The insurance company has an argument, and you have a good answer to it. Georgia divides fault by percentages, so every percentage point a jury puts on someone else is money the insurance company keeps. Being a normal parent is not negligence.
You looked away for ten seconds. Every parent has.
Then your child was hurt, and a few days later a friendly adjuster called. The questions started out easy. Then came the one that was the point of the call: “Where were you when this happened?”
Most parents already blame themselves. The insurance company knows that. This post explains why it asks that question, what Georgia law lets it do with the answer, and what you should do about it.
Why the insurance company asks
Under O.C.G.A. § 51-12-33, each defendant pays only its own share of the damages. Every percentage point a jury puts on someone else is money the insurance company keeps.
Georgia divides fault by percentages. Under O.C.G.A. § 51-12-33, each defendant pays only its own share of the damages. The jury considers the fault of everyone who contributed to the harm, whether or not that person was, or could have been, named in the lawsuit.
So every percentage point a jury puts on someone else is money the insurance company keeps. If a driver is found 70 percent at fault and someone else 30 percent, the driver’s insurer pays 70 percent. No one has to pay the other 30 percent for the insurer’s math to work.
The legislature amended the statute in 2022, and it now reaches cases with a single defendant as well as cases with several.
That is why “Where were you?” is not small talk.
How the blame gets into a lawsuit
To have a jury consider the fault of someone who is not a party, the defendant must file a notice at least 120 days before trial. O.C.G.A. § 51-12-33(d).
A defendant cannot simply stand up at trial and point at you. To have a jury consider the fault of someone who is not a party, the defendant must file a notice at least 120 days before trial. The notice must name that person and briefly state why that person was at fault. O.C.G.A. § 51-12-33(d).
The defendant carries the burden of giving the jury a rational basis to assign that fault.
A finding like that would not make you personally liable. The statute says a nonparty’s fault is used only to set the percentages of the named parties. But it can shrink what your child recovers, which is what the insurer wants.
Can a jury actually put fault on a parent?
A jury may consider a nonparty’s fault only when the nonparty is shown to have committed a tort against the plaintiff that was a proximate cause of the injury. Until the courts settle it, expect insurers to try.
Here is the honest answer: the insurance company has an argument, and you have a good answer to it.
Their argument. In Zaldivar v. Prickett, 297 Ga. 589 (2015), the Supreme Court of Georgia held that a jury may assign fault to a nonparty employer even though the employer was immune from suit. In Barnett v. Farmer (2011), the Court of Appeals allowed fault to be assigned to the injured person’s spouse, despite the old rule of interspousal immunity. Georgia also has a parental immunity doctrine. An unemancipated child generally cannot sue a parent for simple negligence, though that immunity does not cover willful or malicious acts. An insurance lawyer will say parents should be treated just like the employer and the spouse.
Your answer. Zaldivar also set a limit. A jury may consider a nonparty’s fault only when the nonparty is shown to have committed a tort against the plaintiff that was a proximate cause of the injury. Being a parent who was not looking at the exact second a stranger did something careless is not the same as committing a tort against your own child. And immunity for a parent was built to protect families, not to hand a discount to the person who caused the harm.
I have not found a Georgia appellate decision that squarely decides whether a parent’s supervision can be put on the verdict form this way. Until the courts settle it, expect insurers to try.
Your claim and your child’s claim are affected differently
If you are found partly at fault, your own recovery on that claim can be reduced by your percentage. If a jury assigns a percentage to you as a nonparty, the defendant’s share goes down anyway.
When a child is hurt, there are two claims. One belongs to your child. One belongs to you. Blame affects them differently.
Your claim. You hold the claim for the medical bills while your child is a minor. If you are found partly at fault, your own recovery on that claim can be reduced by your percentage, and if you are found 50 percent or more at fault, you recover nothing. O.C.G.A. § 51-12-33(a), (g).
