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## In the Court of Appeals of Georgia

A14A0113. ZALD IVAR v. PRICK ETT e t al. B ARNES , Presiding Judge. This appeal add resses the questio n whether, pu rsuant to OCGA § 51-12-33 (c) of Georgia’s apportionment statute, a def e nda nt may

ask a jur y to det ermi

ne that a non-party pl ain ti ff’s emp loyer

sha res a p ercen tage o f the f ault for th e plai ntif

f’s injuries because t

he em ployer negligently

entrusted

the plainti ff with o ne of its vehicles. Granting partial summ ary judgm ent to the plaintiff, the trial court answered this question in the negative. Because under the facts of

this case the action s of the plai ntif f’s emplo yer di d not “c ontribute” to the plainti ff’s alleged inj ury or damages, OCG A § 5 1-1 2-3 3 (c ) is no t ap pl ica bl e, a nd we t her efo re a ffi rm. Su mm ary judg ment is proper when there is no genuine issue of ma terial fact and the movant is entitled

to judgment as a m

atter of law. O CGA § 9- 11-56 (c). We review a grant

or denial of summa

ry judgm ent de novo a

nd construe

the eviden ce in the light most fav orable to t he nonmovant

. Home B uilders As sn. of Sava nnah v. Chatham Co unty , 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).1 Pricket t’s wif e, Mary Pricket t, sued fo r loss of c onsortium . For ea se of reference, we will refer to the p laintiffs through out this opinion as “Prickett.” 2 The record reflect s that on October 9, 20 09, Da n iel Pric kett and Im elda Zaldivar collided a

t an inters ection cont

rolled by a traff ic light. B oth Pricke tt and Zaldivarwere in

jured, and Zaldivar was taken fro m the scene to a hospital in

a n ambulance. Prickett sued Zaldivar on September 13, 2011, seek ing to recover

for personal injurie s, 1 and she wa s served on Septem ber 22, 2011. On O ctober 21, 2011, Zaldivar filed an answer

to Pricke tt’s com

plaint, c laimi

ng as affi rmat ive defenses that the compl aint fail ed to state a claim for reli ef; proce ss and

se rvice of process was insuffici ent; jurisdiction was improper; venue was im proper; and the action was barred by t he s tat ut e of

limi tat io n. Z ald iv ar d id no t fi le a cou nt erc lai m a gains t Prickett, de spite hav ing been i njured in th e collisi on. In discovery , Prick ett claim ed he was clearing the intersection by turning left after the light turned red; Zaldivar claimed that Prickett turned left in fr ont of her as she entered

the intersection on a yellow light. The evidence is undisputed that Pric kett was drivin g a company car on his way to a sales call

.2 “Ne gligence or fault of a nonparty shall be consideredif the plaintiff entered into a settlem

ent agree ment

with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty

was whol ly

or partially at fault.” OCGA § 51-12-33 (d) (1). 3 Zaldivar filed a“No tice of F ault of No n-Party ” pursuant to OCGA

§ 51-12-33 (d) (1), 2 asserting

that Pricket

t’s em ployer , Overh ead Door

Compa ny, w as wholly

or partially at fault b y negli gently

entrusting the vehicl e to Pric kett despit e havin g received three anonymous calls fr om people c ompla ining about how Prickett had been dri ving. Base d on this rea soning, Za ldivar re quested tha

t, in acc ordance w it h OCGA § 51-12-33 (c), the trier of fact be perm itted to consider

the fault of Overhead Door when assessing percentages of fault for the acci dentthat c aused Prick ett’s injuries. Prickett moved for partial s umma

ry judgment on Zaldi var’s a ffirmative def ense of non-par

ty fa ult, whic h the trial

court gra nted. Th e trial c ourt held, Overhead Door can not be liabl e to Mr. Prickett for injuries he sustained that may have been caused b y the neg ligence of [Zaldivar] or Mr. Prick ett’s own negligence, as Overhead Door was not in breach of any legal duty ow ed to Mr. Pricket t, nor w as it the pr

