2020 Georgia Code
Title 51 - Torts
Chapter 12 - Damages
Article 2 - Joint Tort-Feasors
§ 51-12-31. Recovery Against Joint Trespassers

Except as provided in Code Section 51-12-33, where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury. In its verdict, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally.

(Orig. Code 1863, § 3007; Code 1868, § 3020; Code 1873, § 3075; Code 1882, § 3075; Civil Code 1895, § 3915; Civil Code 1910, § 4512; Code 1933, § 105-2011; Ga. L. 1987, p. 915, § 8; Ga. L. 1992, p. 6, § 51; Ga. L. 2005, p. 1, § 12/SB 3.)

- Ga. L. 2005, p. 1, § 1/SB 3, not codified by the General Assembly, provides that: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."

Ga. L. 2005, p. 1, § 14/SB 3, not codified by the General Assembly, provides for severability.

Ga. L. 2005, p. 1, § 15(b)/SB 3, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply only with respect to causes of action arising on or after February 16, 2005, and any prior causes of action shall continue to be governed by prior law.

- For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 221 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For article, "Premises Liability and Apportionment Following Martin v. Six Flags Over Georgia II, L.P.," see 69 Mercer L. Rev. 1 (2017). For note, "The Effect (Or Noneffect) of the 2004 Amendments to O.C.G.A. §§ 51-12-31 and51-12-33 on Joint Liability in Georgia," see 44 Ga. L. Rev. 215 (2009). For comment, "Where Do We Go From Here? The Future of Caps on Noneconomic Medical Malpractice Damages in Georgia," see 28 Ga. St. U.L. Rev. 1341 (2012).

ANALYSIS

• General Consideration
• Master/Servant Relationship
• Jury

Joint tort-feasors are jointly and severally liable for the full amount of an injured party's damages, notwithstanding the absence of voluntary and intentional concert of action among them. Johnson v. Landing, 157 Ga. App. 313, 277 S.E.2d 307 (1981).

Rule of joint and several liability among joint tort-feasors can be disregarded, under O.C.G.A. §§ 51-12-31 and51-12-33, with several separate judgments rendered in cases coming within the scope of these statutory provisions. Union Camp Corp. v. Helmy, 258 Ga. 263, 367 S.E.2d 796 (1988).

When concurrent causes operate directly in bringing about injury, there can be recovery against one or all the responsible parties. Adams v. Jackson, 45 Ga. App. 860, 166 S.E. 258 (1932); McGinnis v. Shaw, 46 Ga. App. 248, 167 S.E. 533 (1933); Gosser v. Diplomat Restaurant, Inc., 125 Ga. App. 620, 188 S.E.2d 412 (1972); Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977), aff'd, 660 F.2d 531 (5th Cir. 1981).

Persons guilty of separate acts of negligence which jointly and concurrently cooperate in causing an injury, are joint tort-feasors, and may be sued as such. City of Atlanta v. Harris, 52 Ga. App. 56, 182 S.E. 202 (1935); Reeves v. McHan, 78 Ga. App. 305, 50 S.E.2d 787 (1948).

Persons whose separate acts of negligence combine to produce single injury may be sued jointly although owing different duties toward the plaintiff. Gosser v. Diplomat Restaurant, Inc., 125 Ga. App. 620, 188 S.E.2d 412 (1972).

- If a foreign substance should have been discovered in the exercise of ordinary care by the retailer, but was not so discovered, then both the manufacturer who put the dangerous article upon the market and the retailer who sold it to the plaintiff would be liable for the consequent injuries as joint tort-feasors, as the injury could not have been inflicted except for the negligence of both defendants. Maddox Coffee Co. v. Collins, 46 Ga. App. 220, 167 S.E. 306 (1932).

If separate and independent acts of negligence of two or more persons or corporations combine naturally and directly to produce a single indivisible injury other than a nuisance, and if a rational basis does not exist for an apportionment of the resulting damages among the various causes, then the actors are joint tort-feasors. Johnson v. Landing, 157 Ga. App. 313, 277 S.E.2d 307 (1981).

- When one is injured by the concurring negligence of two tort-feasors, each is liable for the whole injury although the other defendant may have contributed thereto in greater degree. Aretz v. United States, 503 F. Supp. 260 (S.D. Ga. 1977), aff'd, 660 F.2d 531 (5th Cir. 1981).

There is no accounting of comparative negligence between two negligent parties causing the injury and either of them can be held liable for the entire damage even though one was more negligent than the other. Church's Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979).

- Even though voluntary intentional concert is lacking, if the separate and independent acts of negligence of several combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred. McGinnis v. Shaw, 46 Ga. App. 248, 167 S.E. 533 (1933).

