple parties required for instruction.

- Trial court did not err in not instructing the jury on apportioning damages between defending parties as the patient's action in dismissing with prejudice a company doctor from the patient's medical malpractice suit meant such an instruction would have been inappropriate as the action was no longer against the multiple parties that statutory law required before such an instruction could be given. Schriever v. Maddox, 259 Ga. App. 558, 578 S.E.2d 210 (2003).

Trial court erred in ruling that damages could be apportioned against a third party as O.C.G.A. § 51-12-33(a) did not authorize a jury to apportion damages against a non-party. Fraker v. C.W. Matthews Contr. Co., 272 Ga. App. 807, 614 S.E.2d 94 (2005), aff'd, 2007 U.S. App. LEXIS 28793 (11th Cir. 2007).

Charge as to apportionment of burden of proof proper.

- In a personal injury case, the defendant's apportionment claim was an affirmative defense, thus, the defendant had the burden of showing by a preponderance of the evidence that the nonparty tractor-trailer driver was negligent and that the driver's negligence proximately caused all or some portion of damages to the plaintiff, thus, the trial court committed no error in charging the jury to that effect. Brown v. Tucker, 337 Ga. App. 704, 788 S.E.2d 810 (2016).

Failure to submit apportionment to jury.

- Trial court erred in denying the park's request to include some of the assailants on the verdict form for apportionment of fault. Six Flags Over Georgia II, L.P. v. Martin, 335 Ga. App. 350, 780 S.E.2d 796 (2015).

Correction of errors in apportionment.

- When correction of an apportionment error involves only the identification of tortfeasors and assessment of relative shares of fault among the tortfeasors, there is no sound reason to disturb the jury's findings on liability or its calculation of damages sustained by the plaintiff. Though there may be instances in which the particular circumstances of the case or the nature of the apportionment error militate otherwise, in the ordinary case, the issue of apportionment among tortfeasors will be sufficiently distinct from the issue of liability and calculation of damages that the correction of an error in apportionment will not require a full retrial. In fact, when the issue of apportionment is distinct from the issues of liability and damages sustained, our "law of the case" doctrine will in most instances preclude the re-litigation of these issues once the jury's verdict on them has been affirmed. Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 801 S.E.2d 24 (2017).

Reduction of damages award.

- The 2005 amendment to O.C.G.A. § 51-12-33(a), providing that a judge shall reduce the amount of damages otherwise awarded to a plaintiff in proportion to his or her percentage of fault, shows legislative approval of a procedure under which the trial court reduces the jury's damage award in proportion to the degree of fault the jury attributes to the plaintiff. Turner v. New Horizons Cmty. Serv. Bd., 287 Ga. App. 329, 651 S.E.2d 473 (2007).

Delivery service's claim that an employee of a security company who was injured while inspecting one of the delivery service's trucks, and who filed a negligence action against the delivery service was also partially negligent for the injuries that the employee suffered, lacked merit in the context of the service's action, seeking indemnification from the security company, as there were no allegations of negligence against anyone other than the delivery service and the driver such that claims of comparative and contributory negligence under O.C.G.A. § 51-12-33 were unavailing. UPS v. Colt Sec. Agency, Inc., 296 Ga. App. 815, 676 S.E.2d 22 (2009).

Apportionment not permitted when entity is not party to action.

- Trial court did not err in denying a motion for judgment notwithstanding the verdict after a jury awarded damages on an insurer's subrogation claim as there could be no apportionment of damages with a city, even if the city was deemed liable, because the city was not a party to the action pursuant to O.C.G.A. § 51-12-33. Universal Underwriters Group v. Southern Guar. Ins. Co., 297 Ga. App. 587, 677 S.E.2d 760 (2009).

Apportionment permitted when third party's fault at issue.

- Third party's plea was admissible under former O.C.G.A. § 24-3-35(2) (see now O.C.G.A. § 24-8-804) as a third-party admission because the third party's fault had properly been made an issue under O.C.G.A. § 51-12-33. Woods v. Allied Van Lines, Inc., 316 Ga. App. 548, 730 S.E.2d 35 (2012).

