When a crash is caused by someone driving a vehicle owned by another person or business, two distinct theories of liability can reach the owner. One is vicarious liability, which holds the owner responsible for the driver’s conduct. The other is negligent entrustment, which holds the owner responsible for the owner’s own conduct in allowing an unfit driver to use the vehicle. A recurring question in Georgia is whether a plaintiff may pursue a negligent entrustment claim as a separate theory, even when the owner is also vicariously liable. This guide explains the distinction and the current state of Georgia law.
Vicarious liability compared with negligent entrustment
Vicarious liability and negligent entrustment are different in kind. Vicarious liability, including the doctrine of respondeat superior, holds one party responsible for another party’s negligence because of their relationship, such as employer and employee. It is a form of imputed liability: the owner or employer may have done nothing wrong itself, yet is held accountable for the driver’s negligence.
Negligent entrustment is a theory of direct liability. It is based on the owner’s own negligent act of permitting another person to operate the vehicle. Under Georgia law, liability for negligent entrustment is predicated on the owner’s negligent act of lending or entrusting a vehicle to a driver with actual knowledge that the driver is incompetent or habitually reckless. The wrong belongs to the owner, not merely to the driver.
Elements of a negligent entrustment claim
Georgia negligent entrustment claims generally require proof that the defendant owned or controlled the vehicle, that the driver was incompetent, unfit, or habitually reckless, and that the defendant had actual knowledge of that incompetence or recklessness. The actual knowledge requirement is significant. Georgia courts have framed negligent entrustment narrowly, requiring genuine awareness of the driver’s unfitness rather than mere negligence in failing to investigate. This makes negligent entrustment a distinct claim with its own elements, separate from a simple claim that the driver drove negligently.
The historical Respondeat Superior Rule
For many years, Georgia followed what was known as the Respondeat Superior Rule. Under that decisional rule, when an employer admitted that it was vicariously liable for an employee’s negligence, a plaintiff could not also pursue direct claims against the employer, such as negligent entrustment, negligent hiring, negligent retention, or negligent training. The reasoning was that, once vicarious liability was conceded, the direct claims would not increase the plaintiff’s recovery and would mainly introduce prejudicial evidence about the employer’s conduct. As long as the employer admitted vicarious responsibility, the direct claims were generally barred.
How Georgia law changed
That rule no longer applies in the way it once did. The Supreme Court of Georgia held that Georgia’s apportionment statute, O.C.G.A. 51-12-33, abrogated the Respondeat Superior Rule. The court reasoned that the apportionment statute requires the trier of fact to assign fault according to each party’s respective conduct, and that this statutory command is inconsistent with a rule that would dismiss direct claims simply because vicarious liability was admitted.
The practical effect is that an employer or owner can no longer automatically obtain dismissal of a negligent entrustment claim merely by conceding vicarious liability. A plaintiff may pursue the negligent entrustment claim as a separate theory so that the trier of fact can consider and apportion fault for the owner’s own independent negligence.
The distinction the apportionment statute draws
An important point accompanies this change. The Supreme Court of Georgia made clear that any fault apportioned to the employer or owner must be based on that party’s own independent negligence, not on vicarious liability. Vicarious liability is, by definition, derivative of the driver’s conduct, so it is not a separate percentage of fault. Negligent entrustment, by contrast, reflects the owner’s distinct wrongdoing, and that wrongdoing can be assigned its own share of fault under O.C.G.A. 51-12-33.
This means a negligent entrustment claim and a vicarious liability claim can coexist in the same case, but they perform different functions. The vicarious liability claim makes the owner answerable for the driver’s negligence. The negligent entrustment claim allows the owner’s own negligence to be evaluated and apportioned as a separate contribution to the harm.
Related direct-liability theories
Negligent entrustment is one of several direct-liability theories that may be brought against an owner or employer alongside vicarious liability. Others include negligent hiring, negligent retention, negligent supervision, and negligent training. Each focuses on a different aspect of the owner’s or employer’s own conduct. Following the change in Georgia law, these direct claims are likewise not automatically barred by an admission of vicarious liability, although each must still be supported by sufficient evidence to go forward.
Summary
In Georgia, a plaintiff can pursue a negligent entrustment claim against a vehicle owner separately from a vicarious liability claim. The two theories are distinct: vicarious liability imputes the driver’s negligence to the owner, while negligent entrustment is based on the owner’s own negligent act of allowing an unfit driver to use the vehicle, with actual knowledge of that unfitness. Georgia formerly barred such direct claims once vicarious liability was admitted, but the Supreme Court of Georgia held that the apportionment statute, O.C.G.A. 51-12-33, abrogated that rule. As a result, the owner’s independent negligence can be considered and apportioned as a separate share of fault, distinct from any liability imputed through the driver’s conduct.
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.