*1 рrop- the Littletons’ to advertise continued But foreclosure counsel January 2004, erty 2004, November in October for foreclosure January property foreclosing 4, ultimately on the Littletons’ 2005, on 2005. granting erred in the trial court conclude that We therefore summary judgment law, that, the bank’s as a matter on the basis proceedings within foreclosure a withdrawal of actions constituted meaning 44-14-85. Barnes, § of OCGA Judgment MсMillian, J., J., concur. P. reversed. July 16, 2014.
Decided Christopher Spahr, Jackman, Willis, H. J. Ballard Stefanie appellant. Charley Brown, for F. Coleman, Melton, III, for Edward S. Sell Pamela L. Sell & appellees. et al.
A14A0113. ZALDIVARv. PRICKETT 166) Presiding Judge. BARNES, question pursuant appeal whether, This addresses the to OCGA may (c) Georgia’s 51-12-33 a defendant nonparty plaintiff’s employer ask a to determine that a shares percentage negligently partial plaintiff’s injuries employer bеcause the ofthe fault for Granting plaintiff of its vehicles.
entrusted with one summary plaintiff, judgment the trial court answered question negative. the facts ofthis case the this in the Because under plain- plaintiff’s employer did not “contribute” to the actions of the appli- alleged injury damages, (c) is not tiff’s OCGA 51-12-33 cable, and therefore affirm. we
Summary judgment proper genuine there is no issue of when judgment a matter of material fact and the movant is entitled to as grant summary review a or denial of law. OCGA 9-11-56 We light judgment in the most de novo and construe the evidence the nonmovant. Home Builders Assn. Savannah favorable to County, 243, Chatham 9, 2009, that on Daniel Prickett and The record reflects October intersection controlled a traffic Imelda Zaldivar collided at an injured, light. and Zaldivar was Both Prickett and Zaldivar were hospital in Prickett sued from the scene to a an ambulance. taken Zaldivar on personal September seeking 13, 2011, to recover for injuries,1 September 22, and she was served on 2011. On October complaint, claiming 2011, Zaldivar filed an answer to Prickett’s as complaint affirmative defenses that the failed to state a claim for process process jurisdiction relief; insufficient; and service of was imprоper; improper; venue was and the action was barred statute of limitation. Zaldivar did not file a counterclaim despite having injured been in the collision. *2 discovery, clearing Prickett claimed he was the intersection turning light red; left after turned Zaldivar claimed that Prickett yellow turned light. in left front of her as she entered the intersection on a undisputed driving The evidence is that Prickett was a com- pаny way car on his to a sales call. pursuant Zaldivar filed a “NoticeofFault of to OCGA Non-Part/’ (d) (l),2 asserting employer,
§ 51-12-33 that Prickett’s OverheadDoor Company, wholly partially by negligently entrusting was or at fault despite having anonymous the vehicle to Prickett received three people complaining driving. calls from about how Prickett had been reasoning, requested Based on this that, Zaldivar in accordance with (c), permitted § OCGA 51-12-33 the trier of fact be to consider the assessing percentages fault of Overhead Door when of fault for the accident that caused Prickett’s partial summary judgment
Prickett moved for on Zaldivar’s nonparty granted. fault, affirmative defense of which the trial court The trial court held: injuries
Overhead Door cannot be liable to Mr. Prickett for may he sustained that have been caused of negligence, [Zaldivar] or Mr. Prickett’s own as Overhead any legal duty Door was in not breach of owed to Mr. proximate Prickett, nor was it the cause ofhis under the facts of this case.
