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Walker v. Tensor Machinery Ltd.

Under the apportionment statute, the jury could assess a percentage of fault to the non-party employer of the plaintiff who sued a product manufacturer and seller for failure to warn after the plaintiff was injured on the job, even though the non-party employer had immunity under O.C.G.A. § 34-9-11, the Workers' Compensation Act.

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Just a few months ago, we held in Zaldivar v. Prickett, 297 Ga. 589 774 SE2d 688 2015, that OCGA § 51-12-33 c — which directs the trier of fact in certain cases to consider the fault of all persons or entities who contributed to the alleged injury or damages — refers to the fault of all persons or entities who have breached a legal duty in tort that is owed with respect to the plaintiff, the breach of which is a proximate cause of the injury sustained by the plaintiff . . . , regardless of whether such tortfeasor would have actual liability in tort to the plaintiff. Zaldivar, 297 at 600 1 footnote omitted. The apportionment statute permits consideration, generally speaking, of the ‘fault’ of a tortfeasor, notwithstanding that he may have a meritorious affirmative defense or claim of immunity against any liability to the plaintiff. Id. at 598 1 footnote omitted. Before we issued our decision in Zaldivar, the United States District Court for the Northern District of Georgia certified the following question to us:

Does OCGA § 51-12-33 c allow the jury to assess a percentage of fault to the non-party employer of a plaintiff who sues a product manufacturer and seller for negligence in failing to warn about a product danger, even though the non-party employer has immunity under OCGA § 34-9-11

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