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Common defense to personal injury relating to a plaintiff's own conduct

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 snap before.

Comparative Negligence

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.