Georgia’s Apportionment Statute, O.C.G.A. § 51-12-33: Nonparty Fault

Georgia’s apportionment statute, O.C.G.A. § 51-12-33, requires the judge or jury in a civil injury case to assign a specific percentage of fault to every person who contributed to the harm, then limits each defendant’s financial responsibility to that percentage alone. Enacted in the Tort Reform Act of 2005, the law replaced the older rule that let a plaintiff collect the entire judgment from any one defendant. It reshaped how personal injury and property damage cases are tried, settled, and valued in Georgia.¹

How Fault Gets Divided

The statute applies to any lawsuit for injury to a person or property against one or more defendants. If the plaintiff shares responsibility, the fact-finder first determines the plaintiff’s percentage of fault and reduces the total damages by that amount. What remains is then split among the defendants according to each one’s share of fault.¹

A quick example. A jury awards $200,000 in total damages and finds the plaintiff 10 percent at fault, Defendant A 60 percent at fault, and Defendant B 30 percent at fault. The plaintiff’s award drops 10 percent to $180,000. Defendant A owes $120,000 (60 percent of $200,000). Defendant B owes $60,000 (30 percent of $200,000). Each defendant pays only their own share, and no defendant can be forced to cover another’s portion.

The 50 Percent Bar

Georgia follows modified comparative negligence with a hard cutoff. If you are 50 percent or more responsible for your own injury, you recover nothing. Subsection (g) of the statute makes that absolute and overrides every other provision in the law.¹

Below that line, recovery shrinks in direct proportion to the plaintiff’s share of fault. A plaintiff found 30 percent at fault on a $100,000 verdict takes home $70,000. At 49 percent, the plaintiff still collects, but only 51 percent of the total. At 50 percent, the door closes. That single percentage point between 49 and 50 is often the most contested question at trial, and it gives defendants a strong reason to push the plaintiff’s fault as high as the evidence will allow.

No More Joint Liability

Before 2005, Georgia followed joint and several liability: when two or more defendants caused a single injury, the plaintiff could collect the whole judgment from whichever defendant had money. If one was broke, the others made up the difference. Section 51-12-33 ended that. Each defendant now pays only the percentage assigned by the jury, and the statute expressly removes any right of contribution between defendants.¹

The financial risk of an uncollectible defendant moved from the co-defendants to the plaintiff. If a jury assigns 40 percent of fault to a defendant with no money and no insurance, that 40 percent effectively vanishes. The plaintiff cannot pick it up from anyone else. This shows up often with uninsured drivers, bankrupt businesses, and criminal actors who will never satisfy a civil judgment. A strong liability case against a defendant who cannot pay is worth far less than it once was.

Fault Assigned to People Who Aren’t Sued

One of the statute’s most consequential features is that the jury considers the fault of everyone who contributed to the injury, including people and entities who are not parties to the lawsuit. Under subsection (c), fault is allocated among all contributors regardless of whether they were named or could have been named.¹

Nonparty fault enters a case two ways. First, if the plaintiff already settled with someone before trial, that person’s fault is considered automatically. Second, a defendant may designate a nonparty as partially at fault by filing a pleading at least 120 days before trial. That pleading must identify the nonparty by name and last known address and briefly explain the basis for the designation.¹

The math is hard on plaintiffs. Every percentage point the jury assigns to a nonparty is a point subtracted from the named defendants’ collective share, and the plaintiff has no judgment against the nonparty to collect that difference. Subsection (f) confirms that a nonparty fault finding cannot be used to hold the nonparty liable in any action and cannot be introduced as evidence against the nonparty later.¹

The 120-day deadline is enforced strictly. A defendant who misses it loses the ability to point at an absent party, which changes the dynamics of trial and settlement.

What Zaldivar Requires Before Nonparty Fault Counts

The Georgia Supreme Court set an important limit in Zaldivar v. Prickett, 297 Ga. 589 (2015). A nonparty’s fault enters the analysis only when that nonparty committed a tort against the plaintiff that was a proximate cause of the injury. The nonparty must have breached a legal duty owed to the plaintiff; mere involvement in the events is not enough.²

The nonparty does not need to be someone the plaintiff could actually sue and win against. Immunity, an expired statute of limitations, or other bars to actual liability do not prevent apportionment; the question is whether the nonparty acted as a tortfeasor toward the plaintiff.²

When Immune Parties Still Absorb Fault

Walker v. Tensor Machinery, Ltd., 298 Ga. 297 (2015), pushed that principle into a common scenario. The plaintiff was hurt at work by an allegedly defective product. His employer, immune from a direct suit under the Workers’ Compensation Act, had also contributed to the injury. The court held that the jury could assess a percentage of fault against the immune employer. The employer could not be sued, but its share of fault still reduced the product manufacturer’s liability.

For an injured worker, that combination is difficult. The manufacturer can designate the employer as a nonparty, the jury can assign a substantial percentage to the employer, and the worker has no way to recover that share outside the workers’ compensation system.

What This Means If You’re the Plaintiff

Apportionment forces careful thinking about who to sue and when to settle. Because joint liability is gone, a cheap early settlement with one defendant cannot be made up from the others; they pay only their own apportioned shares, and the settled defendant’s fault still enters the jury’s calculation.

Nonparty designations matter just as much. If a defendant plans to blame an absent party, you may want to add that person as a defendant, converting them from a nonparty (whose fault reduces your recovery with nothing collectible) into a named defendant (whose fault produces an enforceable judgment). Whether that move is worth it depends on the nonparty’s assets and insurance.

The 50 percent bar adds pressure of its own. Any meaningful share of your own fault carries the real risk that a jury will push you to the threshold and end the case, which is often what drives settlement in cases where the plaintiff’s conduct is hard to defend.

What This Means If You’re a Defendant

Defendants gain considerable ground under the statute. Designating nonparties can shrink the named defendants’ collective share without the absent parties being in the courtroom, and each defendant pays only their own percentage rather than backstopping a co-defendant who cannot pay.

The loss of contribution rights cuts the other way, too. A defendant who thinks a co-defendant deserved more of the blame cannot seek reimbursement after trial; the jury’s allocation is final. In multi-defendant cases, that often means defendants have interests that conflict directly, since each one’s best argument is that another defendant was more at fault.¹

Apportionment does not strip away other defenses. Subsection (e) preserves existing immunities and protections, so sovereign immunity, workers’ compensation exclusivity, and similar shields remain available to defendants who have them.¹

Federal Court Cases

Filing in federal court does not change the rules. When a Georgia personal injury case ends up in federal court through diversity jurisdiction, the Erie doctrine requires the federal court to apply Georgia’s substantive law, and fault allocation is substantive because it determines who pays and how much. A defendant does not escape apportionment by being sued in federal court, and a plaintiff does not regain joint liability by filing there. Procedural details of a nonparty designation may look slightly different under the Federal Rules of Civil Procedure, but the substantive right to apportion fault to nonparties carries over.