Lead Opinion
Dаniel Prickett sued Imelda Zaldivar to recover money damages for injuries that he allegedly sustained in an October 2009 vehicular collision.
Commonly known as the “apportionment statute,” OCGA § 51-12-33 requires the trier of fact in some cases to divide responsibility for an injury among all of those who “contributed to” it — parties and nonparties alike — according to their respective shares of the combined “fault” that produced the injury. The statute then requires the trier of fact to apportion any award of damages among the defendants with liability, limiting the liability of each to the extent to which she was assigned responsibility. Zaldivar gave notice under the apportionment statute that she intended to ask the trier of fact in this case to assign some responsibility to Overhead Door for any injuries that Prickett may have sustained in the collision. In response, Prickett filed a motion for partial summary judgment, asserting that OCGA § 51-12-33 does not require any assignment of responsibility to Overhead Door. The statute, Prickett argued, permits attributing “fault” to a nonparty only to the extent that the nonparty committed a tort that was a proximate cause of the injury to the plaintiff. And negligent entrustment of a motor vehicle or other instrumentality nеver can be a proximate cause of an injury to the person to whom the instrumentality was entrusted, Prickett added, citing Ridgeway v. Whisman,
The trial court granted the motion for partial summary judgment, agreeing with Prickett about the meaning of the apportionment statute, and following Ridgeway to conclude that negligent entrustment on the part of Overhead Door could not possibly have been a proximate cause of any injuries that Prickett sustained. Zaldivar аppealed, and in a split decision, the Court of Appeals affirmed. See Zaldivar v. Prickett,
We issued a writ of certiorari to review the decision of the Court оf Appeals. We now conclude that the majority of the Court of Appeals correctly understood OCGA § 51-12-33 to require 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 his injury. We also conclude, however, that negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted, and the majority of the Court of Appeals erred when it relied on statements in Ridgeway to the contrary. We disapprove Ridgeway to the extent that it suggests that negligent entrustment never can be a proximate cause of an injury to the person entrusted, and we reverse the judgment of the Court of Appeals.
1. We address first what is meant by OCGA § 51-12-33 when it speaks of the “fault” of one who “contributes to” an injury, especially as it concerns nonparties. And to begin, we rеcall the familiar and settled principles that inform our consideration of statutory meaning. As we recently acknowledged, “[a] statute draws its meaning... from its text.” Chan v. Ellis,
We are principally concerned here with OCGA § 51-12-33 (c), which directs the trier of fact in cases to which the apportionment statute applies to “consider the fault of all persons or entities who
In its entirety, the statute provides:
(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. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
(c) In assessing percentages of fault, the trier of fact shall consider the fault of. all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.
(d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not*593 later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the non-party’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.
(f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.
(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liаbility in any action or be introduced as evidence of-liability in any action.
(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.
OCGA § 51-12-33.
In the cases to which the statute applies,
[If] the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact... shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportiоn to his or her percentage of fault.
OCGA § 51-12-33 (a). Subsection (g) refers back to this assignment of
Subsection (b) of the apportionment statute is addressed to the “fault” of defendants “who are liable” for the injury to the plaintiff, and it specifies that the “fault” of such a defendant — relative to the “fault” of all — is the measure and limit of her liability:
[T]he 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.*595 . Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded ....
OCGA § 51-12-33 (b).
In subsection (c), “fault” is used with reference to the “fault of all persons or entities who contributed to the alleged injury or damages,” and so, it includes not only the “fault” of nonparties, but also the sort of “fault” attributable to plaintiffs under subsection (a), as well as the “fault” attributable to defendаnts with liability under subsection (b). “Fault” in subsection (a) refers, as we have said, to a breach of a legal duty that the plaintiff owes for his own protection that is a proximate cause of his injury, and “fault” in subsection (b) refers similarly to a breach of a legal duty that a defendant owes for the protection of the plaintiff that is a proximate cause of the injury to the plaintiff. As used in subsection (c), then, “fault” that “contributed to the alleged injury or damages” must refer to a breach of a legal duty in the nature of tort that is owed for the protection of the plaintiff, the breach of which is a proximate cause of his injury. Understanding “fault” in this way — as the term is used in subsection (c) with respect to plaintiffs, defendants with liability, and others alike — comports with the
Moreover, this understanding of “fault” is сonsistent with the usual and customary meaning of the term as used in a legal context. See Black’s Law Dictionary at 725 (10th ed. 2014) (“fault” means “[t]he intentional or negligent failure to maintain some standard of conduct when that failure results in harm to another person”). It fits comfortably with the definition of “fault” that we identified in Couch: “conduct done wrongly or negligently.”
