In most personal injury cases, the plaintiff (the person who is injured) is trying to prove that the defendant (the person who is at-fault) was negligent and their negligence resulted in the plaintiff’s injuries. For example, the plaintiff in a car accident case might argue that the accident was caused by the fact that the defendant ran a stop sign, which caused the plaintiff’s neck injury. The defendant may argue that he wasn’t negligent or that he didn’t cause your injury.
Even if he can’t deny liability, there are still a couple of defenses that the defendant may raise. It’s important to understand what these are and how they work.
Contributory negligence is a defense raised by the defendant arguing that the plaintiff’s negligence contributed to the accident and the plaintiff’s injuries. Contributory negligence used to prohibit a plaintiff from recovering any compensation from an accident, and this is still the case in some states. Fortunately, this is not the case in Georgia. Georgia has adopted what is referred to as the “modified contributory negligence rule.”
Under a modified contributory negligence standard, the plaintiff’s recovery is adjusted downward by the amount of his or her negligence. Using our example from above, let’s say the plaintiff was speeding, and it was determined that this contributed to the accident by 10%. As a result, the plaintiff’s award for damages would be reduced by 10%.
There is an important caveat here, however. Under Georgia law, a plaintiff whose negligence contributed 50% or more to the accident cannot recover anything. Again, let’s use the example from above, but instead of speeding, let’s say the plaintiff also ran a stop sign. If he is 50% responsible for the accident, he cannot be compensated for his injuries.
Assumption of Risk
Another common defense raised by a defendant is that you assumed the risk of potential injury, and should, therefore, be barred from recovery. Georgia law has adopted this rule, by stating “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” The law has been further developed in cases interpreting the statute, resulting in three elements the defendant has to prove:
(1) the plaintiff had actual knowledge of the danger;
(2) the plaintiff understood and appreciated the risks; and
(3) voluntarily exposed himself to the danger.
Note that if the defendant can prove that you assumed the risk of injury, you probably cannot receive compensation, even if the defendant was negligent himself.
The assumption of risk defense is commonly raised in premises liability cases. For example, let’s say that you went to an indoor climbing gym and you were injured. If you sue the gym for your injuries, the gym will argue that you assumed the risk of injury, and therefore they should not be held liable.
Contact Slappey & Sadd – Georgia Personal Injury Attorneys
All of this sounds very straightforward but can get very complicated. An experienced attorney can help you with your case and give you the best chance to receive fair compensation for your injuries. If you’d like to set up a free consultation with one of our lawyers, call us at 404-255-6677 or email us today!