Skip to content

Defenses to Negligence Claims in Georgia

Defenses to Negligence Claims in Georgia

Suppose a driver turns left at a red light in front of a second driver’s car, causing a car accident. The first driver is clearly negligent. However, let’s assume the accident could have been avoided entirely had the second driver not been speeding. Courts have three different ways of apportioning the blame – and thus the liability – in cases where both parties are negligent: Contributory Negligence, Comparative Negligence and Assumption of the Risk.

First, the doctrine of Contributory Negligence may be used to completely bar a plaintiff who contributes to the accident. In the car wreck example above, if the second driver was indeed speeding and contributed to the accident, she would not be able to recover any damages in a jurisdiction that adopts the rule of contributory negligence.

Comparative Negligence is a defense that may be used to reduce the recovery of a Plaintiff that contributes to the accident. Her recovery will be reduced by the percentage of her negligence. Most jurisdictions have adopted this approach, including Georgia.

Specifically, Georgia follows a modified comparative negligence approach: Plaintiff will only recover if she is less than 50 percent at fault. In other words, if she is 40 percent at fault, he damages will be reduced by 40 percent, leaving her with 60 percent of her damages. Let’s say that Plaintiff suffers $100,000 in damages but is found to be 40 percent at fault. She would only be able to recover $60,000 because her recovery would be reduced by 40 percent, or $40,000.

Our neighbors, Alabama and North Carolina, follow a pure comparative negligence system, where damages are apportioned to each party regardless of each party’s percentage of fault. In other words, if Plaintiff is found to be 80 percent at fault, she could still recover 20 percent of her damages from Defendant. In Georgia, because she is more at fault than the defendant, she would be barred from recovery.

Another defense to negligence is assumption of the risk. A Plaintiff that voluntarily undertakes the risk that results in her injury is also barred from recovery. In order to prove assumption of the risk, Plaintiff must voluntarily choose to expose herself to a known risk. In other words, she knows and appreciates the risk, but still chooses to expose herself to the danger.

Let’s say you sign a waiver form before going skydiving. That would be an express assumption of the risk. You know the danger of skydiving, but voluntarily choose to expose yourself to it. Or, let’s say you get a recall notice informing you that the brakes on your car are defective and you notice that they are slipping, but you choose to drive your car anyway without getting the braes repaired. That is an assumption of the risk as well.

Assumption of the risk can be implied by the factual situation or expressly, when the plaintiff explicitly agrees to accept the risk involved. Many jurisdictions absorb implied assumption of the risk into comparative negligence rather than treating it as a completely separate defense. Georgia has both a comparative negligence statute and an assumption of the risk statute.

Negligent Infliction of Emotional Distress

If a person is injured by someone else’s intentional conduct, she may be able to recover in an action for intentional tort. For example, if someone intentionally hits that person, she may have a battery claim. She could also have a battery claim if the Defendant intentionally touched something closely connected to her. For example, perhaps defendant intentionally pulled Plaintiff’s backpack off of her as she was walking by. Plaintiff could recover for any injury caused as well as her pain and suffering. If there was no personal injury, she may have a separate claim for Intentional Infliction of Emotional Distress.

However, what happens if someone suffers emotional distress as a result of someone else’s unintentional conduct? Filing a claim for Negligent Infliction of Emotional Distress, or “NIED.” may be the key. In some states, in order to recover for NIED, Plaintiff has to prove that she suffered a physical impact before recovering for emotional distress CAUSED BY THE NEGLIGENCE of another, the emotional distress suffered must flow from PHYSICAL INJURIES the plaintiff sustained in an impact. Thus, the impact rule precludes the recovery of damages for NIED unless the emotional distress arises directly from the physical injuries sustained by the plaintiff in the impact.  The crux of a claim for negligent infliction of emotional distress is UNINTENTIONAL injury.

However, other states follow a modified rule, where recovery for NIED still requires direct physical impact, but that impact does not need to cause physical injury to the plaintiff, and the emotional trauma suffered by the plaintiff does not need to result from a physical injury caused by the impact. The direct physical impact is sufficient to satisfy the modified impact rule where the facts are such that the alleged mental anguish is not likely speculative, exaggerated, fictitious, or unforeseeable even if the physical impact is slight.

So, if a Defendant NEGLIGENTLY comes into contact with something closely connected to the plaintiff and it causes emotional trauma that was not speculative, exaggerated, fictitious, or unforeseeable even if the physical impact is slight, the Plaintiff will recover for NIED in a jurisdiction that follows the modified impact rule. For example, if Defendant negligently fired a bullet that grazes the plaintiff’s backpack, and plaintiff  suffers emotional trauma as a result, Plaintiff could claim NIED in a jurisdiction that follows the modified impact rule.

