GA Code § 51-12-33 (2021)
2021 Georgia Code|Title 51 - Torts|Chapter 12 - Damages|Article 2 - Joint Tort-Feasors|§ 51-12-33. Reduction and Apportionment of Award or Bar of Recovery According to Percentage of Fault of Parties and Nonparties

  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, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.   Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.   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, regardless of whether the person or entity was, or could have been, named as a party to the suit.     Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement 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 wholly or partially at fault.   The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.     Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.     Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.   Where fault is assessed against nonparties pursuant to this 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.     Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, 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.     (Code 1981, §51-12-33, enacted by Ga. L. 1987, p. 915, § 8; Ga. L. 2005, p. 1, § 12/SB 3.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2005, "or" was substituted for "and" near the beginning of subsection (g).   Editor's notes.   - Ga. L. 2005, p. 1, § 1/SB 3, not codified by the General Assembly, provides that: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."   Ga. L. 2005, p. 1, § 14/SB 3, not codified by the General Assembly, provides for severability.   Ga. L. 2005, p. 1, § 15(b)/SB 3, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply only with respect to causes of action arising on or after February 16, 2005, and any prior causes of action shall continue to be governed by prior law.   Law reviews.   - For article, "Products Liability Law in Georgia Including Recent Developments," see 43 Mercer L. Rev. 27 (1991). For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 221 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For survey article on evidence law, see 60 Mercer L. Rev. 135 (2008). For annual survey on trial practice and procedure, see 64 Mercer L. Rev. 305 (2012). For article, "Who Owes How Much? Developments in Apportionment and Joint and Several Liability Under O.C.G.A. § 51-12-33," see 64 Mercer L. Rev. 15 (2012). For article, "The Seat-Belt Defense in Georgia," see 65 Mercer L. Rev. 19 (2013). For annual survey on construction law, see 65 Mercer L. Rev. 67 (2013). For annual survey on trial practice and procedure, see 65 Mercer L. Rev. 277 (2013). For annual survey on construction law, see 66 Mercer L. Rev. 27 (2014). For annual survey on insurance law, see 66 Mercer L. Rev. 93 (2014). For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014). For annual survey of tort law, see 68 Mercer L. Rev. 279 (2016). For article, "Premises Liability and Apportionment Following Martin v. Six Flags Over Georgia II, L.P.," see 69 Mercer L. Rev. 1 (2017). For annual survey on construction law, see 69 Mercer L. Rev. 63 (2017). For annual survey on product liability, see 69 Mercer L. Rev. 231 (2017). For annual survey on trial practice and procedure, see 70 Mercer L. Rev. 253 (2018). For annual survey on business associations, see 71 Mercer L. Rev. 15 (2019). For annual survey on construction law, see 71 Mercer L. Rev. 57 (2019). For annual survey on trial practice and procedure, see 71 Mercer L. Rev. 305 (2019). For article, "2019 Georgia Corporation and Business Organization Case Law Developments," see 25 Ga. St. B.J. 30 (June 2020). For note, "The Effect (Or Noneffect) of the 2004 Amendments to O.C.G.A. §§ 51-12-31 and51-12-33 on Joint Liability in Georgia," see 44 Ga. L. Rev. 215 (2009). For note, "Publicly Funded Private Security: A Critical Examination of Georgia Law Pertaining to the Private Employment of Off-Duty Police Officers," see 51 Ga. L. Rev. 879 (2017). For comment, "Where Do We Go From Here? The Future of Caps on Noneconomic Medical Malpractice Damages in Georgia," see 28 Ga. St. U.L. Rev. 1341 (2012).   JUDICIAL DECISIONS   Constitutionality.    - Tenant lacked standing to challenge the constitutionality of the apportionment statute as the statute applied to non-parties. Johnson St. Props., LLC v. Clure, 302 Ga. 51, 805 S.E.2d 60 (2017).   Applicability.    - O.C.G.A. § 51-12-33 applies only to the plaintiff's negligence in concurrently causing the injury or damages by contributory negligence, assumption of risk, and comparative negligence; it does not apply to failure to mitigate damages or injury after the completion of the tort and injury or damages result. United States Fid. & Guar. Co. v. Paul Assocs., 230 Ga. App. 243, 496 S.E.2d 283 (1998).    Trial court erred by granting the parents of a businessman, shot and killed while a guest at a motel, partial summary judgment in the parents' wrongful death action and by holding that the apportionment of fault statute, O.C.G.A. § 51-12-33, did not apply because the statute applied since the actions of a criminal assailant were separate from the property owner and no respondent superior existed. Accor N. Am., Inc. v. Todd, 318 Ga. App. 317, 733 S.E.2d 846 (2012).   Apportionment applied to claims for purely pecuniary losses.    - O.C.G.A. § 51-12-33, Georgia's apportionment statute, applied to tort claims for damage to tangible and intangible property and therefore applied to purely pecuniary losses. However, § 51-12-33 did not abrogate Georgia's common-law rule imposing joint and several liability on tortfeasors who acted in concert; in such cases, fault was not divisible and could not be apportioned. FDIC v. Loudermilk, 305 Ga. 558, 826 S.E.2d 116 (2019).   Insurers who paid judgment could seek reimbursement from other insurers despite lack of apportionment.    - Insurers' claim that other insurers who had paid a judgment against both insureds for breach of the peace during a repossession under O.C.G.A. § 11-9-609 had no right of reimbursement because fault had not been apportioned under O.C.G.A. § 51-12-33 was rejected; the insurers had a right to recover contribution as subrogees. Renaissance Recovery Solutions, LLC v. Monroe Guar. Ins. Co., F. Supp. 2d (S.D. Ga. July 13, 2016).   Third-party claims not cognizable under apportionment statute.    - After a defendant moved for leave to file a third-party complaint, the good faith requirement of Fed. R. Civ. P. 16(b) was met, but leave was denied under Fed. R. Civ. P. 14(a) since the defendant's third-party claims did not appear cognizable under Georgia law in light of Georgia's apportionment statute, O.C.G.A. § 51-12-33. Ga. Power Co. v. Sure Flow Equip., Inc., F. Supp. 2d (N.D. Ga. July 22, 2014).    O.C.G.A. § 51-12-33(c) requires the trier of fact in cases to which the statute applies to consider the fault of all persons or entities who contributed to the alleged injury or damages, which includes not only the plaintiff itself and the defendants with liability to the plaintiff, but also every other tortfeasor whose commission of a tort as against the plaintiff was a proximate cause of the plaintiff's injury, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff. Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, Ga. App. , S.E.2d (Mar. 1, 2016).   Who makes determination of apportionment.    - The text of O.C.G.A. § 51-12-33 does not require a single trier of fact to make the determination of liability, damages sustained, and apportionment. Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 801 S.E.2d 24 (2017).   Fault of all persons or entitites to be considered.    - O.C.G.A. § 51-12-33(c) requires the trier of fact to consider the fault of all persons or entities who contributed to the alleged injury or damages, which includes not only the plaintiff personally and the defendants with liability to the plaintiff, but also every other tortfeasor whose commission of a tort as against the plaintiff was a proximate cause of the plaintiff's injury, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff. Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015).   Insufficient proof to support apportionment based on non-party fault defense.    - In a toxic-tort action, the trial court did not err in granting summary judgment to the decedent's wife as to the appellants' non-party fault defense that the decedent's treating physicians committed malpractice, which contributed to the decedent's injuries or damages because medical testimony from the appellants' expert was too vague to express the kind of reasonable degree of medical certainty or probability necessary to establish causation for a medical-malpractice claim. Pneumo Abex, LLC v. Long, 357 Ga. App. 17, 849 S.E.2d 746 (2020).   Apportionment of damages not ascertainable.    - In a wrongful death action, the trial court erred in imposing liability on a condominium association for the security company's share of fault as the general verdict did not distinguish the award and the jury may have imposed fault on the condominium association based strictly on a theory of nuisance, and the imposition of fault on the security company under common law, which negligence could be completely independent of, and not imputable to the condominium association. Camelot Club Condo. Assoc. v. Afari-Opoku, 340 Ga. App. 618, 798 S.E.2d 241 (2017).   Apportionment to nonparty.    - O.C.G.A. § 51-12-33 requires the trier of fact to consider the "fault" of a nonparty only when the nonparty is shown to have committed a tort against the plaintiff that was a proximate cause of the plaintiff's injury. Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015).    In the company's legal malpractice and breach of fiduciary duty suit against the firm, the trial court erred in striking the firm's apportionment notice, seeking to apportion fault among the company and multiple nonparties, because to the extent that the firm could prove that the nonparties identified in the apportionment notice breached a legal duty in tort that it owed the company, the breach of which was a proximate cause of the injury that the company sustained, the trier of fact could be permitted under O.C.G.A. § 51-12-33(c) to assign fault to the nonparties. Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, 336 Ga. App. 527, 785 S.E.2d 541 (2016).    In a medical malpractice action, the trial court erred by granting a new trial as to apportionment because by failing to give the mandatory notice required by O.C.G.A. § 51-12-33(b), the defendants waived the defendants' right to apportion damages on vicarious liability as to a non-party. Trabue v. Atlanta Women's Specialists, LLC, 349 Ga. App. 223, 825 S.E.2d 586 (2019), aff'd, 310 Ga. 331, 850 S.E.2d 748 (2020).    In a claim for wrongful death and other damages in which jurors allocated only 20 percent of the fault to the skilled nursing facility, the trial court did not err in allowing the jury to consider whether to apportion fault to non-parties at the trial and the plaintiffs were not entitled to a directed verdict on the fault allocation issue because the jury would have been authorized to find by clear and convincing evidence that three non-party medical providers acted with gross negligence as the facility's expert asserted that the breaches of care committed by the three non-parties were egregious, resulting in the provision of astonishingly poor care to the patient in the emergency room. Lowndes County Health Services, LLC v. Copeland, 352 Ga. App. 233, 834 S.E.2d 322 (2019).    In a medical malpractice case, a physician was not entitled to apportionment of damages based on the percentage of fault of a non-party doctor, the physician's co-employee, because the physician did not comply with O.C.G.A. § 51-12-33(d), which required that the physician give notice of fault of a non-party at least 120 days before trial. Atlanta Women's Specialists, LLC v. Trabue, 310 Ga. 331, 850 S.E.2d 748 (2020).   Full retrial not required, only retrial for apportionment.    - Trial court's error in apportionment did not require a full retrial, but rather required retrial only for the apportionment damages, as the assessment of fault among tortfeasors, in most if not all cases, would have no impact on the jury's finding of liability or on the total amount of damages to which the plaintiff was entitled. Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 801 S.E.2d 24 (2017).    Rule of joint and several liability among joint tortfeasors can be disregarded, under O.C.G.A. §§ 51-12-31 and51-12-33, with several separate judgments rendered in cases coming within the scope of these statutory provisions. Union Camp Corp. v. Helmy, 258 Ga. 263, 367 S.E.2d 796 (1988).   Interspousal tort immunity doctrine.    - Application of the apportionment of damages pursuant to O.C.G.A. § 51-12-33 did not violate the interspousal tort immunity doctrine, O.C.G.A. § 19-3-8, because the trial court's holding that the jury should have been instructed to apportion the award of damages to a wife according to the jury's determination of the percentage of fault of her husband and a driver, if any, in no way requires the wife to file suit against her husband, but instead, precluded the wife from recovering from the driver that portion of her damages, if any, that a trier of fact concluded resulted from the negligence of her husband. Barnett v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570 (2011).   