To the extent that the driver could prove that the truck driver's employer breached a legal duty in tort that it owed the truck driver, the breach of which is a proximate cause of the injury that the truck driver sustained, the trier of fact could be permitted under O.C.G.A. § 51-12-33(c) to assign "fault" to the employer. Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015).

Apportionment requirement applies even if plaintiff is not at fault.

- In applying O.C.G.A. § 51-12-33, the trier of fact must apportion the court's award of damages among the persons who are liable according to the percentage of fault of each person even if the plaintiff is not at fault for the injury or damages claimed. McReynolds v. Krebs, 290 Ga. 850, 725 S.E.2d 584 (2012).

Apportionment must be raised as issue before first day of trial.

- In a wrongful death action, the trial court did not err in excluding the issue of apportionment from the jury's consideration because the defendant failed to comply with the notice requirements of the apportionment statute, O.C.G.A. § 51-12-33(d)(1), and did not raise the issue of apportionment until the first day of trial. Freese II, Inc. v. Mitchell, 318 Ga. App. 662, 734 S.E.2d 491 (2012).

Cause of action for apportionment not created.

- Trial court did not err in dismissing the property owner's common-law indemnification and apportionment claims because the property owner's third-party complaint against the designers and builders was properly dismissed as the complaint sought payment from third-party defendants as joint tortfeasors and thus, common law indemnity principles did not apply, and O.C.G.A. § 51-12-33 did not create a cause of action for apportionment but abrogated such actions under common law. Dist. Owners Ass'n v. AMEC Envtl. & Infrastructure, Inc., 322 Ga. App. 713, 747 S.E.2d 10 (2013).

Exception to apportionment requirement.

- O.C.G.A. § 51-12-33 required the apportionment of damages among multiple tortfeasors even if the plaintiff was not at fault. However, given that a vehicle manufacturer settled with the plaintiff before trial and that the other driver in the collision presented no evidence for apportionment, a trial court did not err by dismissing the driver's crossclaim for setoff and contribution. McReynolds v. Krebs, 307 Ga. App. 330, 705 S.E.2d 214 (2010), aff'd, 290 Ga. 850, 725 S.E.2d 584 (2012).

O.C.G.A. § 51-12-33 did not apply to a city's water customers claims that the city overcharged the customers for water and sewage service because the claims were not for injury to person or property. City of Atlanta v. Benator, 310 Ga. App. 597, 714 S.E.2d 109 (2011).

Injured person's father's employer bore no fault in an asbestos-related action for damages that could have been assessed to it as a nonparty under O.C.G.A. § 51-12-33 because it did not owe a duty of care to a third-party, non-employee who came into contact with its employee's asbestos-tainted work clothing at locations away from the workplace. Union Carbide Corp. v. Fields, 315 Ga. App. 554, 726 S.E.2d 521 (2012).

In a case in which an injured person alleged that the person was exposed to asbestos through the family's brake work on vehicles or parts manufactured by certain nonparties and by use of a joint compound product used in the construction of the person's family home, it was not error to grant summary judgment to the injured person on the defendant's nonparty defense under O.C.G.A. § 51-12-33 when the defendants failed to present evidence sufficient to create a triable issue of fact as to whether the nonparties contributed to the injuries or damages as was required to assess those entities' potential fault. Union Carbide Corp. v. Fields, 315 Ga. App. 554, 726 S.E.2d 521 (2012).

Apportioned damages not subject to any right of contribution.

- In a personal injury action, the trial court and the court of appeals correctly construed O.C.G.A. § 51-12-33 to bar a motorist's cross-claims against a manufacturer for contribution and setoff. O.C.G.A § 51-12-33(b) flatly stated that apportioned damages shall not be subject to any right of contribution. McReynolds v. Krebs, 290 Ga. 850, 725 S.E.2d 584 (2012).

Negligent hiring, retention, and training claims.

- After an employee collided with a vehicle while driving a tractor-trailer, the employer was not entitled to summary judgment on the plaintiffs' claims of negligent hiring, training, and retention because the apportionment statute removed the rationale for granting summary judgment on negligent hiring, retention, and training claims purely based on the employer's admission of respondeat superior. Little v. McClure, F. Supp. 2d (M.D. Ga. Aug. 29, 2014).