Before we conclude our consideration of the apportionment statute, however, we must address a provision of the statute that, according to Zaldivar, poses a problem for understanding “fault” in the way in which we have said it is most naturally and reasonably understood. Immediately following its provision that the trier of fact must “consider the fault of all persons or entities who contributed to the alleged injury or damages,” subsection (c) adds that this is true “regardless of whether the person or entity was, or could have been, named as a party to the suit.” OCGA § 51-12-33 (c) (emphasis supplied). If the “fault” of a nonparty can be considered regardless of whether the nonparty “could have been named as a party to the suit,” Zaldivar says, then the “fault” of a nonparty can be considered regardless of whether the nonparty has liability to the plaintiff. But if “fault” consists of a breach of a legal duty that sounds in tort and is owed with respect to the plaintiff, the breach of which is a proximate cause of the injury that the plaintiff has sustained, then the person in breach necessarily would be subject to liability to the plaintiff, Zaldivar argues. And so, she concludes, understanding “fault” as we have done would effectively write the “could have been” provision right out of subsection (c). In her dissent, Judge Branch raised the same sort of concern. See Zaldivar,
Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
OCGA § 51-12-33 (d) (1). Because a settlement agreement ordinarily extinguishes conclusively any potential liability that the settlement was meant to resolve, a nonparty with whom the plaintiff has settled usually would not have any continuing potential liability to the plaintiff in tort, having instead converted its potential liability to a contractual one. Just as Zaldivar and Judge Branch maintain, the apportionment statute contemplates the consideration of the “fault of all persons or entities who contributed to the alleged injury or damages,” regardless of their liability or potential liability to the plaintiff in tort.
But how can that be, if “fault” — at least as applied to one other than the plaintiff himself — involves thе commission of a tort as against the plaintiff that is a proximate cause of his injury, which amounts, of course, to proof of the essential elements of tort liability? The answer is simple: Proof of these essential elements is a necessary condition for tort liability, but it does not lead inevitably to liability. Not every tortfeasor can be held liable for his torts. A tortfeasor may have an affirmative defense or immunity that admits the commission of a tort that is the proximate cause of the injury in question. Although such a defense or immunity may cut off liability, a tortfeasor is still a tortfeasor, and nothing about his defense or immunity means that he cannot be said to have committed a tort that was a proximate
Our understanding is confirmed as well by persuasive authority from Georgia and elsewhere. Starting at home, our own Court of Appeals confronted a similar issue in Barnett v. Farmer,
Other jurisdictions with apportionment statutes similаr to ours have taken similar approaches. In Couch, we looked to judicial
In summary, we hold that OCGA § 51-12-33 (c) requires the trier of fact in cаses to which the statute applies to “consider the fault of all persons or entities who contributed to the alleged injury or damages,” meaning all persons or entities who have breached a legal duty in tort that is owed with respect to the plaintiff, the breach of which is a proximate cause of the injury sustained by the plaintiff. That includes not only the plaintiff himself and 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 his injury, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff.
So understood, Ridgeway is simply wrong. Comparative negligence of the plaintiff, on the one hand, and the causal relationship between the wrongdoing of the defendant and the injury sustained by the plaintiff, on the other, are distinct questions. Comparative negligence is a defense that diminishes or bars the liability of the defendant notwithstanding that her conduct was a proximate cause of the injury to the plaintiff; the defense does not necessarily eliminate the causal connection. That certainly is the case when the defendant is shown to have negligently entrusted the plaintiff with an instrumentality by which the plaintiff was injured.
