Apportionment to nonparties generally concerns defendants alleging that certain nonparties are also at fault for the plaintiffs harm. A defendant's successful allocation of fault to a nonparty results in the defendant shedding a portion of their liability toward the plaintiff. If joint and several liability has been abolished, then this means that the plaintiff will collect less damages from the named defendant. This Note addresses how current practice in Georgia allows the defendant to do this with very little effort. Specifically, this Note takes issue with a recent Georgia Court of Appeals decision, Double View Ventures, LLC v. Polite, 757 S.E.2d 172, 178 (Ga. Ct. App. 2014). That decision ignores precedent and does not adhere strictly to the language of Georgia's apportionment statute. The regime set by this opinion threatens a plaintiff's right to a fair trial. The opinion allows defendants to apportion fault to a nonparty without precisely identifying that party and without presenting evidence on each element of a cause of action. As a result, defendants are allowed to engage in gamesmanship that makes recovery an uphill battle for injured plaintiffs. The Georgia Supreme Court can still correct this appeals court error. All that need be done is requiring that defendants identify the nonparty to the best of their ability under the circumstances and present sufficient evidence to find that nonparty liable to the plaintiff. After this is done, the plaintiff rightly has the burden to show how this nonparty was not at fault. Fairness is the aim of the Georgia apportionment statute, and this Note proposes solutions to bring trials closer to that objective.
Newman, Michael K.
"The Elephant Not in the Room: Apportionment to Nonparties in Georgia,"
Georgia Law Review: Vol. 50:
2, Article 10.
Available at: https://digitalcommons.law.uga.edu/glr/vol50/iss2/10