Burden is upon the defendant, but whether the defendant meets that burden given the evidence at trial is an issue that should be left to the jury. Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, Ga. App. , S.E.2d (Mar. 1, 2016).

Percentage of fault to non-party employer.

- Court answered a certified question in the affirmative, namely, it held that O.C.G.A. § 51-12-33(c) allows the jury to assess a percentage of fault to the non-party employer of a plaintiff who sues a product manufacturer and seller for negligence in failing to warn about a product danger, even though the non-party employer had immunity under the Workers' Compensation Act, O.C.G.A. § 34-9-11. Walker v. Tensor Mach., Ltd., 298 Ga. 297, 779 S.E.2d 651 (2015).

Impleader properly denied.

- Third-party complaint was properly dismissed on the basis that no claim for indemnity or contribution had been stated and the trial court properly denied the motion to add a third-party defendant because only the defendant rendered a legal opinion on the status of title to property and was directly responsible to the client for the opinion and the attorney was in effect seeking impermissibly to tender a substitute defendant. Hines v. Holland, 334 Ga. App. 292, 779 S.E.2d 63 (2015).

Asbestos exposure cases.

- Sufficient evidence supported the verdict in favor of the plaintiff in an asbestos exposure case because the plaintiff worked at the defendant's plant for years, and the evidence was sufficient to show that asbestos-containing products were used, produced, or maintained at the plant in a manner which released airborne asbestos fibers, and that the plaintiff was at the plant in proximity to those asbestos fibers when those fibers were released. Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga. App. 82, 770 S.E.2d 334 (2015), overruled on other grounds, 2016 Ga. LEXIS 445 (Ga. 2016).

Jury instructions.

- Trial court erred by entering judgment on the jury's first verdict in a property owner's action for trespass and nuisance because the trial court had the authority and duty to instruct the jury to reconsider the verdict once a substantial error in the charge was discovered even though the owner had not objected to the trial court's actions, and the charges and the verdict form created substantial uncertainty about the meaning of the jury's initial decision; the initial failure to charge on O.C.G.A. § 51-12-33(g) was harmful because the jury's initial decision showed an intent to reduce the owner's award by only 50 percent, not 100 percent, but once the jury was fully instructed, the jury confirmed that intent in the second verdict, and the trial court was required to enter judgment in accordance with that intent. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).

Trial court erred by declining to charge the jury pursuant to O.C.G.A. § 51-12-33 because the jury should have been instructed to apportion the award of damages to a wife according to the jury's determination of the percentage of fault of her husband and a driver, if any, and there was evidence from which the jury could have concluded that both the driver and the husband were negligent; the trier of fact is required to apportion an award of damages under O.C.G.A. § 51-12-33 even if the plaintiff bears no fault. Barnett v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570 (2011).

Jury instructions provided pursuant to O.C.G.A. § 51-12-33 were not error in a wrongful death action since the particular language used was not challenged, the evidence supported invocation of the instruction, and there was no showing that the particular allegations of the claim did not warrant use of that instruction. Pacheco v. Regal Cinemas, Inc., 311 Ga. App. 224, 715 S.E.2d 728 (2011).

Because any error in charging the jury about apportionment had no effect on the outcome of the trial and could not have harmed a mother, the court of appeals need not consider whether instructing the jury on apportionment actually was error; the jury returned a verdict for the owner of an apartment complex, and there was no occasion for the jury to apportion damages. Raines v. Maughan, 312 Ga. App. 303, 718 S.E.2d 135 (2011), cert. denied, No. S12C0436, 2012 Ga. LEXIS 270 (Ga. 2012).