Accordingly, the trial court concluded that Zaldivar would not be permitted jury to have the consider the fault of Overhead assessing Door when fault for the accident that caused Prickett’s under § OCGA 51-12-33 refer to the settlement days prior (d) (1). “Negligence [2] to the date of trial that a agreement plaintiffs throughout wife, or fault of a Mary with the nonparty this sued for loss of consortium. For ease of opinion or if a shall be considered if the as “Prickett.” defending party gives wholly or at fault.” OCGA 51-12-33 notice not later than 120 plaintiff reference, entered into a we will contending ruling, appeals the trial court’s
Zaldivar now pеrcentage (c) a authorize a assess 51-12-33 would OCGA on a Door for the accident based fault theory. unpersuaded. We are required interpreting we are to consider a “When legislature. the intent of the When a whole and look for statute as language, language unambiguous will such contains clear and statute applied accordingly.”(Citation plain meaning given and will be its omitted.) Clary Assn., Lakes Homeowners Marino v. principles mind, turn these we With language Georgia’sapportionment statute, OCGA 51-12-33. provides (a) that the statute
Subsection according damages plaintiff’s her own shall be reduced to his or damages injury he or she sustained: of fault for persons brought against one or more Where an action is plaintiff injury property and the is to some for responsible damages degree claimed, faсt, of the total amount of trier of in its determination percent- any, damages age awarded, if determine the judge to be shall plaintiff and the shall reduce of fault of the plaintiff otherwise awarded to amount *3 proportion her of fault. to his or 51-12-33(a).Inturn,subsection(c)allowsadefendanttoask § OCGA a entity person or shared fault to determine whether some other though person entity plaintiff’s is even thаt other or for the (c). party. Specifically, 51-12-33 that subsection not a named OCGA provides: assessing percentages fault, trier shall “In of fact persons or entities who contributed to the consider the fault of all injury regardless person entity alleged damages, or or of whether (Emphasis was, been, named as a to the suit.” or could have supplied.) § 51-12-33 OCGA plain language apportionment
Based on the of the (c) “fault” cannot be assessed to a under OCGA 51-12-33 injury plaintiff’s alleged or unless he or she “contributed” to theory damages. supported if the Zaldivar’s that Overhead Even facts question negligently its truck to is Door entrusted alleged negligent entrustment contributed to Prickett’s whether the injury damages. Applying principles law, of tort the answer or basic is no. nonparty’s negligent to have “contributed”
A act cannot be said plaintiff’s injury damages unless there is a causal connection to a 1990) (noting Dictionary (6th ed. them. See Black’s Law between 362 “applied negligence signifies [the]
the term “contribute” when to injury negligence____”). [the] [the] causal connection between and See http://www.merriam- Dictionary, also Online Merriam-Webster’s webster.com/dictionary/contribute (defining help “contribute” as “to something happen”). nеgligent to cause In the context of entrust- case, however, ment as this that causal connection has been entrusting broken because the act of the truck to Prickett did not contribute to his
“Liability negligent predicated upon negli- is gent lending drive, act of the owner in his automobile to another to knowledge incompetent habitually with actual that the driver is (Citation punctuation omitted.) Heard, reсkless.” and v. Hicks App. 145) (2009). Generally, 689, however, Ga. negligent brought by injured entrustment claims or on behalf of an supplied driver who that driver with a vehicle are negligence disallowed, because the driver’s own breaks the causal negligent connection between the entrustor’s act and the driver’s injury. e.g., Ridgeway See, Whisman, peculiar despite
Thus,
facts,
under these
the defendant’s creative
argument
contrary,
еven if Prickett himself were determined to
partially responsible
injuries,
for his own
his own
any negligent
would break the causal connection between
employer
entrusting
act of his
Overhead Door
a vehicle to him and
any negligence by
such,
that Prickett sustained. As
Over-
entrusting
head Door in
the vehicle to Prickett cannot be said to have
damages,
“contributed” to his
and thus OCGA § 51-12-33
(c) simply
application.
has no
rеaching
conclusion,
this
we note that Zaldivar’s reliance on
Supreme
analysis
Court’s
of“fault” in
Inns,
Couch v.Red
Roof
(1) (
nonparty tortfeasors whose conduct was intentional
rather than
negligent,
and in that context the Court considered
responsibility
“fault,”
to conclude that
used in
as
(1).
statute,
Supreme
Couch,
included intentional conduct.
Furthermore, the Couch, Court in out (1), at 364 derogation [such “that statutes as OCGA 51-12-33 that in are] strictly meaning
of the common law must be limited language employed, beyond plain of the explicit and not extended the and (Citation punctuation omitted.)
terms of the statute.” and of inten- Supreme the inclusion conclude that on to Court wеnt The required meaning extension “no “fault” torts within tional beyond ” explicit ‘plain Id. § 51-12-33. terms’ of OCGA and [the] employer plaintiff’s Couch, a inclusion of in to the situation contrast theory nonparty against under the could be assessed whom fault as a beyond plain and negligent be an extension would of explicit only expressly applies (c), to which § 51-12-33 terms ofOCGA damages. injury plaintiff’s to those who “contributed” 51-12-33 reasons, that OCGA we conclude combined For these personal (c) permit in a motor vehicle the defendant does not plaintiff’s employer whom as a include the case to theory entrustment. under fault can assessed summary judg- partial granting in therefore did not err trial court on this issue. ment to Prickett Doyle, Ellington, Judgment J., J., Miller and Branch, J., P. P. affirmed. only. judgment
Boggs, Dillard, J., JJ., concurs concur. dissents. Judge, dissenting.
