Apportionment of fault in Georgia truck cases

Reduction for the plaintiff's own fault and the 50 percent bar

Section 51-12-33(a) applies 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." In that situation, whether the defendant is a truck driver or some other person, the trier of fact, while determining the total amount of damages to be awarded, if any, also determines the percentage of fault of the plaintiff. The judge then reduces the amount of damages otherwise awarded to the plaintiff in proportion to that percentage of fault. When a truck driver or a trucking company is sued in such an action and the plaintiff is found partly at fault, the same proportional reduction applies, unless the plaintiff is 50 percent or more responsible and the bar in Section 51-12-33(g) controls instead.^[1]

Section 51-12-33(g) adds a separate bar that reaches truck crash plaintiffs as well as others in actions for injury to person or property. It opens with the words "Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary" and then provides 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." The proportional reduction under subsection (a) thus has room to operate only for a plaintiff who is not 50 percent or more responsible. That bar applies in a truck accident action for injury to person or property in the same terms as in any other such action.^[1]

Court decisions decide how fault percentages are assessed on particular facts under Section 51-12-33, including in truck crash cases, and this entry does not cover those decisions.^[1]

Apportionment among defendants and the end of joint liability

Section 51-12-33(b) applies where an action is brought against one or more persons for injury to person or property. In that action, as in any truck crash case brought in that form, the trier of fact, in determining the total amount of damages to be awarded, if any, first makes any reduction called for by subsection (a) for the plaintiff's own fault. It then shall "apportion its award of damages among the person or persons who are liable according to the percentage of fault of each person." In a suit of that kind naming a truck driver and a trucking company as defendants, the trier of fact apportions the award between whichever of them it finds liable, according to each one's percentage of fault.^[1]

Section 51-12-33(b) also fixes the character of apportioned damages, whether the persons liable are truck drivers or others. Damages apportioned by the trier of fact under the Code section "shall be the liability of each person against whom they are awarded" and "shall not be a joint liability among the persons liable." Under that text, a defendant in a truck accident action is liable for the share apportioned to that defendant, and that share is not shared with other defendants as a joint obligation. The same sentence of subsection (b) provides that damages so apportioned are not subject to any right of contribution, and that rule reaches an apportioned share owed by a truck driver as it reaches any other liable person's share.^[1]

The notes on the official code page show that the amendment they list as effective May 13, 2022, changed the first sentence of subsection (b) of Section 51-12-33. It substituted "one or more persons" for "more than one person" near the beginning of that sentence.^[1]

The same amendment inserted the words person or near the end of that sentence, so that Section 51-12-33(b) now directs apportionment among "the person or persons who are liable." With that wording, subsection (b) reaches an action against a single person, such as one truck driver, as well as an action against several persons.^[1]

Fault of nonparties and the notice requirement

Section 51-12-33(c) directs that, 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." That consideration applies "regardless of whether the person or entity was, or could have been, named as a party to the suit." In a truck crash action for injury to person or property, the persons or entities considered under subsection (c) are therefore not limited to the named defendants. Section 51-12-33(d) then sets the conditions for weighing a nonparty's fault in a truck accident case, which turn on a settlement with that nonparty or a defending party's notice.^[1]

Section 51-12-33(d)(1) states: "Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty". Nonparty fault also counts under Section 51-12-33(d)(1) when "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." The 120 days are measured back from the date of trial, and the notice deadline applies to any defending party, including a truck driver sued for injury to person or property.^[1]

Section 51-12-33(d)(2) governs the form of that notice, whether a trucking company or a truck driver gives it. The notice is given "by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address", or the most precise identification of the nonparty possible under the circumstances. The pleading also includes "a brief statement of the basis for believing the nonparty to be at fault." A defending truck driver who names a nonparty follows that same form.^[1]

Section 51-12-33(f)(1) provides that assessments of percentages of fault of nonparties "shall be used only in the determination of the percentage of fault of named parties." Under Section 51-12-33(f)(2), where fault is assessed against nonparties under the Code section, findings of fault "shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action." A nonparty assessed with fault in a truck crash case is not made liable by that finding. Under subsection (f)(2), that finding also cannot be introduced as evidence of liability in any action, including a separate truck accident suit.^[1]

Preserved defenses and the avoidance rule

Section 51-12-33(e) states: "Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section." The apportionment rules thus leave in place existing defenses and immunities available to a defendant in a truck accident action, except where Section 51-12-33 expressly provides otherwise.^[1]

O.C.G.A. 51-11-7 provides: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." Section 51-11-7 continues that "In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained."^[2]

The history line on the official page for O.C.G.A. 51-11-7 begins with Orig. Code 1863, Section 2914, and ends with Code 1933, Section 105-603. In a truck crash suit, as in other cases, the bar in Section 51-11-7 turns on whether the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence.^[2]

Enactment, amendments and applicability dates

The history line on the official page for O.C.G.A. 51-12-33 shows Code 1981, Section 51-12-33, enacted by Ga. L. 1987, p. 915, Section 8, followed by the amending Acts Ga. L. 2005, p. 1, Section 12/SB 3 and Ga. L. 2022, p. 802, Section 1/HB 961. Those entries record the enactment of Section 51-12-33 in 1987 and its later amendment in 2005 and in 2022.^[1]

According to the notes on the official code page, an uncodified provision of the 2005 Act, Ga. L. 2005, p. 1, Section 15(b)/SB 3, provides that its amendment of Section 51-12-33 applies only with respect to causes of action arising on or after February 16, 2005. Prior causes of action, including a truck accident cause of action that arose before that date, continue to be governed by prior law. The same notes record that, pursuant to Code Section 28-9-5, the Code Commission in 2005 substituted "or" for "and" near the beginning of subsection (g).^[1]

The notes for Section 51-12-33 also quote uncodified findings in Ga. L. 2005, p. 1, Section 1/SB 3, stating that the General Assembly found that "there presently exists a crisis affecting the provision and quality of health care services in this state." The findings describe difficulty for hospitals and other health care providers in locating liability insurance, and they add that certain needed reforms in the Act affect other civil actions as well as health care liability claims.^[1]

According to the notes on the official code page, the amendment made by Ga. L. 2022, p. 802, Section 1/HB 961 became effective May 13, 2022. The notes also record that Ga. L. 2022, p. 802, Section 2/HB 961 provides that the Act shall apply to all cases filed after May 13, 2022. Under those notes, the revised wording of subsection (b) reaches cases filed after that date, including a truck crash suit seeking damages for injury to person or property.^[1]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)