ZALDIVAR v. PRICKETT et al.
S14G1778
Supreme Court of Georgia
JULY 13, 2015
RECONSIDERATION DENIED JULY 27, 2015.
(774 SE2d 688)
BLACKWELL, Justice.
rеnder, and on this record, it cannot be said that the trial court abused its discretion when it found that Dr. Swartz had an “appropriate level of knowledge...in performing the procedure” to opine under Rule 702 (c) (2) (A) that Dr. Brantley was negligent when he inserted the primary trocar.13 The Court of Appeals erred when it concluded otherwise, and we reverse its judgment.
Judgment reversed. All the Justices concur.
DECIDED JULY 13, 2015 — RECONSIDERATION DENIED JULY 27, 2015.
Franklin, Taulbee, Rushing, Snipes & Marsh, James B. Franklin; Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellants.
Hall, Booth, Smith, Charles A. Dorminy, Norman D. Lovein, William S. Mann,
BLACKWELL, Justice.
Daniel Prickett sued Imelda Zaldivar to recover money damages for injuries that he allegedly sustained in an October 2009 vehicular collision.1 Prickett and Zaldivar each blames the other for the collision,2 and Zaldivar also points a finger at Overhead Door Company, which is not a party to the lawsuit. Prickett was employed by Overhead Door, and at the time of the collision, he was driving a truck that Overhead Door had provided to him in connection with his employment. According to Zaldivar, Overhead Door was negligent to have entrusted Prickett with a company truck, and for that reason, it too should bear some of the responsibility for any injuries that he sustained.
Commonly known as the “apportionment statute,”
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 appealed, and in a split decision, the Court of Appeals affirmed. See Zaldivar v. Prickett, 328 Ga. App. 359 (762 SE2d 166) (2014). The majority of the Court of Appeals agreed with Prickett about the meaning of the statute, see id. at 361-362, and it adhered to its earlier decision in Ridgeway with respect to proximate cause. See id. at 362. Judge Branch dissented, and like Zaldivar, she urged that assignment of fault to a nonparty does not require that the nonparty itself have liability in tort for the injury to the plaintiff. See id. at 364-365 (Branch, J., dissenting). Moreover, Judge Branch said, if Overhead Door negligently entrusted Prickett with a company truck, its negligent entrustment could be а proximate cause of his injuries, even if Overhead Door might avoid liability to Prickett upon some other ground. Although she did not say so, Judge Branch implied that Ridgeway was wrong about proximate cause. See id. at 366 (Branch, J., dissenting).
We issued a writ of certiorari to review the decision of the Court of Appeals. We now conclude that the majority of the Court of Appeals correctly understood
1. We address first what is meant by
We are principally concerned here with
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 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 Codе section, findings of fault shall not subject any nonparty to liability 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.
In the cases to which the statute applies,3 as we noted earlier, subsection (c) directs the trier of fact to consider the “fault” of all —
[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 othеrwise awarded to the plaintiff in proportion to his or her percentage of fault.
fault to the plaintiff, providing that “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.”
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. 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....
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 defendants with liability under subsection (b). “Fault” in subsection (a) refers, as we have said, to a breach of а 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
particularized meanings of the “fault” described in subsections (a) and (b) that it is meant to encompass.
Moreover, this understanding of “fault” is consistent with the usual and customary meaning of the term as used in a legal context. See Blaсk‘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.” 291 Ga. at 361-362 (1) (citation and punctuation omitted). And it comports just as well with the way in which we described the scope of the apportionment statute as a whole in Couch: ”
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.”
Standing alone, the provision in subsection (c) about a nonparty that “could [not] have been named as a party to the suit” does not necessarily refer to a nonparty without liability. One certainly can be named as a defendant in a lawsuit but be without liability, precisely because the case is defended and tried, and in the end, a judge or jury absolves the defendant of liability; that happens in Georgia courtrooms all the time. For that reason, one could understand the statutory reference to those who “could [not] have been named as a party to the suit” to refer instead to those who could not have been properly named because of jurisdictional and procedural rules, such as the rules for personal jurisdiction, venue, or joinder. That said, another provision of the apportionment statute convinces us that Zaldivar and Judge Branch were right to think that the “fault” of nonparties without liability to the plaintiff in tort can be considered. In subsection (d) (1), the statute provides:
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.