- When two or more persons or corporations, acting independently, without concert, plan, or other agreement, inflict a damage or cause an injury to another person, the persons inflicting the damage are not jointly liable therefor, but each is liable for one's proportion only of the damages; and in such a case a joint action against them cannot be maintained. McGinnis v. Shaw, 46 Ga. App. 248, 167 S.E. 533 (1933).

Mere fact that injury would not occur had only one act of negligence occurred will not of itself operate to define other act as constituting proximate cause, for if all acts of negligence contributed directly and concurrently in bringing about the injury, they together constitute the proximate cause. Adams v. Jackson, 45 Ga. App. 860, 166 S.E. 258 (1932); Gosser v. Diplomat Restaurant, Inc., 125 Ga. App. 620, 188 S.E.2d 412 (1972).

There can be only one recovery for damage by joint tort-feasors, and this applies even though the joint tort-feasors could not be joined in the same action. Dixon v. Ross, 94 Ga. App. 187, 94 S.E.2d 86 (1956).

Privilege of joinder of defendants in joint tort-feasor case is procedural one for the benefit of the injured plaintiff alone. H.W. Brown Transp. Co. v. Edgeworth, 90 Ga. App. 728, 84 S.E.2d 103 (1954).

Privilege of the plaintiff to have claim against two defendant tort-feasors tried in one suit is for the benefit of the plaintiff, the plaintiff alone is aggrieved by the order sustaining the plea to the jurisdiction of one defendant and the plaintiff alone has the right of appeal from that order and judgment. H.W. Brown Transp. Co. v. Edgeworth, 90 Ga. App. 728, 84 S.E.2d 103 (1954).

- Plaintiff may sue one or all joint tort-feasors, and when the plaintiff sues all the plaintiff may dismiss as to one defendant without affecting the plaintiff's rights as to the other defendant. City of Atlanta v. Harris, 52 Ga. App. 56, 182 S.E. 202 (1935); Reeves v. McHan, 78 Ga. App. 305, 50 S.E.2d 787 (1948).

- There can be but one satisfaction of the same damage or injury, and if the plaintiff proceeds, for a consideration, to fully settle and satisfy the plaintiff's claim against one joint tort-feasor, the plaintiff cannot by the terms of such accord and satisfaction, when the injury or damage complained of is the same, limit the release to the defendant thus dealt with, but in such a case the claim itself becomes extinguished. Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

Joint verdict and judgment fixes joint liability as between defendants to bear common burden, and the basis of the right of contribution is this joint liability to bear the common burden. Southern Ry. v. City of Rome, 179 Ga. 449, 176 S.E. 7 (1934).

- When a petition brought against two defendants as joint tort-feasors alleges acts of each defendant, which, if constituting negligence proximately causing the injury complained of, jointly and concurrently caused the injury, and the court sustains a general demurrer (now motion to dismiss) filed by one of the defendants, and overrules that filed by the other defendant, it is optional with the plaintiff whether one elects to proceed to trial against the defendant whose demurrer (now motion to dismiss) is overruled, or to stand upon the plaintiff's petition as charging the defendants as joint tort-feasors. Bleckley v. Western Carolina Tel. Co., 42 Ga. App. 110, 155 S.E. 83 (1930).

- In an action of trespass against joint trespassers under this section, for felling and carrying away trees, the damages to be recovered, will be, at least, equal to the value of the trees, as they lie felled. Smith v. Gonder, 22 Ga. 353 (1857).

- The purchaser of property sold under a lien which was not properly created, who has knowledge thereof, is a joint trespasser with the lienee. Mashburn & Co. v. Dannenberg Co., 117 Ga. 567, 44 S.E. 97 (1903).

- The plaintiff in execution, the attorney for the plaintiff in execution who orders the levy on property of the wrong person, and the officer who makes it, are all liable as trespassers under this section. McDougald v. Dougherty, 12 Ga. 613 (1853).

- Insurer was entitled to add certain parties as defendants in its declaratory judgment suit against insureds and a landowner, who had filed an underlying property damage suit against the insureds, because those parties had been added by the landowner as defendants in the underlying suit; if those parties were not included in the insurer's declaratory judgment suit, they might be precluded from obtaining contribution from an uninsured joint tortfeasor in accordance with O.C.G.A. § 51-12-31. Owners Ins. Co. v. Bryant, F. Supp. 2d (M.D. Ga. Jan. 9, 2006).