Fault of tortfeasor considered despite meritorious defense.    - As the Georgia Supreme Court has explained in Zaldivar, the apportionment statute, O.C.G.A. § 51-12-33(c), permits consideration, generally speaking, of the fault of a tortfeasor, notwithstanding that the tortfeasor may have a meritorious affirmative defense or claim of immunity against any liability to the plaintiff; the Supreme Court does not conclude that immune employers should be treated differently than other immune tortfeasors. Walker v. Tensor Mach., Ltd., 298 Ga. 297, 779 S.E.2d 651 (2015).    Georgia law does recognize first-party negligent entrustment as a tort, even if liability usually will be barred by the doctrine of comparative negligence; thus, to the extent that Ridgeway v. Whisman, 210 Ga. App. 169 (435 S.E.2d 624) (1993) or any other case that relied on Ridgeway, for instance, Hood v. Harmon, 315 Ga. App. 278, 279 (727 S.E.2d 143) (2012), suggests otherwise, those cases are disapproved. Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015).   Notices of apportionment untimely.    - Trial court properly struck a security system monitoring company's notices of apportionment in a customer's negligence action because the notices were filed in an untimely manner; strict compliance with the statutory time requirements was warranted, and the trial court was well within the court's right to set the trial date when the court did. Monitronics Int'l, Inc. v. Veasley, 323 Ga. App. 126, 746 S.E.2d 793 (2013).   Multiple parties required for instruction.    - Trial court did not err in not instructing the jury on apportioning damages between defending parties as the patient's action in dismissing with prejudice a company doctor from the patient's medical malpractice suit meant such an instruction would have been inappropriate as the action was no longer against the multiple parties that statutory law required before such an instruction could be given. Schriever v. Maddox, 259 Ga. App. 558, 578 S.E.2d 210 (2003).    Trial court erred in ruling that damages could be apportioned against a third party as O.C.G.A. § 51-12-33(a) did not authorize a jury to apportion damages against a non-party. Fraker v. C.W. Matthews Contr. Co., 272 Ga. App. 807, 614 S.E.2d 94 (2005), aff'd, No. 06-11805, 2007 U.S. App. LEXIS 28793 (11th Cir. 2007).   Charge as to apportionment of burden of proof proper.    - In a personal injury case, the defendant's apportionment claim was an affirmative defense, thus, the defendant had the burden of showing by a preponderance of the evidence that the nonparty tractor-trailer driver was negligent and that the driver's negligence proximately caused all or some portion of damages to the plaintiff, thus, the trial court committed no error in charging the jury to that effect. Brown v. Tucker, 337 Ga. App. 704, 788 S.E.2d 810 (2016).   Failure to submit apportionment to jury.    - Trial court erred in denying the park's request to include some of the assailants on the verdict form for apportionment of fault. Six Flags Over Georgia II, L.P. v. Martin, 335 Ga. App. 350, 780 S.E.2d 796 (2015).   Correction of errors in apportionment.    - When correction of an apportionment error involves only the identification of tortfeasors and assessment of relative shares of fault among the tortfeasors, there is no sound reason to disturb the jury's findings on liability or its calculation of damages sustained by the plaintiff. Though there may be instances in which the particular circumstances of the case or the nature of the apportionment error militate otherwise, in the ordinary case, the issue of apportionment among tortfeasors will be sufficiently distinct from the issue of liability and calculation of damages that the correction of an error in apportionment will not require a full retrial. In fact, when the issue of apportionment is distinct from the issues of liability and damages sustained, our "law of the case" doctrine will in most instances preclude the re-litigation of these issues once the jury's verdict on them has been affirmed. Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 801 S.E.2d 24 (2017).   Reduction of damages award.    - The 2005 amendment to O.C.G.A. § 51-12-33(a), providing that a judge shall reduce the amount of damages otherwise awarded to a plaintiff in proportion to his or her percentage of fault, shows legislative approval of a procedure under which the trial court reduces the jury's damage award in proportion to the degree of fault the jury attributes to the plaintiff. Turner v. New Horizons Cmty. Serv. Bd., 287 Ga. App. 329, 651 S.E.2d 473 (2007).    