Negligence Per Se Atlanta Georgia

Negligence Per Se Atlanta Georgia

If an individual is injured because of the actions of another, she may be able to recover her damages if she can prove that the other person was negligent. As mentioned in previous posts, to prove that another person has acted negligently, you generally must demonstrate that the person acted unreasonably under the circumstances, which can sometimes be hard to do.

Under Georgia state law, one way you can prove unreasonable conduct is to show that the Defendant violated a statute. For example, let’s assume that the Defendant was speeding or ran a red light. As a result, the Defendant caused an auto accident, and another driver on the road was injured. We all know that both speeding and running a red light are against the law in every state in the United States. However, that does not automatically mean that the Defendant is liable for the Plaintiff’s injuries under the doctrine of negligence per se. Instead, you have three requirements to prove to invoke the doctrine:

  1. The injured Plaintiff must be within the class of persons that the law was intended to protect. In the case of the speeding car, the law against speeding was designed to protect drivers. Therefore, if another driver is hit by a speeding car, she is within the class of people the statute is designed to protect.
  2. Again, in the case of the speeding car, the law was intended to protect against people suffering an injury as a result of an automobile accident. Because the Plaintiff was injured in a car accident, she suffered the type of harm the statute was meant to protect against.
  3. Finally, you have to show that the Defendant’s violation of the statute was not excused. In other words, if the Defendant has an excuse for breaking the law, the doctrine of negligence per se will not apply. In the case of the speeding car, if the Defendant was speeding because he was rushing to the hospital to save a dying passenger in the vehicle, his conduct may be excused, and negligence per se will not apply. However, if there was no excuse for his speeding, the Plaintiff may be able to prove negligence per se and avail herself of the doctrine to prove that the Defendant owed her a duty of care to drive at the speed limit, and he breached that duty of care by recklessly driving over the speed limit.

Here’s the twist: Just because a Plaintiff can prove negligence per se does not mean that the Plaintiff automatically wins her negligence case. Rather, she must also still prove causation and damages. For example, if the accident was caused because the Plaintiff swerved to avoid a hazard in the road and not because the Defendant was speeding, then the Defendant will not be liable for negligence because the Plaintiff cannot prove both actual and proximate cause.

Intentional Trespass

What happens if someone is mistaken with regard to her property line and accidentally builds on her neighbors property? Would she have to pay damages or tear down whatever she had built? Assume for a moment that two neighbors built houses and garages on their adjacent lots. Assume as well that Neighbor A’s garage encroached onto neighbor B’s property by a few feet and A was unaware of the encroachment. The question becomes whether B can sue A for Trespass.

The tort of Trespass to Land requires intentional entry onto the land of another. The intent is shown here because A intentionally built a garage on the land. It didn’t just magically appear. Mistake is not a defense to trespass, so it does not matter that A did not know that he was building on land that didn’t belong to him.

In common sense terms, assume a farmer owns a large farm and a developer comes along and buys the property behind the farmer to build town homes. Now assume that the developer misreads the lot description and accidentally puts one of those town homes on the farmer’s property. Would it be fair for the builder to be able to simply say “Well. I made a mistake, so I shouldn’t have to pay for any damages or tear down the home.” This obviously would not be acceptable. The
fact of the matter is that the builder built a town home on the farmer’s property and the farmer should be compensated for any damage caused. The farmer may not end up making the builder tear down the town home, but now since the farmer’s farm is smaller, she will not be able to sell it for as much money, so she could sue the builder for the value of the land he encroached upon.

Swanson v. Tackling: A Georgia Dog Bite Case

Swanson v. Tackling: A Georgia Dog Bite Case

In a recent Georgia case, a seven year old boy was bit on the head by one of Defendant’s Great Dane dogs while he was visiting their home. He suffered serious and disfiguring injuries as a result. His mom filed a personal injury suit against the dog’s owners.

When the boy and his parents arrived at the home, they were introduced to the dogs who were behind a gate in another room. One of the dogs put her head over the gate barked in the young boy’s face. This made the mother nervous and she requested that the dog be kept away from her son, although she did not share this information with the owners. The next day, the young boy asked if he could give one of the dogs a stuffed toy. In an attempt to get the toy, the dog bit the boy’s arm. The boy began to scream and cry and when he bent his head down, the dog bit him. the dog’s owner testified that “prior to this incident, the dog had never bit, chased, jumped on, or even growled at anyone.”

The trial court ruled in favor of the dog owners on the grounds that there was no issue of material fact for a jury to consider because the dog had never displayed any vicious behavior or evinced a propensity to bite anyone prior to biting the boy. The appellate court agreed and ruled in favor of the dog owners.

