Representing individuals and families in cases of personal injury and wrongful death in Georgia, we deal with complex rules that the legislature tried to make more difficult in tort reform legislation in 2005.  However, in that hastily assembled legislation, the "law of unintended consequences" was at work.

When the Georgia legislature passed that omnibus tort reform bill almost four years ago, one of the provisions was to require juries to apportion fault between all parties and non-parties — even if they cannot be held liable — at whom the defendant points an accusing finger.

In Indiana last week, a jury following instructions under an apparently similar law awarded $48 million to a man rendered paraplegic in a steel mill accident, and refused to assign any percentage of fault to several non-parties whom the defendant corporation had tried to blame.

Anthony Arciniega, 42, was rendered paraplegic on November 20, 2004, when the refractory suddenly broke loose from the ladder, causing him to lose his grip and fall 17 feet. The jury found Minteq International, Inc. negligent for overspraying its refractory onto a stationary ladder in a Burns Harbor steel mill. Despite the injury, however, Mr. Arciniega returned to work at the steel mill in a wheelchair within six months. The jury also decided that Mr. Arciniega was zero percent at fault for the accident.  In addition to blaming the injured worker, Minteq’s lawyers tried to lay blame on other contractors in the steel mill and on International Steel Group. The jury flatly rejected both claims.

The apportionment of fault statute that the General Assembly of Georgia  passed in 2005 is O.C.G.A. § 51-12-33, which reads as follows:

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

In other states that similarly require allocation of fault between defendants, courts have held that the jury may be required to allocate percentages of fault between an employee driver and his employer against whom separate claims similar to negligent training, entrustment, hiring and supervision are made. 


Ken Shigley is a trial attorney in metro Atlanta. He is listed as a "Super Lawyer" (Atlanta Magazine), "Legal Elite" (Georgia Trend Magazine), and is a  Certified Civil Trial Advocate of the National Board of Trial Advocacy. He  recently elected Secretary of the 40,000 member State Bar of Georgia. He is available for a free consultation in cases of serious personal injury or wrongful death in Georgia.