If you are injured as a result of another party’s negligent acts
or omissions, you can file a personal lawsuit against the party to seek
compensation for the damages you sustained. However, the defendant may
present a number of defenses that could completely or partially bar you
from recovering for the damages you incurred.
Assumption of the Risk
One defense that the defendant may be able to raise, depending on the circumstances
of the accident which caused the plaintiff’s injuries, is “
assumption of the risk.” This defense asserts that the injuries sustained by the plaintiff
were caused by an inherently dangerous activity for which the plaintiff
understood the risks but voluntarily and knowingly engaged in regardless.
In this circumstance, the defendant no longer owes the plaintiff a duty
of care and therefore, is not liable for the injuries they sustain.
A well know Georgia case which illustrates the assumption of the risk defense
is Durham v. Mason. In this 2002 case, the Georgia Court of Appeals held
that the plaintiff had assumed the risk of being harmed by the defendants’
pet dog. The Court’s ruling was based on testimony from the plaintiff
which asserted that he was aware of the dog’s dangerous behavior.
The plaintiff testified that he had witnessed the dog growl, bark, and
A different but related defense that could result in a complete or partial
bar to recovery is “
comparative negligence.” This defense applies to cases where the plaintiff’s own
negligent acts or omissions contributed to the accident which resulted
in their injuries. Under Georgia law, a plaintiff is completely barred
from recovering when they are 50 percent or more at fault for the accident
that caused their injuries. However, if the plaintiff is less than 49
percent at fault for the injuries they sustained, they can still recover.
In this instance, the court would determine the plaintiff’s degree
of fault and reduce the total award for damages owed by the defendant
by that amount.
For example, lets say a pedestrian who was distracted by their mobile device
while in the crosswalk was struck by a driver who was speeding. If the
pedestrian files a personal injury lawsuit against the driver, the driver
may assert a comparative negligence defense. If the court determines that
both parties acted negligently, it will determine each party’s percentage
of fault. If the pedestrian is deemed to have been 20 percent at fault
and the driver 80 percent at fault, and the total amount of damages was
$100,000, the plaintiff will recover $80,000.
If you or a loved one have been injured in an accident, you should contact
an attorney immediately.