In a dog bite case, Georgia law allows a plaintiff to recover based on a dangerous animal liability theory or a premises liability theory. However, in order to succeed, the plaintiff must show evidence that the dog had a vicious propensity in order to prove that the owner had superior knowledge of the danger. In order to infer this knowledge, there “must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” Although the dog owner doesn’t have to be aware of the dog’s propensity to act in exactly the same way that causes the injury at issue, that previous incident must be the same type as the incident at issue. Finally, it is well settled under Georgia law that “a dog’s menacing behavior alone does not demonstrate its vicious propensity or place its owner on notice of such propensity.”

As mentioned, Georgia courts allow recovery under a dangerous animal liability theory or a premises liability theory. Also, if a person voluntarily undertakes to restrain a dog and fails to do so and an injury results, the owner can be held liable. In this case, there was no evidence that the mom asked the Defendants to restrain the dog or that they promised to do so. Therefore, while the Court was sympathetic with regard to the boy’s injuries, it had to rule in favor of the dog owners.

2016 WL 718465

Injuries Caused by a Mentally Impared Person

If a victim is injured by someone who is mentally impaired in Georgia, can that victim recover damages for her personal injuries?

The general rule in Georgia is that a psychotic person cannot be held criminally responsible for his crimes because he is not acting as a free agent and is incapable of a guilty intent. However, in a civil case, if the mentally impaired person cases personal injury to another, proof of intent is generally not necessary. Therefore,  the mentally impaired person is liable for torts the same as anyone else,  except for torts that require proof of intent.

This rule allows a victim to sue the mentally impaired person for personal injuries caused by negligence. This rule is supported by the principal that where a loss must be borne by one of two innocent persons, it should be borne by the one who occasioned it.

Of course, there is the occasional odd circumstance where the “insanity is not a defense in tort cases except for intentional torts” rule seems to be a little too broad. For example, if a driver is suddenly overcome, without forewarning, by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances, the insanity defense may apply.  In one case, Breunig v American Family Ins. Co. (1970) 45 Wis 2d 536, 173 NW2d 619, 49 ALR3d 179, a victim that suffered personal injuries suffered in an automobile accident. The Defendant suffered a mental delusion while she was driving, as she saw a white light on the back of a car ahead and was under the impression that God was holding the steering wheel and directing her car when the accident occurred. The court held that it was a jury question with regard to whether the driver had knowledge of her schizophrenic, paranoid condition and of likelihood of hallucination while driving.

Proving Negligence Actions in Georgia: Unreasonable Conduct

Proving Negligence Actions in Georgia: Unreasonable Conduct

When a person has been injured in an accident, she may be able to recover damages for her injuries if she can prove that the accident was caused by the negligence of another. In other words, if someone acted unreasonably and caused injury as a result, that person may be liable.

Proving negligence isn’t always easy. A plaintiff must show that 1) Defendant owed her a duty of care, 2) Defendant breached that duty of care, 3) the Defendant’s breach caused the plaintiff to be injured, and 4) Plaintiff suffered damages as a result.

In general, we all owe a duty of reasonable care to those around us. In other words, we should drive safely, look where we are going, and just exercise general common sense so that we don’t cause anyone else to be hurt by our actions. It is when we act unreasonably that we can get into trouble! If a plaintiff can prove unreasonable conduct, she can prove that Defendant breached his duty of reasonable care, which is often the hardest thing to prove in a negligence case. After all, reasonable minds may differ as to what is considered reasonable.

Luckily, courts have a method to help determine when Defendant’s conduct amounts to unreasonable conduct. It is called the “Learned Hand Test.” It is called this because it was first used by a judge named Learned Hand. It basically says that if the probability and gravity of harm outweigh the burden of protecting against the harm, the Defendant has acted unreasonably in failing to protect against the harm.

Think of it this way: Defendant has a swimming pool in her back yard. There is no fence around the pool or her yard and her neighborhood has lots of children in it. One of the neighborhood kids falls in the pool and drowns. The question becomes whether Defendant has breached her duty of care owed to that child by not installing a fence. When we apply the learned Hand Test, we first ask about the probability of harm. In this case, the probability of harm is high. There are lots of children in the neighborhood. Children are attracted to swimming pools. The probability of a child falling in and getting injured is very high.

Next, we look at the gravity of harm. If a child falls in a pool, he could drown. Therefore, the gravity of harm is great as the result could be death.

Finally, we look at the burden to protect against the harm and measure that against the probability and gravity of the harm. The cost of putting up a fence is very low compared to the risk of a child falling into the pool and drowning. Therefore, Defendant acted unreasonably by not putting up a fence and breached her duty of care to that child.

Of course, Plaintiff will also have to prove causation, which leaves us a topic for further discussion!

Products Liability Cases in Georgia

Products Liability Cases in Georgia

If a consumer is injured while using a defective product in Georgia, she may be able to recover for her personal injuries. There are several theories under which she may be able to win.


The first theory of recovery to consider when someone is injured by a product is negligence. To prove negligence, the customer must show that the manufacturer or retailer owed her a duty of care, that they breached that duty, and that the breach caused the injury.

