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What Is Apportionment and the Empty Chair in Georgia?
When more than one person or company caused your injury, Georgia splits the fault among them and makes each one pay only its own share.
That split can include people who were never sued, called nonparties. Pointing the jury at an absent nonparty is the empty chair defense.
It is a powerful move, because every point of fault placed on an empty chair is a point the named defendant does not have to pay.
Since Georgia abolished joint liability, fault assigned to an absent party is usually money you never collect from anyone.
A 2025 law widened the tactic, letting the defense blame a nonparty even when there is only one defendant in the case.
Call (888) 713-6653 for a free review of your Georgia injury claim. You Win or It's Free.
At-a-Glance: Apportionment and the Empty Chair
- Georgia apportions damages by each party's percentage of fault (O.C.G.A. § 51-12-33)
- Joint and several liability is abolished, so each defendant pays only its own share
- Fault can be assigned to a nonparty who was never sued, the empty chair
- A defendant must give notice of intent to blame a nonparty at least 120 days before trial
- A 2025 law (SB 68) restored nonparty apportionment in single-defendant cases
- Fault placed on an absent nonparty is often uncollectable, which is why naming every real defendant matters
How Apportionment Works in Georgia
When a Georgia injury is caused by more than one party, the trier of fact assigns each one a percentage of the fault under O.C.G.A. § 51-12-33.[1] The damages are then divided along those percentages, and each defendant is responsible only for the slice the jury puts on it.
Georgia abolished joint and several liability for these apportioned damages. That is the part with teeth. In a joint-liability state, you could collect the entire award from any one defendant and let the defendants sort out their shares among themselves. In Georgia you cannot. If one defendant is assigned 30 percent, that is all you collect from it, even if every other at-fault party is broke, gone, or never sued. This page is about that split among the defendants. The separate question of how your own share of fault reduces or bars your claim is covered in our breakdown of Georgia comparative negligence and the 50 percent bar.
The Empty Chair: Blaming Someone Who Was Never Sued
Georgia lets the jury weigh the fault of everyone who contributed to the injury, whether or not they are in the courtroom. A defendant can ask the jury to assign fault to an absent person or company, a nonparty, and that is the empty chair defense. The chair is empty because no one is sitting in it to answer the blame.
The empty chair can be almost anyone the defense can point to: a phantom driver who fled, a contractor that already settled and left the case, a manufacturer in bankruptcy, an employer shielded by workers' compensation, even the person who committed a crime. Whoever it is, the goal is the same. Move percentage points off the named defendant and onto someone you cannot collect from.
The 120-Day Nonparty Notice Rule
The defense does not get to spring an empty chair at trial. To put a nonparty's fault in front of the jury, a defendant generally has to give written notice at least 120 days before trial, identifying the nonparty and the basis for blaming it. A nonparty's fault can also come into the case when the plaintiff has already settled with that party and let it out.
The notice matters because it sets a deadline for the fight over who caused the harm. The defendant carries the burden of actually proving the nonparty was at fault, with evidence, not a name and a theory. When a notice lands, the plaintiff has decisions to make: add the nonparty as a real defendant, gather proof to rebut the allocation, or both. An empty chair that goes unanswered is the version that does the most damage.
The 2025 Change: Empty Chairs in Single-Defendant Cases
For a few years, there was a real limit on this tactic. In Alston & Bird v. Hatcher Management Holdings (2022), the Georgia Supreme Court read the apportionment statute to mean fault could not be assigned to a nonparty when only one defendant was named. If the plaintiff sued a single defendant, the empty chair was off the table.
That changed in 2025. Senate Bill 68, signed into law on April 21, 2025, amended O.C.G.A. § 51-12-33 to restore nonparty apportionment in single-defendant cases.[2] A lone defendant can once again ask the jury to spread fault onto absent nonparties. The change applies going forward under the new law, so the timing of the incident and the case can decide which rule controls. For an injured person, the practical lesson is sharper than ever: do not assume that suing one obvious defendant protects the whole recovery.
Why the Empty Chair Shrinks Your Recovery
The damage the empty chair does is easiest to see in dollars. Take a clean case where the jury finds you, the injured plaintiff, zero percent at fault, on a 1 million dollar verdict:
- One defendant named, a nonparty blamed. The jury puts 60 percent on the defendant you sued and 40 percent on an absent contractor you never named. You collect 600,000 dollars from the defendant. The 400,000 dollars assigned to the empty chair is uncollectable.
- The same case, both parties named. Had the contractor been identified and sued before trial, its 40 percent would have been a collectable share against a real defendant and its insurer, not a write-off.
- The takeaway. Under Georgia's no-joint-liability rule, an unnamed at-fault party is not the defendant's problem. It is yours.
That is the whole reason the defense reaches for the empty chair, and the whole reason the answer to it starts long before trial.
How an Attorney Answers the Empty Chair
The defense against an empty chair is built during the investigation, not improvised at trial.
- Find every responsible party early. The investigation maps every person and company whose conduct contributed, before the defense gets to choose who sits in the empty chair.
- Name the collectable ones. A party who is sued and insured turns a potential write-off into a real source of recovery.
- Hold the defense to its burden. A nonparty allocation is not free. The defendant has to prove that absent party's fault, and a thin, speculative theory can be met and beaten with evidence.
- Watch the settlements. Releasing one defendant can hand the remaining defendant an empty chair, so settlement strategy and apportionment have to be planned together.
Apportionment is one of the most consequential parts of a Georgia injury case, and it rewards the side that did the homework on who caused the harm. The broader mechanics of how fault is split, state by state, are covered in our look at comparative negligence laws by state.