Your child’s claim. The child did not choose where you were standing. The traditional rule is that a parent’s negligence is not imputed to the child. But if a jury assigns a percentage to you as a nonparty, the defendant’s share goes down anyway, and your child can end up with less through no fault of the child’s own.
Do not confuse this with blaming the child. That is a separate question, and it turns on age. I have written about Georgia’s tender years doctrine and how it plays out when a child darts into the street.
Being a normal parent is not negligence
The law does not require a parent to be perfect, and it does not require you to watch your child every second of the day. The argument is weakest when someone else had taken charge of your child.
The word in the law is “reasonable.” The law does not require a parent to be perfect, and it does not require you to watch your child every second of the day.
The argument is also weakest when someone else had taken charge of your child. If your child was at a day care, a school, a camp, or a friend’s house, you handed your child to someone who agreed to do the watching. A person who takes charge of children must use reasonable care. You do not become careless by trusting them. I have written about what that means at a day care and at a private school.
Drivers do not get to shift their duty to you either. O.C.G.A. § 40-6-93 requires every driver to exercise due care to avoid colliding with a pedestrian and to exercise proper precaution upon observing any child. A neighborhood full of children is the driver’s responsibility too.
Car seats are the place to be careful. After SB 68, seat belt evidence can reach the jury, and the duty to buckle a small child belongs to the adult driving. I explained that in my post on Georgia’s 2025 tort reform. If you were driving and the car seat was not used correctly, tell your lawyer at the first meeting.
When a parent really was part of what happened
Your child may still need money for care, and insurance exists for that. Once a parent’s conduct is in question, the parent’s interests and the child’s interests may not be the same.
Sometimes a parent, a grandparent, or a brother was the one driving. Sometimes a parent backed over a child in the driveway. I have sat with those families. There is no harder conversation.
Two things are still true. The first is that your child may still need money for care, and insurance exists for that. Parental immunity and family exclusion clauses make these claims hard, but they need to be read by a lawyer before anyone decides nothing can be done.
The second is that once a parent’s conduct is in question, the parent’s interests and the child’s interests may not be the same. When you sign for your child, you are acting for your child. A good lawyer will raise this with you plainly, and a judge reviewing a settlement may ask about it.
The phone call
Never lie about what happened. But you have no duty to give a recorded statement to the other side’s insurance company, and you should not speculate about what you could have done differently.
The adjuster is not asking because the adjuster is worried about you. Here is how innocent words get used later.
“I only looked away for a second.”
“I should have been watching him.”
“I feel like this is all my fault.”
Every parent says those things. They are grief. In a claim file, they become admissions.
Never lie about what happened. Your lawyer needs the whole truth, the good facts and the bad, and a lie will hurt your child’s case far more than the truth ever could. But you have no duty to give a recorded statement to the other side’s insurance company, and you should not speculate about what you could have done differently. Refer the call to your lawyer.
What I tell parents
Do not give a recorded statement to the other side’s insurance company before you get advice. Tell your lawyer about car seats, seat belts, and anything else you are worried about, at the first meeting.
- Do not give a recorded statement to the other side’s insurance company before you get advice.
- Do not post about the injury on social media, and that includes “I’ll never forgive myself.”
- Write down right away where you were, what you could see, and who else was responsible for your child at that moment. Give it only to your lawyer.
- Tell your lawyer about car seats, seat belts, and anything else you are worried about, at the first meeting.
- Get the names of the people who were supervising, and find out what rules applied to them.
- Protect both claims inside the ordinary two years.
You will likely carry this for the rest of your life, whatever a jury says. Do not let an insurance company use that against your child. The question in a Georgia courtroom is not whether you could have done something differently. Every parent could have. The question is who had a duty, and who broke it.
Attorney Pete Pearson has practiced personal injury law in Georgia since 1996. He has a special interest in helping families of injured children. He is a father of ten and lives with his wife and children in Newborn, Georgia.
If you need to talk, my direct line is Six-Seven-Eight 358-2564, or email pete@petepearsonlaw.com.