Does Georgia Still Have Joint and Several Liability?
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Only in a narrow class of cases. For damages apportioned under O.C.G.A. § 51-12-33(b), each defendant’s share “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”. But in FDIC v. Loudermilk (2019), the Supreme Court of Georgia held that the statute did not abolish joint and several liability for tortfeasors who act in concert in the traditional sense: where the fault of one is legally imputed to all through mutual agency, fault cannot be divided, and “damages (if any) will be awarded jointly and severally”.
When each rule applies
| Situation | Liability | Authority |
|---|---|---|
| Two or more defendants whose fault the jury can divide | Several only: each pays its own percentage; no contribution | § 51-12-33(b) |
| A single, indivisible injury caused by separate negligent acts | Still apportioned; "the damages flowing from that injury may be apportioned by statute among the tortfeasors responsible for causing it" | Couch v. Red Roof Inns (2012), as quoted in Loudermilk |
| Tortfeasors acting in concert under the traditional common-law doctrine, based on mutual agency and imputed fault | Joint and several | FDIC v. Loudermilk (2019) |
What Loudermilk requires
The Court described true concerted action through the common-law treatise it relied on: wrongdoers “in pursuance of a common plan or design to commit a tortious act … are equally liable”, and through “joint enterprise” and “mutual agency … the act of one is the act of all”. The Court said this doctrine “appears to be the same or almost identical to” what Georgia law calls civil conspiracy. It also emphasized that concerted action survives “only insofar as it was traditionally understood at common law within the context of torts”. Showing that several defendants each contributed to the same harm is not enough; the claim has to rest on a common plan and mutual agency.
What the shift means for recovery
Under several liability, if one defendant cannot pay its share, the plaintiff cannot collect that share from the others. A share of fault assigned to a nonparty under § 51-12-33(c) and (d) also reduces what the named defendants owe, and no one pays it. Those consequences raise two early questions:
- Who are all the people whose conduct contributed to the injury, and can each of them pay?
- Is there evidence of a common plan or agreement among them that would support concerted action?
How the jury divides fault among defendants and nonparties, including the 120-day nonparty notice and the 2022 single-defendant amendment, is explained in how damages are divided among multiple defendants.
Sources
- O.C.G.A. § 51-12-33 (text as published March 2024).
- FDIC v. Loudermilk, 305 Ga. 558 (2019)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.