Woods v

Allied Van Lines, 1005 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). Exception to apportionment requirement. — O.C.G.A. § 51-12-33 required the apportionment of damages among multiple tortfeasors even if the 51-12-33 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). 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 1006 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, No. (MTT), 2014 U.S. Dist. LEXIS 120681 (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, No. A15A1677, 2016 Ga. App. LEXIS 103 (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.