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Zaldivar v. Prickett

Court of Appeals of Georgia

July 16, 2014

ZALDIVAR
v.
PRICKETT et al

Cert. applied for.

Apportionment of damages. Cherokee State Court. Before Judge Jordan.

Downey & Cleveland, Sean L. Hynes , J. Colby Jones , Andrew A. Curtright, for appellant.

Slappey & Sadd, James N. Sadd , Edward M. Wynn, for appellees.

BARNES, Presiding Judge. Ellington, P. J., Doyle, P. J., Miller, J., and Boggs, J., concur. Dillard, J., concurs in judgment only. Branch, J., dissents.

OPINION

Barnes, Presiding Judge.

This appeal addresses the question whether, pursuant to OCGA § 51-12-33 (c) of Georgia's apportionment statute, a defendant may ask a jury to determine that a nonparty plaintiff's employer shares a percentage of the fault for the plaintiff's injuries because the employer negligently entrusted the plaintiff

Page 167

with one of its vehicles. Granting partial summary judgment to the plaintiff, the trial court answered this question in the negative. Because under the facts of this case the actions of the plaintiff's employer did not " contribute" to the plaintiff's alleged injury or damages, OCGA § 51-12-33 (c) is not applicable, and we therefore affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 S.E.2d 564) (2003).

The record reflects that on October 9, 2009, Daniel Prickett and Imelda Zaldivar collided at an intersection controlled by a traffic light. Both Prickett and Zaldivar were injured, and Zaldivar was taken from the scene to a hospital in an ambulance. Prickett sued Zaldivar on September 13, 2011, seeking to recover for personal [328 Ga.App. 360] injuries,[1] and she was served on September 22, 2011. On October 21, 2011, Zaldivar filed an answer to Prickett's complaint, claiming as affirmative defenses that the complaint failed to state a claim for relief; process and service of process was insufficient; jurisdiction was improper; venue was improper; and the action was barred by the statute of limitation. Zaldivar did not file a counterclaim against Prickett, despite having been injured in the collision.

In discovery, Prickett claimed he was clearing the intersection by turning left after the light turned red; Zaldivar claimed that Prickett turned left in front of her as she entered the intersection on a yellow light. The evidence is undisputed that Prickett was driving a company car on his way to a sales call.

Zaldivar filed a " Notice of Fault of Non-Party" pursuant to OCGA § 51-12-33 (d) (1),[2] asserting that Prickett's employer, Overhead Door Company, was wholly or partially at fault by negligently entrusting the vehicle to Prickett despite having received three anonymous calls from people complaining about how Prickett had been driving. Based on this reasoning, Zaldivar requested that, in accordance with OCGA § 51-12-33 (c), the trier of fact be permitted to consider the fault of Overhead Door when assessing percentages of fault for the accident that caused Prickett's injuries.

Prickett moved for partial summary judgment on Zaldivar's affirmative defense of nonparty fault, which the trial court granted. The trial court held:

Overhead Door cannot be liable to Mr. Prickett for injuries he sustained that may have been caused by the negligence of [Zaldivar] or Mr. Prickett's own negligence, as Overhead Door was not in breach of any legal duty owed to Mr. Prickett, nor was it the proximate cause of his injuries under the facts of this case.

Accordingly, the trial court concluded that Zaldivar would not be permitted to have the jury consider the alleged fault of Overhead Door when assessing fault for the accident that caused ...


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