BRANCH, injuries her own that had sued Prickett fоr If Imelda Zaldivar Georgia accident, under she would be authorized resulted from and recover from to name Overhead Door as a defendant law prove her claim that Overhead Door Door if she could knowingly driver, i.e., Prickett, and entrusted a truck to a reckless negligence with Prickett’s that Overhead Door’s combined e.g., Dougherty Equip. resulting Roper, See, Co. v. from his recklessness. (2014). 885) And if Ga. only filed but named Prickett as a Zaldivar had suit — — employer could name Overhead Door his own as a Prickett try Georgia apportionment statute, reduce under damages by attempting assign for Zaldivar’s his own percentage for Zaldivar’s to Overhead Door of fault claiming employer negligently entrusted him with the that his own though the same Prickett’s resulted from truck. Yet even plaintiff, majority accident, Prickett is the holds that because prohibited making the same assertion that Over- Zaldivar is from responsible that for the accident head Door was at least majority result, the reads out Toreach this caused “ordinary everyday Georgia statute, Supreme meaning” which the Court of “fault” used explained, For these the term should be construed. has is how respectfully reasons, I dissent. 51-12-33, the trier of fact in this case will
Under OCGA required of “fault” of Zaldivar to determine the *5 any nonparty and who could be deemed at least “at fault” for injuries. Specifically, (a), under subsection the trier of fact required percentage plaintiff.” is to (c)provides the “determine offault ofthe And assessing percentages that, “[i]n fault,” subsection of required persons trier of fact is to consider “the fault of all or entities alleged injury damages[.]” who contributed tо the These determi- necessarily impact percentage nations will Zaldivar’s own of fault. The critical in issue person this case is whether Overhead Door can be considered a whose “fault” “contributed [Prickett’s] to injury,” such that the trier of fact should consider that fault when determining percentage Prickett’s own of fault as well as Zaldivar’s. important any
First, it is to note that determination of whether percentage nothing Overhead Door can be assessed a of fault has to assigning liability do with to Overhead Door for Prickett’s expressly by apportionment Indeed, that would be forbidden (f) explains percentages statute. Subsection “[assessments that of of nonparties only fault of percentage shall be used in the determination of the parties.” (Emphasis supplied.)
of fault of named
The
goes
рrovide
against
subsection
“[w]here
on to
that
fault is assessed
nonparties pursuant
findings
section,
to this Code
of fault shall not
subject any nonparty
liability
any
to
in
action or be introduced as
liability
any
(Emphasis supplied.)
evidence of
in
action.”
Thus the
legislature
specifically
nonparties
has
insulated
who are “assessed a
percentage
having
of fault” from
that assessment used
them
any way.
legislaturе
provided
The
also has
that a
can be
percentage
“regardless
assessed a
of fault
of whether the
entity
party
was,
been,
or could have
named as a
to the suit.”
provisions
plain language
OCGA § 51-12-33
These
show that the
equate
concept
of the statute
used in the
“fault,”
does not
of
as that term is
apportionment
liability.
with tort
Supreme
Georgia’s
Court of
construction of the term “fault”
supрorts
as used in the statute
this conclusion. See Couch v.Red Roof
Supreme
Inns,
between the owner and the criminal assailant. The court art, reasonеd that “since ‘fault’is not a term of but is a of word action, “appor- Because the criminal assailant was not a named no literal statute; (b) rather, Supreme tionment” of was authorized subsection of the appears “apportionment” broadly assessing Court here to use the term to refer to the criminal assailant’s of fault. ” meaning,’ ordinary everyday given general use, it its and is to wrongly negli- meaning “broаd,” “includes ‘conduct done ” supplied). (1) (emphasis gently.’ is not Thus “fault Id. at negligence, synonymous but instead includes other meant with plain meaning types wrongdoing.” Thus, and the Id. both Couch support that the statute considers § 51-12-33 the conclusion OCGA percentages fundamentally concepts: fault, in its different two plaintiff’s injuries; general sense, all contributed to the for who legal liability parties. named
Following language and the оf the statute reasoning Supreme Court, of the I would conclude that addition concept legal liability, be considered the “fault” is to *6 apportion- assessing percentages of fault under the trier of fact when degree sufficiently broad to include the to which ment statute is caused the accident that resulted Overhead Door can said to have though in liability even Overhead Door could havе no Prickett himself. party negligent entrustment, if Under tort “a is liable he knowledge instrumentality, actual that entrusts someone with an with instrumentality is incom- the petent by to whom he has entrusted age inexperience, physical his or mental
