What notice must a defendant give before blaming an absent non-party for the injury?

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A defendant who wants a Georgia jury to assign fault to someone who is not in the case has to announce that intention well ahead of trial and back it with specifics. The rule lives in the apportionment statute, and missing its deadline usually forecloses the empty-chair strategy entirely.

The 120-day filing rule

O.C.G.A. § 51-12-33 allows a jury to consider a non-party’s fault only when the plaintiff has settled with that person or when a defending party files notice no later than 120 days before the trial date. The notice is filed as a pleading in the case, so it becomes part of the record rather than an informal letter to the other side.

The timing is counted backward from the scheduled trial, which means the defense has to commit early, while there is still time for the plaintiff to investigate the accusation and develop a response.

What the notice must contain

The statute does not accept a vague gesture toward an unknown culprit. The pleading must identify the non-party and explain why the defense believes that person shares blame. In practical terms it should include:

  • The non-party’s name, or the best available identification if the name is unknown.
  • The last known address or comparable locating information.
  • A brief statement of the factual basis for asserting that the non-party was wholly or partly at fault.

Naming the person is not enough on its own. At trial the defendant still has to produce evidence supporting the allegation, because the jury cannot allocate fault on suspicion alone.

What happens when notice is defective or late

Courts treat the 120-day deadline as a real gate. A defendant who files late, names no one, or offers a bare assertion with no factual basis generally cannot ask the jury to put a percentage on the absent person. When that happens, the fault that might have been shifted away stays with the parties who are actually present, which can raise their exposure.

The bottom line

Blaming an absent actor in Georgia is a formal step, not an argument saved for closing. The defense must file a proper non-party notice at least 120 days before trial, identify the person, and state a factual basis, then prove it with evidence. A claimant who spots a missing or untimely notice can move to keep that empty chair out of the case.

This article is for general educational and informational purposes only and is not legal advice. It does not create an attorney-client relationship, and Georgia law may change. For advice about a specific situation, consult a licensed Georgia personal injury attorney.

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