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Georgia tort reform inadvertently puts brakes on a common defense tactic

As a trucking trial lawyer in Georgia, I often encounter defendants seeking to exclude evidence of corporate misconduct by just admitting that that they are responsible for the driver. Rather than letting into evidence the whole story of the corporation’s systemic disregard for safety for years, they try to focus on a couple of second on the road and then engage in subtle character assassination against the person who is injured or killed.

For a long time that worked. But now, as an illustration of the law of unintended consequences, tort reform may bring an end to that tactic.

The General Assembly of Georgia in 2005 passed a tort reform bill that includes O.C.G.A. ยง 51-12-33, as follows:

(b) 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 other states that similarly require allocation of fault between defendants, courts have held that the jury may be required to allocate percentages of fault between an employee driver and his employer against whom separate claims similar to negligent training, entrustment, hiring and supervision are made.

In Tennessee, “negligent entrustment does not create vicarious liability and the jury must allocate fault between the defendants.” Ali v. Fisher, 145 S.W.3d 557, 564 (Tenn., 2004).

In Kansas, “fault in a negligent entrustment case must be apportioned between the entrustor and the entrustee.” McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982).

In Texas, evidence that a driver trainer had only a weekend training course and never failed a trainee, and released a truck driver to drive solo before the terminal manager approved him to drive solo was sufficient to constitute a jury question on a claim of negligent training. Builders Transport v. Grice-Smith, 167 S.W.3d 1 (Tex. App. – Waco, 2005)

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). He served as chair of the Southeastern Motor Carrier Litigation Institute, is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is a frequent national seminar speaker for the Interstate Trucking Litigation Group of the American Association for Justice. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he was a faculty member for ten years at the Emory University Law School Trial Techniques Program. Currently he is Secretary of the 40,000 member State Bar of Georgia.