oxima te cause o f his injuries un der the facts of this cas e.4

Acco rdi ngl y, the trial court concluded that Zaldivar would not be

permitted to hav e the jury consider t

h e al leged fault of Over

head Door

when asse ssing fault

for the accident t hat caused Prickett’s in juries und er OCGA § 51-12- 33 (c). Zaldivar now appeals the trial cour t’s ruli ng, conten ding that O CGA § 51- 12- 33 (c) would authorize a jury to assess a

percentage of fault against O verhead D oor for the accid ent based on a negli gent entru stment theory. We are unp ersuaded. “When interpreting a statute, we are required to consider the statute

as a whole and look for the

intent of t

he legisla

ture. W hen a statu

te con tains clearand unambi guo us la nguage, su ch language will be gi ven its plain mea ning and wil l be applied accordingly.” (Citation om itted.) Marino v. Clary Lak es Home owners As

sn. , 322 Ga. A

pp. 839, 84 4 (2) (747 SE2d 31) (2013). With the se princip les in m ind, we turn to the l anguage of

Georgia ’s appor

tionment statute, OCGA

§ 51-12-33. Subsec tion (a) of t he app orti onment statu te pro vide s tha t the p lain tiff’s damages shall be reduced ac cording to hi s or her ow n per centage of

fault for the injury or dam ages he or

she sustain ed: Where a n a ction is bro ught against one or more perso ns for inj ury to person or property and the plaintiff is t o s ome degree responsible f or the injury or d amag es c lai me d, the trier of fact, in its dete rmina

tion of the total amount of dam ages to be awa rded, if any, shall determine

the5

percentage of

fault of t he plaintiff

and the j udge shall reduce theamoun t of damages otherw ise awar

ded to the pl aintiff in proportion to his or her percentage of fault. O CG A § 51-12-33 ( a). In t urn, subse ction (c) allows a defendant to ask a j ury to determ ine whether

some other

person or entity shared fault for the plaintiff’s injuries

even though that ot

her perso n or entity

is not a nam

ed party . OCG

A § 51-12- 33 (c). Spe cifi call y, that subsec tion provide s: “In assessing p ercentages of fault, the trier of fact shal l consider t

he fault of all persons o r entitie s who contributed to the alleged injury or d ama ges , regar

dless of w

hether the

person or entity w as, or c ould have been, named as a par ty to the suit .” (Emphasis sup plied.) OCGA § 51 -12-33 (c). Based on the plain

language of

the appo rtionm ent statute, “fa ult” cannot

be assessed t o anon-party

under OC GA § 51-1 2-33 (c) unle ss he or she “cont ributed” to the pla intiff’s alleged injury or dam ages. Even if the facts supported Zaldivar’ s theory that Overhead Door negligently entrusted its truck to Pricke tt, the questio n is whe ther the negligent entrustmen t contributed

to Prickett ’s alle ged injur y or da mage s. Apply ing basic pr

inciples of

tort law , the answ er is no. A non-party’s negligent act cannot be s aid to have “co ntri bute d” to a plai ntif f’s injury or dam ages unless there is a causal co nnection

between them. Se e Black’s Law6

Dictionary

(6 th ed. 1990) (notin g that the term “ contribute ” when “ applied to negligence sign ifies [the] ca usal conn ectio n bet ween [t he] inju ry and [t he] n egli gence

. . . .”). See also Merriam –W ebster’s Online Dictionary , http://www.merr

iam-webster. com/d

ictionary /contribute

(defining “contribute” a s “t o help to cause somet

hing to h appen”). In the context of negligent entrustment as allegedin this case, however, that causal connection has been broken because the act of entrust ing the truc k to Pricke tt did not cont ribute to hi s injurie s. “Li ability for neglig ent entrus tment is predica

ted upon a ne gligent ac t of the

owner in lending his autom obile to another to drive, w ith actual kno wledge th at the driver is incompeten t or habit ually reckless .” (Citation and punct uation o mitted.) Hicks v. Hea rd , 29 7 Ga. App . 68 9, 6 91 ( 2) (6 78 S E2d 145 ) (20 09) . Gen eral ly, ho wev er, neg li gen t en tru st ment cla ims brought by or on behal f

