In most personal injury lawsuits, the reason why the plaintiff was injured usually boils down to negligence. Negligence requires a showing of a duty owed to the plaintiff, a breach of that duty, causation, and damages. In most cases, the duty owed is that of a “reasonably prudent person.” When the defendant’s conduct falls below that standard, he or she has breached this duty. Once the plaintiff establishes that his or her injuries were caused by this breach, a case of negligence has been established.
The compensation the plaintiff receives—known as “damages” in legal parlance—is the amount of money necessary to compensate the victim for the injury and to make him whole, as if the accident had never happened. However, this classic conception of negligence assumes that the defendant was totally at fault for the accident and that the plaintiff was blameless. What happens if the plaintiff was also partially at fault for the accident? In these cases, the courts developed the legal doctrines of contributory negligence and comparative negligence.
Under the doctrine of contributory negligence, a plaintiff may not recover if he or she was partially at fault for the accident. This doctrine is based on the theory that everyone has a duty to act as a reasonable person and that this duty extends to one’s self. Thus, if a person is not acting reasonably and gets injured, they have breached the duty they owe to themselves and may not then recover from someone else. This is a very strict rule; under traditional contributory negligence, a plaintiff would be totally barred from recovery if the defendant could establish that the plaintiff was even partially at fault. As a result of this harshness, this rule has been replaced in most states, including Georgia, by a comparative negligence scheme.
Under a comparative negligence scheme, a plaintiff is not barred from recovery if he or she was partially at fault for the injuries; rather, the damages award is merely reduced by the percent of the injury that was attributed to the plaintiff’s own negligence. Courts determine this by looking at the relative fault of both parties. For example, assume that there was an accident in which the plaintiff suffered $10,000 worth of injuries. The court finds that the defendant was 60% at fault and that the plaintiff was 40% at fault. Under a comparative negligence scheme, the plaintiff’s damages would be reduced by 40%, thus allowing her to recover $6,000 from the defendant.
There are two major types of comparative negligence schemes
- Pure comparative negligence: Under this scheme, a plaintiff can recover any portion of the damages for which she is not at fault. So, in the above example, assume that the plaintiff was 90% at fault and the defendant was 10% at fault. Under a pure comparative negligence scheme, the plaintiff would be able to recover $1,000 even though she was overwhelmingly at fault for the accident.
- Modified comparative negligence: Under a modified comparative negligence scheme, a plaintiff may only recover damages if she was less than 50% at fault for the accident. In the first example above, the plaintiff was only 40% at fault, so she would be able to recover $6,000 in damages under a modified comparative negligence scheme. In the second example, however, the plaintiff would be barred from recovery, since her portion of the fault was far in excess of 50%.
Modified comparative negligence is the most common approach, and is the one used by Georgia courts.
Contact an Atlanta Personal Injury Attorney
If you’ve been injured in an accident for which you were partially at fault, don’t worry; you may still be able to recover. Contact the attorneys at Slappey & Sadd for a free consultation to discuss your case by calling 404.255.6677. We serve the entire state of Georgia, including Fulton County, DeKalb County, and Cobb County.