Defenses to Negligence Claims in Georgia

Suppose a driver turns left at a red light in front of a second driver’s car, causing a car accident. The first driver is clearly negligent. However, let’s assume the accident could have been avoided entirely had the second driver not been speeding. Courts have three different ways of apportioning the blame – and thus the liability – in cases where both parties are negligent: Contributory Negligence, Comparative Negligence and Assumption of the Risk.

First, the doctrine of Contributory Negligence may be used to completely bar a plaintiff who contributes to the accident. In the car wreck example above, if the second driver was indeed speeding and contributed to the accident, she would not be able to recover any damages in a jurisdiction that adopts the rule of contributory negligence.

Comparative Negligence is a defense that may be used to reduce the recovery of a Plaintiff that contributes to the accident. Her recovery will be reduced by the percentage of her negligence. Most jurisdictions have adopted this approach, including Georgia.

Specifically, Georgia follows a modified comparative negligence approach: Plaintiff will only recover if she is less than 50 percent at fault. In other words, if she is 40 percent at fault, he damages will be reduced by 40 percent, leaving her with 60 percent of her damages. Let’s say that Plaintiff suffers $100,000 in damages but is found to be 40 percent at fault. She would only be able to recover $60,000 because her recovery would be reduced by 40 percent, or $40,000.

Our neighbors, Alabama and North Carolina, follow a pure comparative negligence system, where damages are apportioned to each party regardless of each party’s percentage of fault. In other words, if Plaintiff is found to be 80 percent at fault, she could still recover 20 percent of her damages from Defendant. In Georgia, because she is more at fault than the defendant, she would be barred from recovery.

Another defense to negligence is assumption of the risk. A Plaintiff that voluntarily undertakes the risk that results in her injury is also barred from recovery. In order to prove assumption of the risk, Plaintiff must voluntarily choose to expose herself to a known risk. In other words, she knows and appreciates the risk, but still chooses to expose herself to the danger.

Let’s say you sign a waiver form before going skydiving. That would be an express assumption of the risk. You know the danger of skydiving, but voluntarily choose to expose yourself to it. Or, let’s say you get a recall notice informing you that the brakes on your car are defective and you notice that they are slipping, but you choose to drive your car anyway without getting the braes repaired. That is an assumption of the risk as well.

Assumption of the risk can be implied by the factual situation or expressly, when the plaintiff explicitly agrees to accept the risk involved. Many jurisdictions absorb implied assumption of the risk into comparative negligence rather than treating it as a completely separate defense. Georgia has both a comparative negligence statute and an assumption of the risk statute.