For an intervening act “to become the sole proximate cause of a plaintiff’s injuries, the intervening act must not have been foreseeable by [the] defendant, must not have been triggered by [the] defendant’s act, and must have been sufficient by itself to cause the injury.” Ontario Sewing Machine Co. v. Smith,
a negligent act of the owner in lending [an instrumentality] to another to [use], with actual knowledge that the [other] is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the [other] on account of his incompetency and recklessness.
CGL Facility Mgmt. v. Wiley,
It is true that in a first-party negligent entrustment case — a case in which the plaintiff is the one who was negligently entrusted with the instrumentality in question — liability often will be cut off by the doctrine of comparative negligence. See OCGA § 51-12-33 (g) (“the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed”). See also Dobbs et al., The Law of Torts § 422 (2d ed.) (“In a so-called first-party negligent-entrustment case, where the negligent entrustee herself is the plaintiff, principles of contributory or comparative negligence generally apply.”); 57A AmJur2d Negligence § 313 (“[Generally an entrustee may bring an action to recover for physical harm to himself or herself resulting from a negligent entrustment .... However, such an action may be subject to the defenses of comparative negligence or contributory negligence.” (Citations omitted)). And sometimes, the plaintiff’s negligence may be so plain and indisputable that it can be found to cut off liability as a matter of law. See Lundy v. Stuhr,
Indeed, as then-Judge Benham explained for the Court of Appeals in Pitts v. Ivester, 171 Ga. App. 312, 313 (1) (
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
(Emphasis supplied.) A comment to this section of the Restatement identifies some circumstances in which a viable first-party negligent entrustment action may lie:
One who accepts and uses a chattel knowing that he is incompetent to use it safely or who associates himself in the use of a chattel by one whom he knows to be so incompetent, or onе who is himself careless in the use of the chattel after receiving it, is usually in such contributory fault as to bar recovery. If, however, the person to whom the chattel is supplied is one of a class which is legally recognized as so incompetent as to prevent them from being responsible for their actions, the supplier may be liable for harm suffered by him, as when a loaded gun is entrusted to a child of tender years. So too, if the supplier knows that the condition of the person to whom the chattel is supplied is such as to make him incapable of exercising the care which it is reasonable to expect of a normal sober adult, the supplier may be liable for harm sustained by the incompetent although such person deals with it in a way which may render him liable to third persons who are also injured.
Restatement (Second) of Torts § 390, comment c.
In this case, the majority of the Court of Appeals relied on Ridgeway and concluded that, as a matter of law, any “fault” on the part of Overhead Door could not have “contributed to” the injuries allegedly sustained by Prickett because his own negligence necessarily would cut off the causal connection between his injuries and any negligent entrustment by Overhead Door. As we have explained, that conclusion rests on an improper conflation of proximate cause and the affirmative defense of comparative negligence. If Prickett had sued Overhead Door for negligent entrustment, he might well have lost as a result of comparative negligence that equals or exceeds that of Overhead Door, or as a result of some other affirmative defense (such as the exclusive remedy provisions of the Workers’ Compensation Act). But an affirmative defense or immunity does not eliminate “fault” or cut off proximate cause, it only bars liability notwithstanding that the “fault” of the tortfeasor was a proximate cause of the injury in question. To the extent that Zaldivar can prove that Overhead Door breached a legal duty in tort that it owed Prickett, the breach of which is a proximate cause of the injury that Prickett sustained, the trier of fact in this case may be permitted under OCGA § 51-12-33 (c) to assign “fault” to Overhead Door. Because the Court of Appeals concluded otherwise, its judgment must be reversed.
Judgment reversed. All the Justices concur, except Benham, J., who dissents.
Notes
Prickett’s wife also sued Zaldivar for loss of consortium. For the purposes of this opinion, however, there is no need to distinguish between Prickett and his wife, and so, we refer to both simply as “Prickett.”
Prickett alleges that, as he was lawfully turning left in an intersection, Zaldivar drove into the intersection against a traffic signal and struck him. Zaldivar says that she entered the intersection lawfully and that Prickett failed to yield the right of way and turned into her path.