reason of his or Booker, condition, 259 or his known habit of recklessness.” Gunn v. (3) (381 286) (1989) (citations 343, Ga. SE2d footnote omitted). Ridgeway App. (435 Whisman, See also v. 210 Ga. SE2d 624) (1993). Importantly, negligent entrustment is not a form of liability; independent wrongful rather, it that vicarious is an act can negligence combine with the of the entrustee: negligent of the owner in a entrustment action imputing negligence does not result from of the incom- petent “negligent [;] driver to the owner rather incompetent indepen- of a motor vehicle to an driver is an wrongful dent act of the vehicle’s owner which is a concur- proximate rent, cause of when it combines with the negligence operator.” of the
Ridgeway, App. quoting Adams, 210 Ga. at Adams & Ga. Law of (1989) (citation omitted). Harmon, Torts, v. § 12-5 See also Hook 143) (2012) (“Liability requires proof App. 278, 279 also Ga. concurring proximate ofthe that the entrustor’s is a cause along any negligence by arising accident, from with entrustee omitted). incompetency recklessness.”) (citation Thus, a can employer-employee be liable for entrustment without an employee relationship relationship or within such a where acting scope employment. e.g., Roper, See, his outside of 327 Ga. App. (2) against employer (negligent at 438 entrustment claim allowed scope though employee acting employment even outside ofthe accident). at the time of the
Simply put, plainly duty negligently Overhead Door has a not to duty vehicles, entrust others with its and a violation of that lead can against to accidents. The fact that an action Prickett might contributory negligence Door be barred Prickett’s own legal another doctrine does not affect It this conclusion.4 follows that incompetent yet if Overhead Door knew that Prickett was to drive despite knowledge, entrusted a vehicle to him it could not be said — ordinary that Ovеrhead Door was without fault under the — everyday meaning required by causing of that term as Couch accident, even if Overhead Door could not be found liable to alleged negligent Prickett. Overhead Door’s entrustment could be proximate seen as a concurrent cause ofthe accident if even Overhead directly employee. Accordingly, Door could not found liable to its bearing Overhеad Door could be considered as “fault” for the accident that caused Prickett’s under OCGA § 51-12-33. supported by
This Farmer, conclusion is Barnett 570) (2011) (physical precedent only), 358, 362 a suit suit only brought with one in which Mr. and Mrs. Farmer against plaintiffs Barnett, and both and defendant claimed the other light. requested charge ran a red Id. Barnett that the court ground on ofMrs. Farmer’s claims him on the *7 driving, Farmer, that Mr. who was was at fault for the therеby accident and that he contributed to his wife’s Id. This Court concluded that the should have been instructed to apportion any damages according award of to Mrs. Farmer to a co-plaintiff determination of the of fault of Barnett and any, despite Farmer, Mr. if the fact that Mr. Farmer would be protected by interspousal from in a suit Mrs. Farmer immunity tort doctrine. Id. This Court reasoned: contrary legislature would
[I]t to the clear intent of the require pay Shirley’s Barnett for the full amount of 4 Hook, generally App. (“[Wjhere injured party entrustee, See 315 Ga. at 279 is the his contributory negligence generally recovery against own entrustor.”) will bar him from (citation omitted); Ridgeway, App. (entrustee’s and footnote 210 Ga. at 170 contributory negligence, both, negligence, or an unnamed driver’s amounted to the sole proximate injuries; cause of the entrustee’s therefore the entrustor could not liable to the parents injuries). entrustee’s for the entrustee’s simply
damages was a because she collision for the same driving. passenger . . . Our her husband in the car against requires Shirley way holding her to file suit in no recovering precludes from instead, her from husband, but any, damages, portion that a trier if of her Barnett that negligence of her husband. resulted frоm fact concludes reasoning persuasive. (2). Here, has even if Prickett This Id. at 362 contributory his own Door because of Overhead no claim negligence, portion Prickett for that be liable to should not Zaldivar resulted from trier fact concludes that a of Prickett’s cause of the accident. Door’s contribution distinguishable Corp. at Fields is Carbide v. The case of Union part Couch and it does not it was decided before least in because Corp. employ v. “fault.”5 See Union Carbide Couch’s definition of 521) (2012) (trier (1)(a) (726 offact Fields, 554, 557 315 Ga. employed apportion nonparty that victim’s not authorized to fault to duty Georgia, employer owes no of care to a father because in third-party, nonemployee, “an employee’s comes into contact with its who away clothing at locations from work asbestos-tainted work separate grounds place”) (citation punctuation omitted), rev’d on by Georgia-Pacific Fields, reasons,
For the above I would hold that the trial court erred dismissing against Overhead Zaldivar’s assertion of fault Door. — July 16,
Decided Downey Hynes, Colby Cleveland, Jones, Andrew A. & Sean L. J. appellant. Curtright, for appel-
Slappey Wynn, Sadd, Sadd, M. & James N. Edward lees. law, Furthermore, Carbide, Georgia issue as a matter of at in Union *8 Here, hand, Pacific) duty any (Georgia in the on the other owed no named suit. public, necessarily duty not to which includes Overhead Door owed a
negligently employees. entrust vehicles to its