In a Georgia injury trial, the jury rarely decides only whether one defendant was negligent. Georgia law asks the jury to allocate fault, and that allocation can include the injured plaintiff and people or companies who are not even on trial. Two related doctrines shape how this works in front of a jury: comparative fault and the apportionment system that allows a defendant to point to an absent party, often called the empty chair defense.
Modified Comparative Fault
Georgia follows a modified comparative negligence system. A plaintiff’s own negligence does not automatically bar recovery, but it has two effects. First, any damages the plaintiff would otherwise recover are reduced in proportion to the plaintiff’s share of fault. Second, if the plaintiff’s share of fault reaches a threshold, recovery is barred entirely.
The threshold in Georgia is 50 percent. A plaintiff who is found 50 percent or more at fault recovers nothing. A plaintiff found less than 50 percent at fault recovers, but the award is reduced by that percentage. A plaintiff found 30 percent at fault, for example, recovers 70 percent of the damages the jury assigns. This is why Georgia’s rule is sometimes described as a 49 percent rule: a plaintiff can be up to 49 percent at fault and still recover something, but at 50 percent the recovery disappears.
The Apportionment Statute
The mechanics of allocating fault are set by O.C.G.A. 51-12-33, Georgia’s apportionment statute. It directs the trier of fact, in a case where fault is contested, to assign percentages of fault and to reduce or bar the plaintiff’s recovery accordingly.
The feature of the statute that produces the empty chair defense is its treatment of nonparties. The statute provides that, in assessing percentages of fault, the trier of fact considers the fault of all persons or entities who contributed to the alleged injury, regardless of whether that person or entity was, or could have been, named as a party to the lawsuit. A defendant can therefore ask the jury to assign a share of fault to someone who is not in the courtroom.
The statute has been the subject of significant legislative attention. After a 2021 Georgia Supreme Court decision read the prior version to limit nonparty apportionment when only a single defendant was sued, the General Assembly amended the statute in 2022 to make clear that apportionment of fault to nonparties is available in actions brought against one or more persons, meaning in single-defendant cases as well as multi-defendant cases. Because the law in this area has evolved, the version of the statute that governs a particular case depends on when the cause of action accrued.
The Empty Chair Defense in Practice
The empty chair defense is the strategy of arguing that an absent person or entity, the empty chair, bears responsibility for the plaintiff’s injury. The defendant who is present asks the jury to place a percentage of fault on the absent actor, which reduces the percentage, and therefore the damages, attributed to the defendant.
A common example arises in a multi-vehicle collision. A defendant who is sued may contend that another driver who was never sued, or who already settled, actually caused or contributed to the crash. The jury can be asked to assign that absent driver a share of fault.
Procedural Requirements: Notice
The apportionment statute does not let a defendant raise an empty chair argument by surprise at trial. The statute requires a defendant who intends to ask the jury to assign fault to a nonparty to give notice. That notice generally must be given a set time before trial, identifying the nonparty alleged to be wholly or partially at fault, so the plaintiff has an opportunity to investigate and respond. The notice requirement does not apply in the same way where a nonparty has settled with the plaintiff before trial. Because the timing and details of the notice requirement are governed by the specific text of the statute as it stands for the relevant case, the precise procedural steps are determined by that statutory language.
How the Jury Handles the Allocation
When comparative fault and nonparty fault are both at issue, the jury is typically given a verdict form that asks it to assign percentages of fault. The percentages assigned to the plaintiff, to each defendant, and to any nonparty must account for all the fault that contributed to the injury, and they total 100 percent.
The jury first determines total damages without regard to fault, then assigns the percentages. The plaintiff’s percentage triggers the comparative negligence reduction and the 50 percent bar. The defendant pays according to the share of fault the jury assigns to that defendant.
A key point about the empty chair is what the allocation to a nonparty does and does not accomplish. Assigning fault to a nonparty reduces the share borne by the defendant on trial. It does not create an enforceable money judgment against the absent nonparty, because that person is not a party to the case. The practical effect of a large nonparty allocation is that the plaintiff’s recovery from the present defendant is correspondingly smaller.
Strategic Tension Before the Jury
Comparative fault and the empty chair create a recognizable dynamic at trial. The defense often pursues two themes at once: that the plaintiff was partly responsible, pushing the plaintiff’s percentage toward the 50 percent bar, and that an absent actor was responsible, pushing fault into the empty chair and away from the defendant. The plaintiff, in turn, works to keep its own percentage low and to show that the defendant, not an absent party, was the real cause of the harm.
Because the defendant who raises an empty chair argument generally bears the burden of producing evidence that the nonparty was actually at fault, the empty chair is not a free argument. The jury must have an evidentiary basis to assign fault to the absent actor.
Conclusion
Before a Georgia jury, comparative fault and the empty chair defense work together through the apportionment statute, O.C.G.A. 51-12-33. The jury assigns percentages of fault to the plaintiff, the defendants, and any qualifying nonparties. The plaintiff’s percentage reduces the recovery and, at 50 percent or more, eliminates it. A defendant may direct fault toward an absent person or entity, but only with proper advance notice and supporting evidence, and an allocation to a nonparty reduces the present defendant’s share without creating a judgment against the absent actor. The result is a single allocation, totaling 100 percent, that determines what, if anything, the plaintiff recovers and from whom.
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.