Delivery service's claim that an employee of a security company who was injured while inspecting one of the delivery service's trucks, and who filed a negligence action against the delivery service was also partially negligent for the injuries that the employee suffered, lacked merit in the context of the service's action, seeking indemnification from the security company, as there were no allegations of negligence against anyone other than the delivery service and the driver such that claims of comparative and contributory negligence under O.C.G.A. § 51-12-33 were unavailing. UPS v. Colt Sec. Agency, Inc., 296 Ga. App. 815, 676 S.E.2d 22 (2009).    Because the malpractice action involved only one defendant, the law firm, and the jury found that the holding company was 8% responsible for the injuries it suffered, the trial court should have reduced the award of compensatory damages by 8% rather than 68%. Alston & Bird LLP v. Hatcher Management Holdings, LLC, 355 Ga. App. 525, 843 S.E.2d 613 (2020).   Apportionment not permitted when entity is not party to action.    - Trial court did not err in denying a motion for judgment notwithstanding the verdict after a jury awarded damages on an insurer's subrogation claim as there could be no apportionment of damages with a city, even if the city was deemed liable, because the city was not a party to the action pursuant to O.C.G.A. § 51-12-33. Universal Underwriters Group v. Southern Guar. Ins. Co., 297 Ga. App. 587, 677 S.E.2d 760 (2009).   Apportionment permitted when third party's fault at issue.    - Third party's plea was admissible under former O.C.G.A. § 24-3-35(2) (see now O.C.G.A. § 24-8-804) as a third-party admission because the third party's fault had properly been made an issue under O.C.G.A. § 51-12-33. Woods v. Allied Van Lines, Inc., 316 Ga. App. 548, 730 S.E.2d 35 (2012).    To the extent that the driver could prove that the truck driver's employer breached a legal duty in tort that it owed the truck driver, the breach of which is a proximate cause of the injury that the truck driver sustained, the trier of fact could be permitted under O.C.G.A. § 51-12-33(c) to assign "fault" to the employer. Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015).   Apportionment requirement applies even if plaintiff is not at fault.    - In applying O.C.G.A. § 51-12-33, the trier of fact must apportion the court's award of damages among the persons who are liable according to the percentage of fault of each person even if the plaintiff is not at fault for the injury or damages claimed. McReynolds v. Krebs, 290 Ga. 850, 725 S.E.2d 584 (2012).   Apportionment must be raised as issue before first day of trial.    - In a wrongful death action, the trial court did not err in excluding the issue of apportionment from the jury's consideration because the defendant failed to comply with the notice requirements of the apportionment statute, O.C.G.A. § 51-12-33(d)(1), and did not raise the issue of apportionment until the first day of trial. Freese II, Inc. v. Mitchell, 318 Ga. App. 662, 734 S.E.2d 491 (2012).   Cause of action for apportionment not created.    - Trial court did not err in dismissing the property owner's common-law indemnification and apportionment claims because the property owner's third-party complaint against the designers and builders was properly dismissed as the complaint sought payment from third-party defendants as joint tortfeasors and thus, common law indemnity principles did not apply, and O.C.G.A. § 51-12-33 did not create a cause of action for apportionment but abrogated such actions under common law. Dist. Owners Ass'n v. AMEC Envtl. & Infrastructure, Inc., 322 Ga. App. 713, 747 S.E.2d 10 (2013), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).   Apportionment in product liability action.    - In a product liability action, because O.C.G.A. § 51-12-33 was intended to displace the common law of apportionment, the trial court did not err in apportioning the plaintiff's damage award on the plaintiff's claim for strict product liability, and in reducing the award of the wife's loss of consortium claim as it was derivative of and arose out of the tort committed against the plaintiff. Suzuki Motor of America, Inc. v. Johns, 351 Ga. App. 186, 830 S.E.2d 549 (2019), cert. granted, No. S19C1478, 2020 Ga. LEXIS 36 (Ga. 2020), cert. denied, No. S19C1530, 2020 Ga. LEXIS 27 (Ga. 2020), aff'd, 310 Ga. 159, 850 S.E.2d 59 (2020).   