of an injured driver against the person

who supplie d that driver with a vehicle are disa llowed, because t

he dri v er’s own ne glig ence b reaks the ca usal conn ectio n bet ween t he ent rust or’s negligent act and the

driver’s injur y. See, e.g., Ridgeway v. Wh isman , 210 Ga. A

pp. 169, 170 (435 SE2d 6 24) (1993 ). Thus, under these peculiar facts, despite the

defendant ’s cre ative arg

ument to the con tra ry, e ven if P ric ket t h imse lf w ere det ermi ned to be negligent a nd partial ly7

responsible

for his own injuries, h is own negligence would break the causal connection

between any negligent a ct of his e mployer Over head Door

in entrusting

a vehicle to him a

nd the inju

ry tha t Pricke tt sustaine d. As suc h, any negligence

by Overhead Door in en

trusting the

vehicle to Picket c annot be sai d to have “cont ributed” to his injuries or damages, and thus OCG A § 51-12-33 (c) simply has no applicat

ion. In reaching this conclusion, we note that Zaldivar’s reliance on the S up reme Court ’s analy sis of

“fa ult” in Couch v. Red Roof Inns , 291 Ga. 359, 359-36 6 (1) (729 SE2d 378) (2012) , is misplaced. In t hat cas e, t he S up reme Court addressed whether OCGA § 51-12-33 applies to non-party tortfeasors whose conduct was intentional rather than negligent, and in that co ntext the Court c onsidered l iability and responsibil ity

to conclude that “fault,” as used in the apportionment statute, included intentional conduct. Couch , 291 Ga. a t 363 (1) . The S uprem e Court’ s definitio n of “fault” shoul d not be rea d more broadly than that. Furthermore, the Supreme Court pointed out in Couch , 291 Ga. at 364 (1), “that statutes [such as OCGA § 51-12-33 that are] in derogat ion of the c omm

on law m ust be limit ed strictl

y to the m eaning of t

he language

emplo yed, and not extended bey ond the plain a

nd explicit

terms of the stat ute.” (Citation and punctua

tion om itted.) The8

Sup reme Court went on to conclude that the inclusion of intentional torts wit hin the

mean ing of “f

ault” req uired “ no extension

beyond [the] ‘p lain and ex plic it ter ms’” of OCGA § 51-12-33. Id. In contra st to the sit uation in Couch , incl usio n of a p lain tiff’s employer as a nonpar

ty against whom

fault coul d be assess ed u nde r the theor y of negligent entrustm ent would be

an extensi on beyond the plain and explic it term s of OCGA § 51-12-33 ( c), whi ch express ly appl ies only to tho se who “ contribute d” to the plainti ff’s alleged inj ury or damages. For these combined reasons, we conclude that OCGA § 51-12-33 (c) does not perm itthe defen dant in a m otor vehicle personal injur y case to inclu de th e plai ntif f’s employer as a non-p arty agains t whom fault ca n be assess ed under the

theory of negligent entrustm

ent. The tr ial co urt therefore did not err in granting partial summary judgment to Prickett o n this is sue. Judgment affirmed. El lington , P. J., Doyle, P. J., Mi ller, J., and Bo ggs, J., concur. D illard, J. , concurs in judgment only. B ranch, J. , dissents

.A14A0113. ZALD IVAR v. PRICK ETT e t al.