Cited in Graham v. Dahlonega Gold Mining Co., 71 Ga. 296 (1883); Cedartown Supply Co. v. Hooper, 13 Ga. App. 29, 78 S.E. 686 (1913); Chapman v. Lamar-Rankin Drug Co., 64 Ga. App. 493, 13 S.E.2d 734 (1941); Jacobs v. Rittenbaum, 193 Ga. 838, 20 S.E.2d 425 (1942); Minor v. Fincher, 206 Ga. 721, 58 S.E.2d 389 (1950); Southeastern Erection Co. v. Flagler Co., 108 Ga. App. 831, 134 S.E.2d 822 (1964); Gamble v. Reeves Transp. Co., 126 Ga. App. 161, 190 S.E.2d 95 (1972); Standard Oil Co. v. Mount Bethel United Methodist Church, 230 Ga. 341, 196 S.E.2d 869 (1973); Hodges v. Youmans, 129 Ga. App. 481, 200 S.E.2d 157 (1973); Gilson v. Mitchell, 131 Ga. App. 321, 205 S.E.2d 421 (1974); Chupp v. Henderson, 134 Ga. App. 808, 216 S.E.2d 366 (1975); Dodge Trucks, Inc. v. Wilson, 140 Ga. App. 743, 231 S.E.2d 818 (1976); Georgia Ports Auth. v. Hutchinson, 209 Ga. App. 726, 434 S.E.2d 791 (1993); Branch v. Alliance Syndicate, Inc., 220 Ga. App. 561, 469 S.E.2d 807 (1996); United States Fid. & Guar. Co. v. Paul Assocs., 230 Ga. App. 243, 496 S.E.2d 283 (1998); Furlong v. Dyal, 246 Ga. App. 122, 539 S.E.2d 836 (2000).

Master and servant may be jointly sued for damages resulting solely from negligence of servant, in which case the liability of the master and of the servant is joint and several. Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

Although the liability of the master and negligent servant is joint and several, the same principles apply to them in an action based solely on the negligence of the servant as would apply in actions against joint tort-feasors. Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

- When the liability, if any, of the master to a third person is purely derivative and dependent entirely upon the principle of respondent superior, and although not technically a joint tort-feasor, the master may be sued alone or jointly with the servant but a judgment in favor of the servant on the merits (and by analogy, a release of the servant from liability) will bar an action against the master when injury and damage are the same. Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

- In an action for damages growing out of a collision between the truck of the plaintiffs, driven by their servant, and the truck of the defendants, driven by their servant, which resulted in certain property damage to the plaintiffs' truck and certain personal injuries to the defendants' servant, the plaintiffs and the defendants' servant enter into an agreement, whereby the defendants' servant for and in consideration of the payment of a certain sum by the plaintiffs, releases the plaintiffs from all claims, anticipated and unanticipated, growing out of the collision, the release constitutes a settlement of the plaintiffs' claims against the servant, and a settlement of the plaintiffs' claims against the servant necessarily constitutes a release of the defendants as there can be only one satisfaction of the same injuries. Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

When action for damages is brought against two defendants jointly for trespass upon property, jury may return verdict against both for the greatest damage done by either. The jury may also return a verdict which specifies the particular damage to be recovered of each, and the verdict must in such case be entered severally. Daniel v. Robinson, 96 Ga. App. 342, 100 S.E.2d 94 (1957).

- This section, providing that the jury, in its verdict, may apportion the damages among joint trespassers is applicable only to trespasses against property, and has no application in an action for a personal tort. McCalla v. Shaw, 72 Ga. 458 (1884); Shermer v. Crowe, 53 Ga. App. 418, 186 S.E. 224 (1936); Gazaway v. Nicholson, 61 Ga. App. 3, 5 S.E.2d 391 (1939), aff'd, 190 Ga. 345, 9 S.E.2d 154 (1940); McCarthy v. Combs, 78 Ga. App. 426, 50 S.E.2d 805 (1948); Hightower v. Landrum, 109 Ga. App. 510, 136 S.E.2d 425 (1964).

Georgia follows the common-law rule against apportionment of damages among joint and several tort-feasors, the language of Ga. L. 1966, p. 609, § 20 (see now O.C.G.A. § 9-11-20(a)) notwithstanding, except when, under the provisions of former Code 1933, § 105-2011 (see now O.C.G.A. § 51-12-31), the statute law sanctions such apportionment in cases involving trespasses to property. Craven v. Allen, 118 Ga. App. 462, 164 S.E.2d 358 (1968).

A verdict which apportioned damages equally between the defendants was proper as claim was for damages to property only. Jones v. Hutchins, 131 Ga. App. 808, 207 S.E.2d 224 (1974).

Defendants are not entitled to require damages to be apportioned by the verdict. Ivey v. Cowart, 124 Ga. 159, 52 S.E. 436, 110 Am. St. R. 160 (1905).

