Can Defendants Apportion Fault to a Non-Party in Georgia Personal Injury Cases?

Georgia has an apportionment statute that allows defendants to apportion fault to non-parties. Georgia’s apportionment statute, codified in O.C.G.A. § 51-12-33, allows holding each party whose fault contributed to the plaintiff’s injury responsible for their respective share of fault. 

The statute requires a jury to apportion responsibility for a plaintiff’s injury among the defendant and non-parties whose negligent or intentional acts contributed to the harm. Under the apportionment statute, each at-fault party’s liability is limited to their apportioned percentage of fault.

If a defendant in your case is trying to apportion fault to non-parties or shift the blame onto someone else, do not hesitate to contact a knowledgeable attorney in Georgia. 

Schedule a consultation with our Atlanta premises liability attorneys at Hoffspiegel Law to investigate your particular situation and ensure that the defendant or defendants are held responsible for causing your injury.

How does Georgia’s apportionment statute work? 

When determining liability for your injury, the jury will consider the fault of all parties and non-parties who caused or contributed to your injury or damages, according to O.C.G.A. § 51-12-33(c), even if the at-fault party could not have been named as a defendant in the lawsuit. 

Under Georgia’s apportionment statute, the jury may apportion fault to a non-party when either of the following is true:

1. The plaintiff entered into a settlement agreement with the non-party whose fault contributed to the injury; or
2. The defendant gave notice at least 120 days (four months) before trial identifying a non-party as entirely or partially at fault for the plaintiff’s injury. 

Many defendants try to take advantage of Georgia’s apportionment statute to shift the responsibility onto a non-party in an attempt to reduce their own liability. However, defendants have the burden to prove a rational basis for apportioning fault to a non-party. 

Note: a defendant that ignores the notice rule can lose apportionment altogether. In Freese II, Inc. v. Mitchell, 318 Ga. App. 662, 734 S.E.2d 491 (2012), the defendant filed no notice at all and raised apportionment for the first time on the first day of trial. The Court of Appeals held that under the plain language of the statute, apportionment could not be considered. The court assumed without deciding that the issue had survived the entry of default on liability, so the decision rests on the notice failure rather than on the default.

Which Version of the Statute Applies to Your Case

Georgia’s apportionment law changed twice after this article was first published, and which rule governs a given case depends on when the lawsuit was filed.

In Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 862 S.E.2d 295 (Ga. 2021), decided August 10, 2021, the Georgia Supreme Court held that the apportionment provision in subsection (b) applied only where an action was brought against more than one person. The consequence was substantial: a sole defendant could not reduce its liability by fault assigned to a non-party at all. The only reduction available was for the plaintiff’s own comparative fault under subsection (a).

The General Assembly responded with House Bill 961, which amended subsection (b) to read “one or more persons” and restored non-party apportionment in single-defendant cases. It took effect May 13, 2022, and by its own terms applies to all cases filed after that date.

So the timeline matters more than it looks. In a suit filed on or before May 13, 2022, a lone defendant cannot shift fault to a non-party, and that stays true however long the case remains pending. In a suit filed after that date, it can. The date of the injury does not control — the filing date does. For plaintiffs, that is one more reason the decision about whom to name as a defendant is a strategic one rather than a mechanical one.

A defendant could reduce liability by apportioning fault to non-parties

Georgia courts have held that fault may be apportioned to non-parties for intentional conduct as well as negligent conduct. Couch v. Red Roof Inns, Inc., 291 Ga. 359, 729 S.E.2d 378 (2012).

It means that a defendant could reduce liability by apportioning fault to non-parties when a plaintiff suffers harm due to a third-party criminal act. 

For example, if you filed a negligent security lawsuit against a property owner in Georgia, the defendant may apportion fault to the assailant who assaulted you. Since the jury must determine liability based on each party’s percentage of fault, the landowner may be deemed 50% responsible for your injury for not having proper security measures. The remaining 50% of responsibility may be apportioned to the criminal assailant who caused your injury. 

Note: that example describes how apportionment works under the general statute. For causes of action arising on or after April 21, 2025, Georgia’s 2025 tort reform created a separate statutory scheme governing negligent security claims against property owners, with its own apportionment provision that pushes more of the fault toward the criminal wrongdoer and away from the owner. Our overview of Georgia’s new tort reform laws covers that legislation.

Note: Under Georgia’s modified comparative negligence rule, a plaintiff is barred from recovering any damages if they were 50% or more responsible for their injury or damages. 

If you have filed a premises liability lawsuit against a property owner whose negligence caused you harm, but the owner is trying to apportion fault to non-parties, contact a skilled attorney right away. Our lawyers at Hoffspiegel Law have vast experience handling premises liability cases involving claims for apportionment of fault. Call (404) 760-8600 to receive a consultation.