Exception to apportionment requirement.    - O.C.G.A. § 51-12-33 required the apportionment of damages among multiple tortfeasors even if the plaintiff was not at fault. However, given that a vehicle manufacturer settled with the plaintiff before trial and that the other driver in the collision presented no evidence for apportionment, a trial court did not err by dismissing the driver's crossclaim for setoff and contribution. McReynolds v. Krebs, 307 Ga. App. 330, 705 S.E.2d 214 (2010), aff'd, 290 Ga. 850, 725 S.E.2d 584 (2012).    O.C.G.A. § 51-12-33 did not apply to a city's water customers claims that the city overcharged the customers for water and sewage service because the claims were not for injury to person or property. City of Atlanta v. Benator, 310 Ga. App. 597, 714 S.E.2d 109 (2011), overruled on other grounds, FDIC v. Loudermilk, 305 Ga. 558, 826 S.E.2d 116 (2019).    Injured person's father's employer bore no fault in an asbestos-related action for damages that could have been assessed to it as a nonparty under O.C.G.A. § 51-12-33 because it did not owe a duty of care to a third-party, non-employee who came into contact with its employee's asbestos-tainted work clothing at locations away from the workplace. Union Carbide Corp. v. Fields, 315 Ga. App. 554, 726 S.E.2d 521 (2012).    In a case in which an injured person alleged that the person was exposed to asbestos through the family's brake work on vehicles or parts manufactured by certain nonparties and by use of a joint compound product used in the construction of the person's family home, it was not error to grant summary judgment to the injured person on the defendant's nonparty defense under O.C.G.A. § 51-12-33 when the defendants failed to present evidence sufficient to create a triable issue of fact as to whether the nonparties contributed to the injuries or damages as was required to assess those entities' potential fault. Union Carbide Corp. v. Fields, 315 Ga. App. 554, 726 S.E.2d 521 (2012).   Apportioned damages not subject to any right of contribution.    - In a personal injury action, the trial court and the court of appeals correctly construed O.C.G.A. § 51-12-33 to bar a motorist's cross-claims against a manufacturer for contribution and setoff. O.C.G.A § 51-12-33(b) flatly stated that apportioned damages shall not be subject to any right of contribution. McReynolds v. Krebs, 290 Ga. 850, 725 S.E.2d 584 (2012).   Negligent hiring, retention, and training claims.   - After an employee collided with a vehicle while driving a tractor-trailer, the employer was not entitled to summary judgment on the plaintiffs' claims of negligent hiring, training, and retention because the apportionment statute removed the rationale for granting summary judgment on negligent hiring, retention, and training claims purely based on the employer's admission of respondeat superior. Little v. McClure, F. Supp. 2d (M.D. Ga. Aug. 29, 2014).    Burden is upon the defendant,  but whether the defendant meets that burden given the evidence at trial is an issue that should be left to the jury. Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, Ga. App. , S.E.2d (Mar. 1, 2016).   Percentage of fault to non-party employer.    - Court answered a certified question in the affirmative, namely, it held that O.C.G.A. § 51-12-33(c) allows the jury to assess a percentage of fault to the non-party employer of a plaintiff who sues a product manufacturer and seller for negligence in failing to warn about a product danger, even though the non-party employer had immunity under the Workers' Compensation Act, O.C.G.A. § 34-9-11. Walker v. Tensor Mach., Ltd., 298 Ga. 297, 779 S.E.2d 651 (2015).   Impleader properly denied.    - Third-party complaint was properly dismissed on the basis that no claim for indemnity or contribution had been stated and the trial court properly denied the motion to add a third-party defendant because only the defendant rendered a legal opinion on the status of title to property and was directly responsible to the client for the opinion and the attorney was in effect seeking impermissibly to tender a substitute defendant. Hines v. Holland, 334 Ga. App. 292, 779 S.E.2d 63 (2015).   Asbestos exposure cases.    - Sufficient evidence supported the verdict in favor of the plaintiff in an asbestos exposure case because the plaintiff worked at the defendant's plant for years, and the evidence was sufficient to show that asbestos-containing products were used, produced, or maintained at the plant in a manner which released airborne asbestos fibers, and that the plaintiff was at the plant in proximity to those asbestos fibers when those fibers were released. Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga. App. 82, 770 S.E.2d 334 (2015), overruled on other grounds, 2016 Ga. LEXIS 445 (Ga. 2016).   Gross negligence standard applied to non-party emergency care providers.    - In a medical malpractice action against an emergency room doctor, O.C.G.A. § 51-1-29.5(c)'s gross negligence standard applied not only to the physician but also applied with regard to apportioning fault to non-parties (radiologist and nurses) under O.C.G.A. § 51-12-33(c) when those non-parties also provided emergency care. Southwestern Emergency Physicians, P.C. v. Quinney, 347 Ga. App. 410, 819 S.E.2d 696 (2018).   Jury instructions.    - Trial court erred by entering judgment on the jury's first verdict in a property owner's action for trespass and nuisance because the trial court had the authority and duty to instruct the jury to reconsider the verdict once a substantial error in the charge was discovered even though the owner had not objected to the trial court's actions, and the charges and the verdict form created substantial uncertainty about the meaning of the jury's initial decision; the initial failure to charge on O.C.G.A. § 51-12-33(g) was harmful because the jury's initial decision showed an intent to reduce the owner's award by only 50 percent, not 100 percent, but once the jury was fully instructed, the jury confirmed that intent in the second verdict, and the trial court was required to enter judgment in accordance with that intent. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).    Trial court erred by declining to charge the jury pursuant to O.C.G.A. § 51-12-33 because the jury should have been instructed to apportion the award of damages to a wife according to the jury's determination of the percentage of fault of her husband and a driver, if any, and there was evidence from which the jury could have concluded that both the driver and the husband were negligent; the trier of fact is required to apportion an award of damages under O.C.G.A. § 51-12-33 even if the plaintiff bears no fault. Barnett v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570 (2011).    Jury instructions provided pursuant to O.C.G.A. § 51-12-33 were not error in a wrongful death action since the particular language used was not challenged, the evidence supported invocation of the instruction, and there was no showing that the particular allegations of the claim did not warrant use of that instruction. Pacheco v. Regal Cinemas, Inc., 311 Ga. App. 224, 715 S.E.2d 728 (2011).    Because any error in charging the jury about apportionment had no effect on the outcome of the trial and could not have harmed a mother, the court of appeals need not consider whether instructing the jury on apportionment actually was error; the jury returned a verdict for the owner of an apartment complex, and there was no occasion for the jury to apportion damages. Raines v. Maughan, 312 Ga. App. 303, 718 S.E.2d 135 (2011), cert. denied, No. S12C0436, 2012 Ga. LEXIS 270 (Ga. 2012).    Trial court erred in charging the jury with the pattern instruction on comparative negligence because the instruction was no longer an accurate statement of law since the statement did not require the jury to quantify the fault of the plaintiff as precisely as O.C.G.A. § 51-12-33(a), and the procedure established by the pattern charge left the parties to wonder whether the jury found comparative negligence at all and, if so, correctly reduced the damages to be awarded the plaintiff in proportion to the degree of his or her negligence; both the Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.141 and Underwood v. Atlanta & West Point R. R. Co., 105 Ga. App. at 340 (1962), the case on which the pattern charge is based, have been superseded by O.C.G.A. § 51-12-33(a), as amended in the Tort Reform Act of 2005. Specifically, the van driver was entitled to a correct charge on comparative negligence because a jury could properly conclude from the evidence that a car driver, who filed suit against the van driver, was driving too fast, that driving so fast was negligent, and that the negligence contributed to the collision. Clark v. Rush, 312 Ga. App. 333, 718 S.E.2d 555 (2011).    