Apportionment is the process by which a Georgia court or jury divides responsibility for an injury among the people and entities that contributed to it. Rather than holding a single defendant responsible for the entire harm, the law allows damages to be allocated according to each party’s share of fault. This guide explains how apportionment works under Georgia law, how the governing statute has changed in recent years, and how apportionment interacts with comparative negligence.
The Governing Statute
Apportionment of damages in Georgia is controlled by O.C.G.A. § 51-12-33. The statute directs that when an action is brought against one or more persons for injury to person or property, the trier of fact, in determining the total amount of damages to be awarded, apportions the award among the persons who are liable according to each person’s percentage of fault.
The statute changed the older common law approach, under which defendants could be held jointly and severally liable. Under the apportionment framework, a defendant is generally responsible only for the portion of damages that corresponds to that defendant’s own share of fault, rather than for the full amount of the plaintiff’s loss.
Apportioning Fault to Nonparties
A distinctive feature of Georgia’s statute is that fault can be assigned not only to the named defendants but also to people who are not parties to the lawsuit. A nonparty is someone the evidence suggests contributed to the injury but who was not sued, perhaps because of immunity, settlement, an unknown identity, or a strategic choice by the plaintiff.
When a jury assigns a percentage of fault to a nonparty, that percentage is not collected from anyone in the lawsuit. It simply reduces the share borne by the named defendants. A defendant who wishes to point to a nonparty must ordinarily give notice within the time the statute and the rules of court allow, so the issue can be litigated fairly.
The Single-Defendant Question and Recent Changes
The treatment of nonparty fault in cases with only one named defendant has shifted in recent years, and the history is worth understanding.
In 2021, the Georgia Supreme Court decided Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 312 Ga. 350, 862 S.E.2d 295 (2021). The court examined the structure of O.C.G.A. § 51-12-33 and concluded that the subsection allowing reduction of damages based on nonparty fault applied only when an action was brought against more than one defendant. Under that ruling, a sole defendant could not reduce its damages by pointing to a nonparty’s fault.
The Georgia General Assembly responded the following year. It amended O.C.G.A. § 51-12-33, and the change was signed into law on May 13, 2022, taking effect immediately. The amendment was designed to allow apportionment of fault to nonparties even in cases with a single named defendant, restoring the broader application that had existed before the Alston & Bird decision.
The practical result is that, under the current statute, a jury may consider and assign fault to nonparties whether the case involves one defendant or several.
How Apportionment Interacts With Comparative Negligence
Georgia follows a modified comparative negligence rule. A plaintiff’s own fault is part of the apportionment analysis. The trier of fact assigns a percentage of fault to the plaintiff along with the percentages assigned to defendants and nonparties.
Two consequences follow. First, a plaintiff’s damage award is reduced by that plaintiff’s own percentage of fault. Second, a plaintiff who is found to be 50 percent or more at fault recovers nothing. This 50 percent bar is a defining feature of the Georgia system.
Apportionment and comparative negligence therefore work together. Apportionment divides responsibility among everyone involved, and the comparative negligence rule determines how the plaintiff’s own share affects, and potentially eliminates, the recovery.
The Effect on Joint Liability
Because each liable party is generally responsible only for its own percentage of fault, the apportionment statute substantially limits joint and several liability for most negligence claims. If one defendant is assigned 30 percent of the fault and another is assigned 70 percent, each is ordinarily responsible only for its own share. A plaintiff cannot collect the entire judgment from a single defendant simply because that defendant has the ability to pay.
This allocation is determined by the trier of fact, which may be a jury or, in a bench trial, the judge. The percentages must add up to 100 percent across the plaintiff, the defendants, and any nonparties found to share fault.
Damages Subject to Apportionment
Apportionment applies to the damages a plaintiff seeks for the injury. The trier of fact first determines the total amount of damages and then allocates that amount according to the assigned percentages of fault. The framework applies to compensatory damages in negligence actions. Certain categories of conduct and certain types of claims may be treated differently, and the precise application can depend on the nature of the claim and the facts presented.
Summary
Apportionment under O.C.G.A. § 51-12-33 divides responsibility for an injury among everyone who contributed to it, including the plaintiff and nonparties. The Georgia Supreme Court’s 2021 Alston & Bird decision held that nonparty fault could not be apportioned in single-defendant cases, and the General Assembly amended the statute in 2022 to allow nonparty apportionment regardless of the number of defendants. Apportionment works alongside Georgia’s modified comparative negligence rule, under which a plaintiff’s award is reduced by that plaintiff’s share of fault and is barred entirely if the plaintiff is 50 percent or more at fault.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.