B RANCH , Judge, dissenting. If Ime lda Zaldivar had sue d Pricket t for her own injur

ies that resulted fr

om the accident , she would be authorized under Georgia l aw to name Overhea d Door as a defendant and recov er damages from Overhead Door if she could prove herclaim that Overhead Door knowingly entrusted a truck to a reck less drive r, i.e ., Pri ckett, a ndthat Overhead Door’s negligence

combined with P rickett’ s negligenc e resultin g from his reckless ness. See, e.g., Dougherty Equip. Co. v. Roper , _ Ga. App. _ (2) (757 S E2d 885) (2014). And if Z aldivar ha d filed suit but only name d Pricket

t as a def endant , Prickett could name Overhead Door – his own em ployer – as a non-party under the Georgia apportionment statute, and try to reduce his own liability for Zaldivar’ s damages by attem

pt ing to assign a

percentage of fault for Zaldivar’ s injurie s to Overhead Door by claiming that

his own em

ployer negligently

entrusted him w ith the truck. Yet even though Prickett’s injuries resulted from the same ac cident, t

h e maj ority holds that because Prickett is the plaintiff , Zaldi va r is prohibi ted from makin g the sam e asserti on that Overhead Do or was at least p artially

responsible

for the accident

that cause d Pricket

t’s inj uries. To reac h this result, the maj ority reads out of the Geor gia apporti onment

statute, the “ ordinary

and every

day m eani ng” of

“fa ult”2

used in that sta

tute, wh ich the Sup reme

Court has e xplained, is how the term should be construe d. For the se reason s, I respectfully dissent. Under OCGA § 51-12-33, the trier of fact in this cas e will berequired to determ ine the percentage of “fault” of Pr ickett, Zaldivar

and any non-party

who could be deemed at leas t partial l y “a t fault” for Prickett’s injuries. Spec ifically, under subsection

(a), th e trier o f fact is required to “de termine the percentage of f ault of the plainti ff.” And subsec tion (c) pr ovides that, “[i]n assessing percentages of fault, ” the trier of fact is required to consider “the fault of all persons or entities who contributed to the alleged injury or damages[.]” These determ inations necessarily will impact Zaldi var’s own percentage of fault. The critical issue in this case is whether Overhead Doo r ca n be considered a person whose “fault” “ contributed to [Prickett’s] alleged injury,” such that th e trier o f fact sh ould conside r that fa ult when determ

ining Prickett’s own percentage of fault as wel l as Zaldiva r’s. First, it is important to note that any determ ination of whether

Overhead

Door

can be assesse d a perce ntage of f ault has not

hing to do w ith assigning liability to Overhead Door for Pricket t’s inj uries. I

ndeed, tha

t would be e xpressly

forbidden by the apportionm

ent statute . Subsec tion (f) e xplains that “ [a]sse ssmen ts of percentages of fault of nonparties shall be used only in the dete rmina

tion of thepercentage of fault3

of named parties .” (Em

phasis suppli ed). T he subse ct ion goes on to provide that “[w] here fault is assessed against nonpa rties purs uant to this C ode section, findings of faul t shall not subject any nonparty to liability in any action or be introduced as evidence of liabili ty in

any action.” (Emphasis supplied). Thus the legislature has specific ally

insulated n on-partie s who are “ass essed a pe rcentage

of fa ult” from having that assessment used ag ainst them

in any way. The legis lature al so has also provided that a nonpa

rty can be assessed a percentage of fault “regar dless of whether the person or entity w as, or c ould have be en, name d as a par ty to the sui t.” OCGA § 51-12-33 (c). T

hese provis ions show tha t the plain l anguage of

the statute

does not equate the concept of “fault,” as that term is used in the

apportionm

ent statute , with tort liab ility. The Georgia Supreme Court’ s construction of the ter m “f ault” as us ed in the statute supports this conclusion. See Couch v. Red Roof Inns , 291 Ga. 359 (1) (72 9 SE2d 378) (2012) . In Couch , the Supreme Court ex amine d the m eaning of the term “fa ult” as found

in OCGA

§ 51-12-33 a s a part of

determ ining, in a premises liabil ity action with one defendant, thatthe jury should be allowed to consider the fault of a1 Because the crim inal assai lant

was not a named party

to the action, no literal “appo rtionm ent” of

damages was a

uthorized b y

subsection (b) of the statute; rather, the Supreme Court he re appea rs to use the ter

m “ apportionm

ent” broa dly to refer to assessing th e crim

inal assai lant’s p ercentage of fault.