But how can that be, if “fault” — at least as applied to one other than the plaintiff himself — involves the commission of a tort as against the plaintiff that is a proximate cause of his injury, which amounts, оf 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 cause of the injury to the plaintiff. See, e.g., Shekhawat v. Jones, 293 Ga. 468, 470-471 (1) (746 SE2d 89) (2013) (state employee may have statutory immunity under the Georgia Tort Claims Act when the employee “commits a tort while acting within the scope of his employment with the State“). What happened, happened, and affirmative dеfenses and immunities do not change what happened, only what the consequences will be. As such, the apportionment statute permits consideration, generally speaking, of the “fault” of a tortfeasor, notwithstanding that he may have a meritorious affirmative defense or claim of immunity against any liability to the plaintiff.6 We note that this understanding of “fault” is consistent with
Our understanding is confirmed as well by persuasive authority from Georgia and elsewhere. Starting at home, our own Court of
Other jurisdictions with apportionment statutes similar to ours have taken similar approaches. In Couch, we looked to judicial
understandings of the Colorado apportionment statute, which, we said, refers to “fault” in much the same way as our own statute. 291 Ga. at 362 (1), n. 6. Construing the Colorado apportionment statute, courts have concluded that a nonparty can have “fault” that is to be considered, notwithstanding that the nonparty has a valid defense or immunity as against its own liability to the plaintiff. See, e.g., Doering v. Copper Mountain, Inc., 259 F3d 1202, 1215 (III) (D) (3) (10th Cir. 2001) (“Even a person who is immune from suit, however, may be a nonparty designee so long as the person owes a duty of care to the injured plaintiff.” (Citations omittеd)); Williams v. White Mountain Constr. Co., 749 P2d 423, 429 (III) (B) (Col. 1988) (notwithstanding exclusivity of workers’ compensation remedy, “[t]ortfeasors sued by injured employees are now able to present evidence of employer [negligence or fault] at trial so as to reduce whatever damages may be assessed against them to a level proportionate to their liability“); Paris v. Dance, 194 P3d 404, 408 (I) (B) (2) (Col. App. 2008) (“It does not undermine the policy of qualified parental liability to forbid the allocation of financial responsibility for the otherwise nonrecoverable negligence of that parent to another defendant.” (Citation omitted)). Courts in other jurisdictions have reached the same conclusions under their own apportionment statutes. See, e.g., Millette v. Tarnove, 435 Fed. Appx. 848, 854 (III) (A) (2) (11th Cir. 2011) (under Florida apportionment statute, “[plaintiff‘s] inability to recover in tort from a nonparty due to the economic loss rule does not preclude apportioning fault to that nonрarty“); Sedgwick Ins. v. CDS, Inc., 47 FSupp.3d 536, 549 (B) (2) (E.D. Mich. 2014) (fault of nonparty-employer could be considered under Michigan apportionment statute, notwithstanding that employer would have defense as against plaintiff-employee under exclusive remedy provision of workers’ compensation statute); Ovando v. County of Los Angeles, 71 Cal. Rptr. 3d 415, 439 (Ct. App. 2008) (“fault” could be allocated to nonparties under California Proposition 51 notwithstanding their governmental immunity); Fitzpatrick v. Allen, 955 P2d 141, 148 (Kan. App. 1998) (“The Kansas appellate courts have repeatedly held that even if some form of immunity shields a nonparty from liability, the jury may under [the Kansas apportionment statute] still consider the immune person‘s fault.“); DeBenedetto v. CLD Consulting Engineers, 903 A2d 969, 981 (I), 983 (II) (Ν.Η. 2006) (New Hampshire apportionment statute that requires damages to be awarded “in accordance with the proportionate fault of each of the parties” was interpreted to include “all parties contributing to the occurrence giving rise to an action, including thоse immune from liability or otherwise not before the court“); Pinnacle Bank v. Villa, 100 P3d 1287, 1293 (Wyo. 2004) (under Wyoming apportionment statute, a party or nonparty, “even though immune, can be included in the jury‘s comparative fault analysis“).
