Apportioning fault to non-parties under Georgia law (the Zaldivar rule)

A Georgia jury can assign fault to someone who is not in the lawsuit, but only if that person is shown to have committed a tort against the plaintiff that was a proximate cause of the injury. That is the rule from Zaldivar v. Prickett, 297 Ga. 589 (2015). The share assigned to a non-party is not collected from anyone, so it comes out of the plaintiff’s recovery. Later decisions extended the rule to some persons who could not have been sued at all, such as an immune employer.

The rule, and where it came from

Section 51-12-33(c) says the factfinder “shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit”.

Zaldivar arose from a 2009 collision. The plaintiff, Prickett, was driving a truck supplied by his employer, Overhead Door. The defendant wanted fault assigned to the employer for negligent entrustment. The Court read “fault” to mean that the non-party has “committed a tort against the plaintiff that was a proximate cause of his injury”, and it disapproved earlier authority suggesting negligent entrustment never can be a proximate cause of an injury to the person entrusted.

Decision	Who the non-party was	Holding
Couch v. Red Roof Inns, 291 Ga. 359 (2012)	A criminal assailant	A jury may apportion between a property owner and the assailant
Zaldivar v. Prickett, 297 Ga. 589 (2015)	The plaintiff's employer	Fault means a tort against the plaintiff that proximately caused the harm
Walker v. Tensor Machinery, 298 Ga. 297 (2015)	An employer immune under workers' compensation	Immunity does not prevent a jury from assessing a percentage
Alston & Bird v. Hatcher, 312 Ga. 350 (2021)	Non-parties, with one named defendant	Former (b) did not call for apportionment to them in a single-defendant case

After Hatcher, the General Assembly changed “more than one person” to “one or more persons”, by HB 961, for cases filed after May 13, 2022. So the filing date matters for a single-defendant case.

The notice

Under § 51-12-33(d)(1), a non-party’s fault “shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial”. Under (d)(2), the notice is a pleading that designates the non-party, states the name and last known address “or the best identification of the nonparty which is possible under the circumstances”, and gives “a brief statement of the basis for believing the nonparty to be at fault”.

Three points follow.

• A settled person does not need the notice route.
• A person who cannot be named exactly can still be identified as best as possible.
• A notice is not evidence. The defendant still has to show the tort, duty, breach, and causation.

How the arithmetic hurts

Under (f), an assessment against a non-party is used only to determine the named parties’ percentages, and it creates no liability for that non-party and is not evidence of liability elsewhere.

For example, imagine $200,000 in damages, with the plaintiff at 10 percent, the defendant at 40 percent, and a non-party at 50 percent.

Item	Calculation	Amount
Defendant's share	$200,000 × 40%	$80,000
Non-party's share, uncollected	$200,000 × 50%	$100,000
Plaintiff's share	$200,000 × 10%	$20,000
Plaintiff receives		$80,000

A version of this example that multiplies $180,000 by 40 percent reaches $72,000, and it charges the plaintiff’s share twice. In McReynolds v. Krebs, the Court said damages are apportioned “according to their percentages of fault, regardless of whether the total amount of damages was first reduced”. A particular verdict form may frame it differently, so check how percentages were asked.

How defendants use it

• Another driver who left the scene. The defendant has to give the best identification possible and show that driver’s negligence.
• The plaintiff’s employer. As in Zaldivar and Walker. See workers’ compensation third-party claims.
• A road or lot owner. A defendant may blame the condition, and a limit on suing the owner may not stop that. Walker’s reasoning on immunity should be considered.
• A vehicle or part maker. A manufacturer can be noticed even where the plaintiff never sued it.
• A treating provider. A defendant may try this for later medical care, but it has to show a tort and causation.

How a plaintiff responds

Test the notice. Is it timely, does it identify the person, and does it state a basis?

Test the proof. A motion for partial summary judgment can target a non-party with no evidence of a tort, because no fault should be assigned without it. A jury question is not automatic.

Add the person as a defendant. If the claim has merit and time remains, a plaintiff may sue. This is limited by the deadline, and the 120-day notice may come after the two-year date has passed. So identify possible non-parties at the start, before the limitation period ends.

Weigh settlement. Settling with a person brings that person’s fault in under (d)(1). McReynolds shows a defendant cannot simply claim a set-off, and that it has to develop evidence of fault. A settlement figure should be weighed against the percentage a jury might assign.

Special rule for negligent security

For a negligent security cause of action arising on or after April 21, 2025, § 51-3-56 goes further: the factfinder must apportion to a third person whose wrongful conduct was a cause, and a verdict assigning too little can be set aside. See premises liability vs negligence.

Early questions for a plaintiff

1. Who else could a defendant blame?
2. Can that person be sued, and is there time to do it?
3. Is there insurance behind that person?
4. If that person is added, what does the case cost, and what proof does it require?

Sources

• Official Code of Georgia Annotated, November 2022 public release: § 51-12-33
• Zaldivar v. Prickett, 297 Ga. 589
• Couch v. Red Roof Inns, 291 Ga. 359
• Walker v. Tensor Machinery, 298 Ga. 297
• McReynolds v. Krebs, 290 Ga. 850
• Alston & Bird v. Hatcher, 312 Ga. 350 (2021)
• Senate Bill 68, as passed (2025): Section 6, enacting § 51-3-56

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.