Contributory negligence is a common defense used by a defendant in a negligence action. Essentially, contributory negligence is the defendant retorting to a Plaintiff: “you were negligent too!” Under a claim of contributory negligence, the defendant asserts that the plaintiff failed to use the relevant degree of care for his or her own safety, and that such failure should disqualify the plaintiff from recovering against the plaintiff. For example, if a plaintiff and defendant both violated a statute, the defendant could establish the plaintiff’s negligence by demonstrating the plaintiff violated the relevant statute also. If the defendant is successful in a contributory negligence defense, this is a complete bar to the plaintiff’s recovery.
Due to the harshness inherent in a complete bar to plaintiff’s recovery if the defendant shows plaintiff was slightly negligent, contributory negligence is not looked upon favorably in most jurisdictions and a majority of jurisdictions have now adopted a “comparative negligence” system, including the state of Georgia. In a comparative negligence system, the trier of fact compares the plaintiff’s negligence to the defendant’s negligence, and the plaintiff’s own negligence may reduce the plaintiff’s recovery pro-rata. This reduction in recovery, versus a complete bar to recovery, is the reason comparative negligence is favored over contributory negligence. Georgia’s doctrine of comparative negligence is codified in the Official Code of Georgia Annotated Title 51, Chapter 11, Section 7 which provides: “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. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” O.C.G.A. §51-11-7. However, if the plaintiff is found to be 50% or more negligent when compared to defendant(s), then he is barred from recovering anything. Thus, the concept inherent in the “complete bar” of contributory negligence remains vestigially if the plaintiff’s culpability is equal to or more than defendant.
This Georgia code section also includes the Georgia assumption of risk doctrine. Although the plaintiff’s recovery may be reduced by the plaintiff’s negligence, such recovery could be completely barred if the defendant is successful in establishing the three elements for Georgia’s assumption of risk doctrine.
In some relationships, the contributory negligence of one person can be imputed as the contributory negligence of the plaintiff, such employer/employee relationships. In other similar relationships, such as parent/child, vehicle owner/driver and husband/wife, for public policy reasons negligence is not automatically imputed negligence from one party to another. However, when a parent brings an action against another for the death of his child, the defendant can raise a contributory or comparative negligence defense, asserting that the parent was somehow responsible due to the lack of supervision or oversight.
Georgia Courts have held contributory negligence is not an available defense to a defendant when the alleged act was an intentional act or one of wanton or willful conduct. McEachern v. Muldovan, 505 S.E.2d 495, 500 (Ga. App. 1998).
From a main office in Gwinnett County, attorney Charles Scholle serves clients from offices in Midtown and the Perimeter and represents victims throughout Atlanta and Georgia. To set up your free consultation, you can send the firm a message online or call toll-free at 866-972-5287 or in Atlanta at 770-717-5100.