The Georgia Court of Appeals has explicitly held that fault cannot be apportioned to non-parties in a case in which the only theory against one of two named defendants is vicarious liability. Plaintiff sued a dentist and their practice for negligence related to dental implants. The only theory against the practice was vicarious liability/respondeat superior for the acts or omissions of the dentist. The dentist and the practice gave notice of non-parties at fault under the pre-2022 version of Section 51-12-33, seeking to apportion damages. The defendants argued that because there were two named defendants, they could apportion fault to the non-parties. The trial court agreed.

The Court of Appeals reversed, holding that under the version of the apportionment statute before it was amended, fault could only be apportioned to a non-party if fault was also divisible between the two named defendants. In this case, since the only theory of liability against the second named defendant was derivative liability for the first named defendant, fault would not be divisible. Building on prior cases in which it was held that an employer and employee are treated as a “single tortfeasor” for purposes of apportionment, the Court concluded there is no “legal means of dividing fault among” the practice group and the dentist and therefore the defendants could not apportion fault to the non-parties.

Take-Home: This decision pretty much affirmed the obvious, but should have decreasing application in the future because of the change to the apportionment statute to permit fault to be apportioned to non-parties when there is only one defendant.

The case is Eliezer v. Mosley, ___ S.E.2d __, 2023 WL 5213798 (Ga.Ct.App. Aug. 15, 2023).