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Georgia Apportionment Increase: Employer Negligence to be Added to Verdict Forms

Written by: Glenn E. Jones, Esq.

Georgia employers, especially those who hire and employ drivers, have an additional conduit of risk and scrutiny based on a new ruling by the Georgia Supreme Court. Georgia juries may find an employer negligent based on what is found in an employee’s driving history, training history, or criminal background.

The longstanding rule for negligence cases in Georgia is that a plaintiff may not recover damages if he or she is 50 percent or more at fault. O.C.G.A. §51-12-33(g). When the tortious conduct was done by an employed person in the course and scope of his or her business, plaintiffs would regularly bring claims for negligent hiring, supervision, training, entrustment and/or retention. Previously, an employer could defeat these claims by admitting that the employee was properly employed and acting as an agent of the business that the time. By admitting respondeat superior, the employer’s own negligence would not be considered by the jury for purposes of apportioning damages.

In the case of Quynn v. Hulsey, the Georgia Supreme Court fundamentally reversed this precedent. Holding that the prior rule contradicted clear statutory language, the Court ruled that negligent hiring, supervision, training, entrustment, and/or retention claims must be considered by juries in addition to any negligence of the employee. In plain terms, prior jury verdict forms included two lines for apportioning fault when an employer admitted respondeat superior – a line for the percentage of fault for the plaintiff, and a line for the fault of the defendant employee. A jury would decide the total amount of damages, and the court would reduce the award by the percentage of the plaintiff’s fault, if any. If plaintiff and defendant shared 50 percent of the fault, the court would enter a defense verdict.

The new rule includes a third line where a plaintiff claims negligent hiring, supervision, training, entrustment, and/or retention. Now plaintiffs will present evidence of employer behavior and the jury will decide percentages of fault among the plaintiff, the defendant employee, and the defendant employer. This decision will have broad implications throughout the business community in negligence cases. The immediate impact will be that plaintiffs will have an additional potential tortfeasor to survive the 50 percent rule discussed above, and juries may consider things like an employee’s prior driving record, training records, and discipline/criminal history. With this new ruling, if the parties shared fault equally, the jury would find the plaintiff 33.3 percent at fault, and 66.7 percent of the damages would be awarded to the plaintiff.