- It was not error to refuse a request to charge the jury that when two or more persons acting independently cause an injury to another, the persons are not jointly liable, but each is liable for one's proportion only of the damages, because when the act of negligence alleged against the joint defendants was selling the same oil of a quality prohibited by law, there was no basis for the court, in instructing the jury, to distinguish or differentiate the negligence of one defendant from that of the other. General Oil Co. v. Crowe, 54 Ga. App. 139, 187 S.E. 221 (1936).

- When an action for personal injuries was brought against a manufacturer of coffee by one alleging oneself to have been injured by eating a portion of coffee grounds prepared and sold by the defendant manufacturer and containing an injurious foreign substance, it was a question of fact, for the jury to determine, whether the manufacturer alone was responsible for the injury to the plaintiff, or whether the manufacturer was jointly responsible with the retailer therefor. Maddox Coffee Co. v. Collins, 46 Ga. App. 220, 167 S.E. 306 (1932).

RESEARCH REFERENCES

Am. Jur. 2d.

- 74 Am. Jur. 2d, Torts, § 64 et seq.

- 86 C.J.S., Torts, § 39 et seq.

- May acts of independent tort-feasors, each of which alone causes or tends to produce some damage, be combined to create a joint liability?, 9 A.L.R. 939; 35 A.L.R. 409; 91 A.L.R. 759.

Joint, or joint and several, liability of two or more persons guilty of similar acts of misconduct one of which alone caused the injury, 50 A.L.R. 361.

Release of one tort-feasor as affecting liability of others, 50 A.L.R. 1057; 66 A.L.R. 206; 104 A.L.R. 846; 124 A.L.R. 1298; 148 A.L.R. 1270.

Joint liability for injury to third person or damage to his property due to concurring negligence of drivers of automobiles, 62 A.L.R. 1425.

Conflict of laws as to joinder of defendants, or as to the character of liability as joint or several, or joint and several, 77 A.L.R. 1108.

Right of defendant in action for personal injury or death to bring in a joint tort-feasor not made a party by plaintiff, 78 A.L.R. 580; 132 A.L.R. 1424.

Constitutionality, construction, and effect of statutes relating to exceptions to rule denying contribution or indemnity between joint tort-feasors, 85 A.L.R. 1091; 122 A.L.R. 520; 141 A.L.R. 1207.

Judgment for plaintiff in action in tort or contract against codefendants, as conclusive in subsequent action between codefendant as to the liability of both or the liability of one and nonliability of the other, 101 A.L.R. 104; 142 A.L.R. 727.

Negligence of third person, other than physician or surgeon, in caring for injured person or in failing to follow instructions in that regard as affecting damages recoverable against person causing injury, 101 A.L.R. 559.

Right of jury to apportion or sever damages as between joint tort-feasors and effect of their attempt to do so, 108 A.L.R. 792; 46 A.L.R.2d 801.

Rule that release of one joint tort-feasor releases other as applicable in case of anticipatory release prior to accident or injury, 112 A.L.R. 78.

Release of one of two or more persons who independent tortious acts combine to produce an injury as releasing other or others, 134 A.L.R. 1225.

Agreement with one tort-feasor that any judgment that may be recovered will not be enforced against him, as affecting liability of cotort-feasor, 160 A.L.R. 870.

Liability of several persons guilty of acts one of which alone caused injury, in absence of showing as to whose act was the cause, 5 A.L.R.2d 98.

Joint liability for slander, 26 A.L.R.2d 1031.

Release of one joint tort-feasor as discharging liability of others: modern trends, 73 A.L.R.2d 403, 6 A.L.R.5th 883.

What law governs right to contribution or indemnity between tort-feasors, 95 A.L.R.2d 1096.

Apportionment of damages involving successive impacts by different motor vehicles, 100 A.L.R.2d 16.

Liability insurance policy as covering insured's obligation to indemnify, or make contributions to, cotort-feasor, 4 A.L.R.3d 620.

Right of tort-feasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment, 8 A.L.R.3d 639.

Comparative negligence rule where misconduct of three or more persons is involved, 8 A.L.R.3d 722.

Financial worth of one or more of several joint defendants as proper matter for consideration in fixing punitive damages, 9 A.L.R.3d 692.

Apportionment of punitive or exemplary damages as between joint tort-feasors, 20 A.L.R.3d 666.

Voluntary payment into court of judgment against one joint tort-feasor as release of others, 40 A.L.R.3d 1181.

Contribution or indemnity between joint tort-feasors on basis of relative fault, 53 A.L.R.3d 184.

Right of tort-feasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment, 72 A.L.R.4th 231.

Validity and effect of "Mary Carter" or similar agreement setting maximum liability of one cotort-feasor and providing for reduction or extinguishment thereof relative to recovery against nonagreeing cotort-feasor, 22 A.L.R.5th 483.