4 nonparty criminal assai lant and to “ apportion” 1 its awar d of dam ages betw een the property owner and the cr

iminal assailan

t.The c ourt reas oned that “ since ‘ fault’ is not

a term of art, but a w ord of general use, it is to be given its ordinary and everyday meaning ,’” the m eaning is “ bro ad,” and “incl ude s ‘co ndu ct d one wron gly or negl igen tly.’” Id. at 361 , 362 (1) (e mphas is supplied) . Thus “ fault is not m eant to be synony mous with negli gence, b ut instead includes other type s of wrong doing.” Id

. Thus, both Couch and

the plain m

eaning of OCA

§ 51-12-33 su

pport the c onclusion that the statute co nsiders tw o fundam entally different concepts : percentages of fault, in its general sense, f

or all who contributed to the plaintiff’s injuries; and legal liability for named partie s. Following

the langua ge of

the apportionm

ent statute

and the re asoning of th e Sup reme Court, I

would conclude that in addition t o the conce pt of legal liability , the “fa ult” that is to be cons idered by the trier of

fact wh en assessing percent ages of fa ult underthe apport

ionme nt statute i s sufficiently br oad to includ e the degree to which5

Overhead Door can

be said to ha

ve caused the accid ent that re sulted in Pricket t ’s injuries ev en thoug h Overhead Do or could h ave no liab ility to Prick ett himself. Under the tort of negligent entrustm ent, “ a party is liable i f he entr

usts someo ne with an instrumentality, with actual knowled ge that t he person to whom he has entrusted the instrum

entality is incom petent by reason of his age or

inexperience, or his physic al or

menta l c ondition, or his known habit of recklessness.” Gunn v. Booker , 259 Ga. 3 43, 347 (3) (38 1 SE2d 286) (1989) (citations and footnote omitted). See also Ridgeway

v. Wh isman , 210 Ga. App. 169 (435 SE2d 624) (1993). Impor tan tly, negligent entrustm ent is not a form of vicarious liability; ra ther, it is an independent wrongful act that can combine with the negligence of the entrustee: [t]heliability

of the owner

in a negligent entrustm

ent action does not resu ltfrom

imputing the neglig ence of th e incom petent dri ver to th e owner[; ] rather “

negligent e ntrus tment of a motor vehicle to an incom petent driver is an independen t wrong ful ac t of th e vehi cle’s owner which is a co ncurrent, prox imate cause of i

njury when it combines with the negli gence of th e operator.” Ridgeway , 210 Ga. A

pp. at 170, quoting Ada

ms & A dams, Ga. Law of T orts, § 12-5 (1989) (citatio n omitt ed). Se e also Hook v. Harmon , 315 Ga. App. 278, 279 (727 SE2d 143) (2012) (“Liability

also requires proof

that the e ntrustor’ s negligenc e is a2 See gene rally Hook , 315 Ga. App. at 279 (“ [W] here the i njured pa rty is the entrustee, his own contributory negligence generally will bar him from recovery against the negligent entrustor .”) (c itation and footnote

omitt ed); Ridgeway , 210 Ga. App. at170 (entrustee’s contributory negligence, or an unnamed driver’s negligence, or both, am ounted to the

sole proxim

ate cause of the entr

ustee’ s injurie s; theref

ore the entrustor could not be liable to the entrustee’s parents for the entrustee’s injures). 6 concurring pr oximate ca use of the accident, along with any ne gligence by

the

en trustee arising fr

om inc ompet ency o r reckle ssness.”) (citatio n omitt ed). T hus , a party can b e liab le for negligent entrustment without an employ er-employ ee relations hip or within such a rel ationship w here the employee is acting outside of the scope of his employment. See, e.g., Roper , _ Ga. App. _ (2 ) (757 SE 2d 885) (negligent

entr ustme nt claim against em ployer allowed even though employ ee was acting outside of the scope of employment at the time of the accident). Simpl y put, Ove rhead Do or plainly has a duty

