Although cases involving employer liability based on either direct or vicarious theories of tort law are far from uncommon, the Georgia Court of Appeals recently rendered a decision concerning a novel issue regarding employer liability and O.C.G.A. § 51-12-33 (c) of Georgia’s Apportionment Statute. The case, Zaldivar v. Prickett (PDF-downloadable link), dealt with whether a defendant in a personal injury suit could invoke O.C.G.A. § 51-12-33 (c) to apportion damages against a non-party employer whom the defendant claimed negligently entrusted the vehicle to the plaintiff.
Zaldivar arose from a motor vehicle accident on October 9, 2009, when the plaintiff and the defendant in this case collided at an intersection. The plaintiff asserted that he was clearing the intersection by turning left after the light turned red, and the defendant claimed that the plaintiff turned left in front of her as she entered the intersection on a yellow light. Both parties were injured in the accident, and it is undisputed the plaintiff was driving his employer’s vehicle at the time of the collision, which took place as the plaintiff was headed to a sales call. A little less than two years thereafter, the plaintiff filed the complaint in this action, to which the defendant answered. Although the defendant had also been injured in this case, she did not assert any counterclaims. However, the defendant did assert non-party fault as an affirmative defense and filed a “Notice of Fault of Non-Party” pursuant to O.C.G.A. § 51-12-33 (d)(1). The defendant asserted that the plaintiff’s employer was at fault by negligently entrusting the vehicle to the plaintiff despite having received several calls in the past complaining about the plaintiff’s driving.