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Publication Date

2016

Abstract

In Zaldivar v. Prickett, Prickett (plaintiff)was working on behalf of his employer (Overhead Door) when he collided with Zaldivar (defendant). Zaldivar filed a "Notice of Fault of Nonparty" under Georgia's apportionment statute; this had to effect of requiring a jury to consider the fault of Overhead Door, which had recently received three anonymous phone calls complaining about Prickett's driving. The Georgia Supreme Court held that Georgia's Apportionment statute required that fault be assigned to Overhead Door, despite Prickett's inability to recover from Overhead Door. In this Note, I vary the facts of Zaldivar: Zaldivar becomes Klutzy Kellie; Prickett becomes Prudent Peter; Overhead Door becomes Dan's Doors; and I add the fact that Klutzy Kellie was working on behalf of her employer, Tom's Transportation, when the accident occurred. I assume that Klutzy Kellie recently received DUIs, that Prudent Peter sued Tom's Transportation for negligent entrustment (but did not allege punitive damages), and that Tom's Transportation admitted respondeat superior. Under Georgia's old case law, Tom's Transportation would be entitled to summary judgment on the negligent entrustment claim against it since it admitted respondeat superior and since no punitive damages were asserted. Dan's Doors, however, would not have the opportunity to avoid fault being apportioned to it because the "Notice of Fault of Nonparty" is not a negligent entrustment claim. I argue that Zaldivar overturns the latter inequitable result by removing employers' entitlement to summary judgment on direct negligence claims against them when they admit respondeat superior.

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