not to negligently en

trust others with its vehicle s, and a

violation of that duty can lead to accidents. The fact that an actio n by Pric kett again st Overhead Door might be ba rred by Prickett ’s own contributorynegligence or another legal doctrine does not aff ect this co nclusion. 2 It fol lo ws that if Overhead Door knew that Prickett was incom petent to drive yet entrusted a vehicle

to him despite tha

t knowledge , it could n ot be said that Overhead Door was wit hout fault –

under the o rdinary

and eve ryday

mea ning of that term as7

required b y Couch – for caus ing the acc ident, ev en if Ove rhead Do or could not be found liable to Prick ett. Overhead Door’s alleged negligent entrustm ent could be seen

as aconcurrent proximate cause of the accid ent even if Overhead Door coul d not be found liable di rectly to its emplo yee. Accordingly, Overh ead Do or c ould be considere d as bearing a percentage of “fault” for the accident that caused Prick ett’s injurie s under OC GA § 51-1 2-33. This conclusion is supported by Barnett v. Farmer , 308 Ga. App. 358, 362 (2) (707 SE2d 570) (2011) (physical precede nt only) , a suit w ith only one defen dant, in which Mr. a nd Mrs. F armer brought sui t against B arnett, and both plaintiffs and defendant claimed the other ran a red light. Id. Barnett requested that the court charge the jury on apportion

ment o f Mrs. F armer’s cla ims a gainst him

on the ground that Mr. Far mer, who was d

riving, w as partially at

fault for the acci dent and tha

t he there by contributed to his wife’s injuries. Id. T his Court concluded that the jury should have been instruct ed to appo rtion any awa rd of dam age s to Mrs. F armer accord ing to a determ ination of the percentage of fault of Barnett and co-plaintiff Mr. Farm er, if any, despite the fact

th at Mr. F armer would be protecte d from

liability in a suit by

Mrs. Farm er by the interspousal tort imm unity doc trine. I d. This C ourt reas oned,3 Furtherm ore, in Union Carbi

de , as a m atter of

Georgia law, the nonparty at issue (Georgi a Pacif

ic) owed no duty t o any na

med pa rty in the suit. Here, on the other hand, Ov erhead D oor owed a duty to the public, which nec essarily includes th e defendant , not to neg ligently entrust ve hicles to it s empl oyees .

8 “[I ]t woul d be contrary to the clear intent of the legislature to require Barnett to pay fo r the f

ull amo unt o f Shir ley’s dama ges for th e sa me collision simply because she w as a passenger in the car her husband was d riving

. . . . O ur holding in n o way requires Shirley

to file sui t against her husband, bu

t instead, preclude s h er fro m re covering f rom B arnett that portion of h er damages, if an y, that a trier of fact concludes resulted from the negligence of her

husband. Id. at 362 (2). This rea soning is per suasive. Here, even if P rickett ha s no claim against Overhead Door because of his own contributory negligence, Zaldivar

should not be liable to Pricke tt for tha

t portion of Prickett’s dama

ges that a trier

of fact concludes resulted f rom O verhead D oor’s c ontribution t o the cause of the ac cident. The case of Union Carbi de Corp. v . Field

s is dis tingui shable at least in part bec aus e it was decided before Couch and it d oes not emplo y Couch’s definition of “fault.” 3 See Union Carbi de v. F ields , 315 Ga. App. 554, 557 (1) (a) (726 SE2d 521) (2012) (tr ier of fact not authorized to apportion fault to nonparty that employed vict im’s father b ecause in Georgia , “a

n e m ployer owes no dut

y of c are to a t

hirdpar ty, non-em

ployee , who com

es into cont act with its em ploy e e’s asbestos-tainted9

work clothing at locations away from the workplac e”) (c itation and punctuation omitted), reverse d on separate grounds Georgia-P

acific v. Fields , 293 Ga. 499 (748 SE2d 407) (2013). For t he above reasons, I

would hold th at the tri al court e rred by dismis sin g Zaldivar’s assertion of nonparty fault against Overhead D oor.