In the response to the petition for a writ of certiorari and the brief on the merits filed in this Court, Prickett did not dispute that OCGA § 51-12-33 applies, and so, we accept that it does. To the extent that Prickett may have argued below that the statute simply does not apply in this case, we express no opinion about the merit of that argument, and we leave any such argument to be addressed on remand.
We previously have acknowledged that the apportionment statute codifies the dоctrine of comparative negligence. See Couch,
In Couch, we acknowledged that subsection (b) uses “fault” and “liability in this closely connected way. See
This means, of course, that a named defendant who is found to be without liability to the plaintiff as a result of an affirmative defense or immunity may still have “fault” that is to be considered under OCGA § 51-12-33 (c). Subsection (c), then, is properly understood to require the consideration of the “fault” of four classes of persons or entities: plaintiffs (also covered in subsection (a)), defendants with liability (also covered in subsection (b)), defendants without liability, and nonparties.
The dissent notes that OCGA § 51-12-33 (b) directs the apportionment of an award of damages “among the persons who are liable,” and so, the dissent reasons, the statute must be understood to limit the assignment of “fault” to those who “maybe liable” to the plaintiff. There are a couple of problems with this reading of the statute. In the first place, thе plain terms of subsection (b) speak of persons “who are liable,” not those who “may be liable,” and we are not at liberty to simply rewrite statutes. Second, we know from paragraph (f) (2) that a finding of nonparty “fault” does not subject the nonparty to liability, and for that reason, those “who are liable” — the subjects of subsection (b) — necessarily must be limited to named defendants with liability. Subsection (b) simply does not concern nonparties. Reading the apportionment statute as a whole, it seems quite clear that subsection (b) is instead concerned with damages awarded in cases in which there is more than one named defendant with liability, providing that the award must be apportioned among the liable defendants according to their respective fault, and clarifying that “[djamages apportioned . . . shall be the liability of each person against whom they are awarded [and] shall not be а joint liability among the persons liable.” OCGA § 51-12-33 (b). See also McReynolds v. Krebs,
The dissent also points to a number of decisions from other jurisdictions, but those decisions are not persuasive with respect to the meaning of the Georgia apportionment statute. Some of these foreign cases are from jurisdictions without statutory authority for the assignment of fault to nonparties. See, e.g., McIntyre v. Balentine,
Comment c also says that the phrase “subject to liability” denotes that a supplier of chattel “is liable if, but only if, his conduct is the legal cause of the bodily harm complained of and if the person suffering the harm is not subject to any defense such as contributory negligence, which will prevent him from recovering damages therefor.” This portion of the comment correctly recognizes the distinction between proximate causation and the affirmative defense of comрarative negligence.
Dissenting Opinion
dissenting.
I write because I respectfully disagree with the majority opinion.
In a typical negligent entrustment case involving an automobile accident, the tortfeasor-defendant is the employee and the plaintiff is seeking damages from the employer and/or the employee. See Butler v. Warren,
Prickett’s employer will never be liable in tort for any injuries sustained by Prickett because of the workers’ compensation statute which bars such actions. See OCGA § 34-9-11. Georgia’s apportionment statute does not allow a defendant tortfeasor to apportion its damages vis-a-vis the plaintiff’s immune employer. Specifically, OCGA § 51-12-33 (b) allows for the apportionment of damages “among the persons who are liable according to the percentage of fault of each person.” (Emphasis supplied.) OCGA § 51-12-33 (c) goes onto provide:
In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.
In order to reach its conclusion that the fault of Prickett’s employer may be considered by the jury, the majority opinion reads subsection (c) to the exclusion of subsection (b), ignoring the language that apportionment of damages is to be among “persons who are liable” according to their percentage of fault. This goes against one of the most basic rules of statutory construction that statutes, including subsections therein, are to be read in pari materia to each other. See Chase v. State,
Indeed, in Couch v. Red Roof Inns, Inc.,
Accordingly, for the reasons outlined in this dissent, I would affirm the judgments of the trial court and the Court of Appeals.