Trial court erred in charging the jury with the pattern instruction on comparative negligence because the instruction was no longer an accurate statement of law since the statement did not require the jury to quantify the fault of the plaintiff as precisely as O.C.G.A. § 51-12-33(a), and the procedure established by the pattern charge left the parties to wonder whether the jury found comparative negligence at all and, if so, correctly reduced the damages to be awarded the plaintiff in proportion to the degree of his or her negligence; both the Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.141 and Underwood v. Atlanta & West Point R. R. Co., 105 Ga. App. at 340 (1962), the case on which the pattern charge is based, have been superseded by O.C.G.A. § 51-12-33(a), as amended in the Tort Reform Act of 2005. Specifically, the van driver was entitled to a correct charge on comparative negligence because a jury could properly conclude from the evidence that a car driver, who filed suit against the van driver, was driving too fast, that driving so fast was negligent, and that the negligence contributed to the collision. Clark v. Rush, 312 Ga. App. 333, 718 S.E.2d 555 (2011).

Trial court did not limit the jury's obligation to consider the fault of unnamed nonparties because a company provided notice that a nonparty was at fault for some damages to the owners' property, and pursuant to that notice, the trial court instructed the jury that it had to consider the liability of the nonparty when deliberating. Ingles Mkts., Inc. v. Kempler, 317 Ga. App. 190, 730 S.E.2d 444 (2012).

Trial court erred by granting summary judgment to the defendants in a wrongful death action upon concluding that the plaintiffs' decedent was 50 percent or more responsible for the decedent's own death because there was an issue of fact as to whether the decedent would have died but for the presence of the tractor-trailer illegally parked in the emergency lane. Reed v. Carolina Cas. Ins. Co., 327 Ga. App. 130, 755 S.E.2d 356 (2014).

Following a jury trial on the issue of unliquidated damages in an action involving, inter alia, breach of fiduciary duty and related business torts, the plaintiff was awarded $2.5 million jointly and severally against the defendants; however, because apportionment was mandated under O.C.G.A. § 51-12-33 as it did not omit from its purview either damages or the assessment of percentages of fault springing from a default judgment, and damages apportioned by the trier of fact as provided in that statute were the liability of each person against whom they were awarded, and were not a joint liability among the persons liable, the trial court erred in instructing the jury on joint and several liability, and the defendants were entitled to a new trial. I. A. Group, Ltd. Co. v. RMNANDCO, Inc., 336 Ga. App. 461, 784 S.E.2d 823 (2016).

Mitigation evidence relevant.

- In a property owner's action for trespass and nuisance, the trial court did not err in denying the owner's motion in limine to exclude evidence suggesting that the owner should have built or re-built drains on the property because, at a minimum, the evidence the owner sought to exclude was relevant to the claim of negligence in several ways, and any possible error admitting evidence of mitigation or decisions regarding the drains vis-a-vis the owner's claims of nuisance and trespass was self-induced. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).

Evidence of doctor's prior conduct not relevant.

- In a wrongful death action, the trial court did not abuse the court's discretion by refusing the plaintiff's request to have evidence of the doctor's medical condition and history admitted because the trial court found that the evidence was not relevant without evidence of such condition and history existing on and during treatment of the plaintiff's decedent. Doherty v. Brown, 339 Ga. App. 567, 794 S.E.2d 217 (2016).

Waiver of constitutional challenge.

- Constitutional challenges on appeal to O.C.G.A. § 51-12-33 were waived when there was no trial court ruling shown on the issue. Pacheco v. Regal Cinemas, Inc., 311 Ga. App. 224, 715 S.E.2d 728 (2011).

Special verdict.

- Tort Reform Act of 2005, O.C.G.A. § 51-12-33(a), does not explicitly state that the jury must return a special verdict identifying the percentage of fault attributable to the plaintiff, but that is implicit, given the explicit requirements that the jury determine the percentage of fault and that the judge reduce any damages award in proportion to the percentage determined by the jury; without a special verdict, the judge could not know the percentage by which the judge is to reduce the damages award. Clark v. Rush, 312 Ga. App. 333, 718 S.E.2d 555 (2011).

Cited in Pirkle v. Hawley, 199 Ga. App. 371, 405 S.E.2d 71 (1991); Mann v. Taser Int'l, Inc., 588 F.3d 1291 (11th Cir. 2009); Patterson v. Long, 321 Ga. App. 157, 741 S.E.2d 242 (2013).

ALR.

- Products liability: seller's right to indemnity from manufacturer, 79 A.L.R.4th 278.