Georgia largely abolished traditional joint and several liability through tort reform. Under the current framework, each defendant is generally liable only for their proportionate share of fault as determined by the jury. A defendant who is found 20% at fault pays 20% of the damages, not the full amount. There are exceptions, including situations involving intentional torts and certain statutory schemes. As a practical illustration: if a jury assigns 40% fault to Defendant A (an insured trucking company), 35% to Defendant B (a now-bankrupt maintenance contractor), and 25% to the plaintiff, the plaintiff’s maximum recovery is 40% of total damages from Defendant A only. The 35% share attributable to the insolvent Defendant B is permanently lost. The shift to proportionate liability significantly affects plaintiff strategy when one defendant is insolvent or judgment-proof, because the solvent defendants are no longer required to absorb the insolvent party’s share.
10.1. In what specific circumstances does joint and several liability still apply in Georgia after tort reform?
Joint and several liability survives in limited circumstances including intentional tortfeasors acting in concert, certain statutory schemes imposing joint liability, and situations involving common duty or common plan. When a defendant acted with specific intent to harm, proportionate liability does not shield them. These exceptions are narrowly construed. For example, if a bar patron is assaulted (intentional tort) and the bar is found negligent for inadequate security, the assailant faces joint and several liability for the full damages while the bar faces only proportionate liability for its allocated share. This asymmetry means the plaintiff’s practical recovery depends heavily on whether the intentional tortfeasor has assets or insurance to satisfy a judgment.
10.2. How does the abolition of joint and several liability affect a plaintiff’s strategy when one defendant is insolvent?
Under proportionate liability, a plaintiff whose co-defendant is insolvent absorbs the loss for that defendant’s share. This forces plaintiffs to evaluate financial viability of each potential defendant before litigation, investigate insurance coverage and assets, and consider whether expected recovery justifies the investment.
10.3. How does Georgia handle a co-defendant’s insolvency in allocating damages among remaining defendants?
Georgia does not redistribute an insolvent defendant’s share among remaining solvent defendants. Each defendant pays only their assigned percentage regardless of whether others can pay. If one defendant cannot pay, the plaintiff’s total recovery is reduced by that defendant’s share.
10.4. What is the procedure for apportioning fault to a settling defendant who is no longer in the case at trial?
Remaining defendants can ask the jury to allocate fault to the settling party, whose name appears on the verdict form. The remaining defendants present evidence of the settling party’s negligence. The plaintiff’s recovery from remaining defendants is limited to those defendants’ individual fault percentages.
10.5. How do Georgia courts treat intentional tortfeasors under the proportionate liability framework?
Intentional tortfeasors are generally not protected by proportionate liability and may face joint and several liability. When conduct was intentional rather than merely negligent, Georgia treats that defendant differently. An intentional tortfeasor may be held liable for full damages regardless of other defendants’ contributions.
10.6. Can a defendant seek contribution from a co-defendant after paying more than their proportionate share in Georgia?
Under proportionate liability, contribution claims have been significantly reduced because each defendant is responsible only for their own share. Contribution may still be available in limited circumstances where joint and several liability applies. A defendant who overpays may seek recovery through contractual indemnification or equitable remedies.
10.7. How does Georgia’s proportionate liability framework apply in cases involving vicarious liability alongside direct negligence?
When a defendant faces vicarious liability for an employee’s negligence, the employer and employee are treated as a single unit for fault allocation. The jury assigns one fault percentage to the employer-employee unit rather than separate percentages. Third-party defendants with independent negligence receive their own separate allocation.
10.8. How does the presence of an immune defendant, such as a government entity, affect fault apportionment in Georgia?
Fault can be allocated to an immune defendant on the verdict form but the immune party pays nothing. The plaintiff absorbs the loss for that party’s share, just as with an insolvent defendant. Remaining defendants pay only their own proportionate shares, which can significantly reduce the plaintiff’s available recovery.
Georgia’s shift from joint and several to proportionate liability fundamentally changed how personal injury cases are valued, negotiated, and tried. The framework rewards thorough pre-suit investigation of all potential defendants and their financial capacity. Understanding the limited exceptions that preserve joint liability and the strategic implications of fault allocation to non-parties and immune entities is essential for effective case management in Georgia. Senate Bill 68 (April 2025) added a notable new dimension to this framework in negligent security cases: the jury is now required to apportion fault to the criminal perpetrator, and a rebuttable presumption applies that the apportionment is unreasonable if the perpetrators’ total share of fault is less than the total share assigned to all other parties. This mandatory apportionment structure in negligent security claims reinforces and extends the proportionate liability framework in cases involving third-party criminal acts.
Disclaimer: This content is provided for informational and educational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this material. Georgia law is subject to change through new legislation and court decisions. Always consult a qualified Georgia attorney for advice specific to your situation.