Trial court did not limit the jury's obligation to consider the fault of unnamed nonparties because a company provided notice that a nonparty was at fault for some damages to the owners' property, and pursuant to that notice, the trial court instructed the jury that it had to consider the liability of the nonparty when deliberating. Ingles Mkts., Inc. v. Kempler, 317 Ga. App. 190, 730 S.E.2d 444 (2012).    Trial court erred by granting summary judgment to the defendants in a wrongful death action upon concluding that the plaintiffs' decedent was 50 percent or more responsible for the decedent's own death because there was an issue of fact as to whether the decedent would have died but for the presence of the tractor-trailer illegally parked in the emergency lane. Reed v. Carolina Cas. Ins. Co., 327 Ga. App. 130, 755 S.E.2d 356 (2014).    Following a jury trial on the issue of unliquidated damages in an action involving, inter alia, breach of fiduciary duty and related business torts, the plaintiff was awarded $2.5 million jointly and severally against the defendants; however, because apportionment was mandated under O.C.G.A. § 51-12-33 as it did not omit from its purview either damages or the assessment of percentages of fault springing from a default judgment, and damages apportioned by the trier of fact as provided in that statute were the liability of each person against whom they were awarded, and were not a joint liability among the persons liable, the trial court erred in instructing the jury on joint and several liability, and the defendants were entitled to a new trial. I. A. Group, Ltd. Co. v. RMNANDCO, Inc., 336 Ga. App. 461, 784 S.E.2d 823 (2016).   In an FDIC suit alleging that former directors of a failed bank were negligent and grossly negligent in approving 10 risky loans, a district court properly refused to instruct the jury on apportionment because the evidence did not support an apportionment instruction as it was impossible to divide fault among the directors because the decision to approve a loan was a group decision that required the consent from all members of the directors' loan committee and this quorum-approval policy essentially allowed the committee members to act as agents for each other. FDIC v. Loudermilk, 930 F.3d 1280 (11th Cir. 2019).   Mitigation evidence relevant.    - In a property owner's action for trespass and nuisance, the trial court did not err in denying the owner's motion in limine to exclude evidence suggesting that the owner should have built or re-built drains on the property because, at a minimum, the evidence the owner sought to exclude was relevant to the claim of negligence in several ways, and any possible error admitting evidence of mitigation or decisions regarding the drains vis-a-vis the owner's claims of nuisance and trespass was self-induced. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).   Evidence of doctor's prior conduct not relevant.   - In a wrongful death action, the trial court did not abuse the court's discretion by refusing the plaintiff's request to have evidence of the doctor's medical condition and history admitted because the trial court found that the evidence was not relevant without evidence of such condition and history existing on and during treatment of the plaintiff's decedent.   Waiver of constitutional challenge.    - Constitutional challenges on appeal to O.C.G.A. § 51-12-33 were waived when there was no trial court ruling shown on the issue. Pacheco v. Regal Cinemas, Inc., 311 Ga. App. 224, 715 S.E.2d 728 (2011).   Special verdict.    - Tort Reform Act of 2005, O.C.G.A. § 51-12-33(a), does not explicitly state that the jury must return a special verdict identifying the percentage of fault attributable to the plaintiff, but that is implicit, given the explicit requirements that the jury determine the percentage of fault and that the judge reduce any damages award in proportion to the percentage determined by the jury; without a special verdict, the judge could not know the percentage by which the judge is to reduce the damages award. Clark v. Rush, 312 Ga. App. 333, 718 S.E.2d 555 (2011).    Cited in Pirkle v. Hawley, 199 Ga. App. 371, 405 S.E.2d 71 (1991); Mann v. Taser Int'l, Inc., 588 F.3d 1291 (11th Cir. 2009); Reid v. Morris, 309 Ga. 230, 845 S.E.2d 590 (2020).   RESEARCH REFERENCES   ALR.   - Products liability: seller's right to indemnity from manufacturer, 79 A.L.R.4th 278.   Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to Users of Asbestos and Tobacco Products, 50 A.L.R.7th 3.