If you are in an accident, and you sue the other driver for negligence, can the other driver turn around and argue your employer—who is not a party to the lawsuit—was partially to blame for letting you drive its car? That was the unusual question presented to the Georgia Court of Appeals. In a decision issued on July 16, a seven-judge panel of the Court rejected what it dubbed a “creative argument” by a defendant trying to mitigate her own potential liability.
Zaldivar v. Prickett
In 2009, two vehicles collided at an intersection. Although both drivers suffered injuries, only one driver sued the other for negligence. The other did not file a counterclaim.
Both drivers maintain the other caused the accident. The plaintiff was driving a car owned by his employer. The defendant driver argued, as an affirmative defense, the employer was “wholly or partially at fault for negligently entrusting” one of its vehicles to the plaintiff, who had “received three anonymous calls from people complaining about how [the plaintiff] had been driving.” The plaintiff asked the trial court for summary judgment on this point, and the judge agreed. The defendant then appealed.
Under Georgia law, a court must apportion damages for negligence based on the relative fault of all responsible parties, even persons or entities who are not parties to the actual lawsuit. Here, the defendant argued the plaintiff’s employer was partially responsible for the injuries suffered by the plaintiff. The Court of Appeals was unwilling to accept this as a valid outcome under Georgia tort law.
Presiding Judge Anne Elizabeth Barnes, writing for the majority of the Court, said even if the plaintiff “were determined to be negligent and partially responsible for his own injuries, his own negligence would break the causal connection between any negligent act of his employer  in entrusting a vehicle to him.” A court may only apportion liability to a non-party if it “contributes” to the plaintiff’s injuries. As Judge Barnes explained, while the employer’s alleged negligent entrustment may have contributed to the defendant’s injuries—and remember, she did not file a claim for damages—it cannot contribute to the plaintiff’s injuries.
One judge disagreed. Judge Elizabeth L. Branch filed a dissenting opinion. She argued it made no sense that the plaintiff could assign partial liability to his employer but the defendant could not. After all, Judge Branch said, both parties “injuries resulted from the same accident.” She said Georgia law was only concerned with assigning “fault” for the accident rather than liability for the plaintiff’s injuries. The issue is not whether the plaintiff could sue his own employer for giving him a vehicle; the issue is whether the employer’s negligence contributed to the accident.
The majority’s position is now the law, however, and Judge Barnes made it clear a defendant cannot seek to apportion any blame for an accident on the plaintiff’s employer. Keep in mind, the appeals court has not decided the merits of the plaintiff’s lawsuit, as the case now continues before a trial court.