2. We now turn to the particular theоry of nonparty “fault” at issue in this case. To the extent that Overhead Door committed a tort as against Prickett by negligently entrusting him with a company truck, could that tort have been a proximate cause of his injuries? Ridgeway suggests that the answer is “no.” Ridgeway involved a lawsuit against Victoria Ridgeway for the wrongful death of Linda Whisman, who had been killed while driving Ridgeway‘s car. The plaintiffs (Whisman‘s parents) alleged that Ridgeway had negligently entrusted Whisman with the car, and her negligent entrustment, they said, was a proximate cause of Whisman‘s death. The trial court denied summary judgment to Ridgeway, but the Court of Appeals reversed. In its opinion, the Court of Appeals appeared to conflate Whisman‘s own comparative negligence with proximate cause, finding as a matter of law that Whisman herself was negligent with respect to the events that led to her death. Apparently for that reason, the Court of Appeals hеld that any negligence on the part of Ridgeway could not have been a proximate cause of Whisman‘s death. Ridgeway, 210 Ga. App. at 170-171. That, at least, is how the majority of the Court of Appeals in this case understood Ridgeway, see Zaldivar, 328 Ga. App. at 362 (citing Ridgeway), and although Ridgeway is not perfectly clear about the connection
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, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002) (citations and punctuation omitted). “[I]f the character of the intervening act... was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken.” Id. It is settled that liability for negligent entrustment is — by its very nature — based on
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, 328 Ga. App. 727, 731 (2) (b) (760 SE2d 251) (2014) (citation omitted). See also Butler v. Warren, 261 Ga. App. 375, 376 (1) (582 SE2d 530) (2003); Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 830 (3) (435 SE2d 54) (1993). Proof of the essential elements of negligent entrustment — including actual knowledge of the incompetence or recklessness of the person to whom the instrumentality in question is entrusted — necessarily proves that the negligence of the person entrusted was foreseeable to the one who entrusted that person. And that, in turn, means that the negligence of the person entrusted could not be an intervening act that would break the causal connection between the negligent entrustment and the injury sustained.
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
Indeed, as then-Judge Benham explained for the Court of Appeals in Pitts v. Ivester, 171 Ga. App. 312, 313 (1) (320 SE2d 226) (1984), our law of negligent entrustment is consistent with the rule recognized in the Restatement (Second) of Torts § 390:
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 one 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 hаrm 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.8 See also Martell v. Driscoll, 302 P3d 375, 381 (Kan. 2013). As Restatement (Second) of Torts § 390 and its commentary indicate, the law does recognize
first-party negligent entrustment as a tort, even if liability usually will be barred by the doctrine of comparative negligence. To the extent that Ridgeway or any other case that relied on Ridgeway — for instance, Hook v. Harmon, 315 Ga. App. 278, 279 (727 SE2d 143) (2012) — suggests otherwise, they are disapproved.
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 оf 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
Judgment reversed. All the Justices concur, except Benham, J., who dissents.
BENHAM, Justice, 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, 261 Ga. App. 375 (582 SE2d 530) (2003). The
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
In assessing percentages of fault, thе 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, 285 Ga. 693, 699 (681 SE2d 116) (2009) (Carley, J., dissenting); City of LaGrange v. Ga. Public Svc. Comm., 296 Ga. App. 615 (2) (675 SE2d 525) (2009). The apportionment of damages to an employer without liability is simply not allowed under a plain reading of the statute.
Indeed, in Couch v. Red Roof Inns, Inc., 291 Ga. 359, 365 (729 SE2d 378) (2012), the majority of the Court stated that “[t]he purpose of the apportionment statute is to have the jury consider all of the tortfeasors who may be liable to the plaintiff together, so their respective responsibilities for the harm can be determined.” (Emphasis supplied.) The Court also explained that the statutory scheme works by “tak[ing] the total amount of damages to be awarded to the plaintiff, identify[ing] the persons who are liable, and apportion[ing] the damages to each liable person according to each person‘s percentage of fault.” (Emphasis supplied.) Id. at 361. Therefore, because the Overhead Door Company is not liable and can never be liable in tort for Prickett‘s injuries, the jury cannot consider the comparative fault of the Overhead Door Company for the purpose of limiting Zaldivar‘s damages. See Troup v. Fischer Steel Corp., 236 SW3d 143, 146-149 (Tenn. 2007) (comрarative fault of employer could not be considered in employee‘s tort action against third-party defendant where workers’ compensation law precluded employer‘s liability in tort); Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 115 (853 A2d 940) (2004) (jury could not assign fault to employer in employee‘s suit against third-party tortfeasor no matter the comparative negligence as between the employer and third party); Reynolds v. United States, 280 Mont. 191 (929 P2d 844) (1996) (immune employer could not be apportioned liability or negligence as nonparty); Ridings v. Ralph M. Parsons Co., 914 SW2d 79, 81-82 (Tenn. 1996) (fault cannot be attributed to the plaintiff‘s employer as attribution of fault is limited to those who can be held liable for the plaintiff‘s damages); Varela v. American Petrofina Co. of Texas, Inc., 658 SW2d 561 (Tex. 1983) (negligence of employer could not be considered for the purpose of reducing the damages in employee‘s action against third-party tortfeasor); Hamme v. Dreis & Krump Mfg. Co., 716 F2d 152 (3rd Cir. 1982) (Pennsylvania law does not allow the consideration of an employer‘s nеgligence
Accordingly, for the reasons outlined in this dissent, I would affirm the judgments of the trial court and the Court of Appeals.
BENHAM, Justice