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Georgia’s Continuing Battle Over Respondeat Superior And Apportionment Claims – Personal Injury



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Atlanta, Ga. (June 22, 2022) – Respondeat
superior
claims in Georgia continue to be a hot button topic.
Several key legal updates occurred, which swung the needle in both
directions, affecting both liberal and conservative applications of
the claim. Georgia courts have traditionally recognized the
doctrine of respondeat superior – a doctrine that
simply means an employer can be held liable for the actions of an
employee, if an employee was operating in the course and scope of
their employment at the time of the underlying incident.

Under a long-standing procedure, following the Georgia Tort
Reform of 2005, when “an action is brought against more than
one person for injury to person or property,” Georgia’s
Apportionment Statute, Section 51-12-33(b) requires a jury to
assign the percentages of fault among those parties found liable,
for the purposes of ascertaining damages. As a result, the claims
encompassed by the respondeat superior rule are claims
that the employer is at “fault” within the meaning of the
statute. Significantly, by following the applicable statute, a jury
would be restricted from assigning fault to the employer separately
from the employee’s fault under the claims of negligent
entrustment, hiring, training, supervision, and retention. Thus,
commercial carriers and similar employers that admitted vicarious
liability were then, under respondeat superior, entitled to summary
judgment on the above noted direct employer negligence liability
claims.

However, in 2020, the Georgia Supreme Court, in Quynn v.
Hulsey
, et. al., 310 Ga. 473 (Ga. 2020), held that Georgia law
requires “once liability has been established and the damages
sustained by the plaintiff have been calculated, the trier of fact
must then assess the relative fault of all those who contributed to
the plaintiff’s injury — including the plaintiff himself
— and apportion the damages based on this assessment of
relative fault.” Thus, the Georgia Supreme Court surprisingly
set a precedent that Georgia’s Apportionment Statute, O.C.G.A.
§ 51-12-33, abrogated, what the court called the
Respondeat Superior Rule.” The court
essentially reasoned that the language of apportionment required a
sitting jury to consider fault amongst all parties and that the
Apportionment Statute preempted the Respondeat Superior
Rule. Critically, this ruling gutted the ability for employers that
concede vicarious liability to avoid unnecessary additional
exposure.

Then, the Georgia Supreme Court further constricted
apportionment applications to defendants where only a single
defendant was named at the time of trial. In Alston & Bird
v. Hatcher Management Holdings
, 355 Ga. 350 (2020),
Georgia’s highest court found that Section 51-12-33(b) does not
permit any reduction of damages concerning non-party fault when a
case involves a single defendant. More specifically, the court
reasoned that strict construction of the Apportionment Statute does
not allow for non-party fault protection in a case brought against
only one defendant because the statute states it must be
“brought against more than one person.” As a result,
subsection (a) of the statute applies, permitting a reduction in
damages against a plaintiff only and not non-parties.

Fortunately, the Georgia Legislature went to work to clarify any
misapplied interpretation read into the Apportionment Statute. On
May 13, 2022, the Governor of Georgia signed into law HB 961, which amended the Apportionment Statute
to correct the language of subsection (b), once again allowing a
defendant or defendants – no matter the number named in a
suit – to apportion fault towards all parties and
non-parties.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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