A manufacturer must use reasonable care when designing and manufacturing its product. It is not required to anticipate unusual possibilities or make a completely safe product. It is also not required to ensure the product’s safety. It will not be liable if it designs and manufactures the product with due regard for the circumstances and purpose for which the product will be used.

The manufacturer’s failure to warn is generally the most frequently encountered in negligence cases. That does not mean it must warn of any and all possible dangers, no matter how remote. Rather, a manufacturer must warn against dangers that are foreseeable.

The failure of the manufacturer to warn of foreseeable dangers or to use due care in the design or manufacture of its product is a breach of their duty of care. If a consumer is then injured as a result of that failure, the manufacturer will be liable for damages.

Strict Products Liability

Strict products liability is another theory upon which an injured consumer can recover. Georgia Statute section 51-1-11 imposes liability upon the manufacturer of a defective new product regardless of the amount of care exercised by the manufacturer. Courts will hold a manufacturer liable if the product “was not merchantable and reasonably suited to the use intended,” or if the product is defective at the time it leaves the manufacturer’s hands.

A product defect exists when the product has not been properly designed, manufactured, packaged, or accompanied by adequate warnings. Whether a product is defective must be considered in the overall context of the design, function, and intended use. The danger must not be obvious and liability does not extend to unforeseeable misuse or abnormal use of the product. Georgia courts have also found strict liability in cases where there was no adequate warning.

Express and Implied Warranty

Consumers injured by a product in Georgia may also be able to recover under theories of breach of either express or implied warranties, or both. If the seller makes a statement of fact about the quality character or title to goods at the time of sale, it can be considered an express warranty. Statements of opinion are not susceptible to factual proof and are therefore not considered express warranties. Implied warranties, including the implied warranty of fitness for a particular purpose and an implied warranty of merchantability accompany the sale of goods by law.

Georgia Slip and Fall Cases

Georgia Slip and Fall Cases

If an individual slips and falls in a store, the store may be liable for any personal injury suffered. This is commonly known as a slip and fall case. However, in Georgia, store owners are not required to insure the safety of their customers. Therefore, just because an individual can prove the occurrence of a fall in the store, that does not automatically mean that the customer will prevail in her slip and fall case against the store.

In Georgia, the business owner must exercise diligence towards making the promises safe in a way that a good business person would. Therefore, a person who wishes to recover for personal injuries caused by a slip and fall in a commercial establishment must show three things: (1) that the business had knowledge or constructive knowledge of the hazard or condition, (2) that the customer acted reasonably to ensure her own safety in light of the knowledge she had with regard to the hazard or condition, and (3) that the business’ failure to make the store safe was the cause of the customer’s slip and fall.

In essence, businesses make an implied promise to their customers that the store has been made ready and safe for their customers’ arrival. For the purpose of proving knowledge, the main issue hinges on the relative degree of knowledge possessed by each of the parties with regard to the danger. If the business has superior knowledge about a hazard or condition that might subject a customer to an unreasonable risk of harm and fails to protect against it, the business will be liable for the personal injuries of the customer.

The presence of a spill or rainwater in a store is one of the most typical circumstances that can lead to slips and falls. Georgia courts have found that it is common knowledge that some water will be present where shoppers pass into the store during rainy weather. Generally, a wet floor sign and periodic mopping at the store entrance is considered advisable and can help protect business owners from liability for slips and falls. However, the mere presence of a sign or equal knowledge with regard to weather conditions will not automatically bar recovery. For example, recovery was not automatically barred when a movie theater placed a “wet floor” sign over a spill and a customer, who was in a crowd of people, tripped over the sign as she exited the theater after the crowd had knocked the sign over.

With regard to the fault of the customer, under the current rule in Georgia, a customer is not required to look continuously and without interruption for defects. This is true whether the hazard is open and obvious or where the customer had some generalized knowledge of the hazard that was inferior to the store owner. The customer, however, can be expected to give some explanation of why she was not looking where she was going.

Georgia Nuisance Claims

Georgia Nuisance Claims

A nuisance occurs when someone uses their property in a way that interferes with the use and enjoyment of the property of others. A nuisance can be caused by many bothersome activities, including noise and noxious smells, or by more serious activities, such as the contamination of waterways and air pollution.

A nuisance can either be public or private. A private nuisance is a substantial and unreasonable interference with the use and enjoyment of land while a public nuisance is an interference with a common right to the general public. Think of all of the problems that have been caused by the contaminated water source in Flint, Michigan recently. The residents of Flint have a common right to clean drinking water. Therefore, the contamination is certainly a public nuisance as many residents are affected by the contaminated drinking water.

Private Individuals can sue and get damages for personal injuries suffered as a result of a private nuisance. For example, if a person misdirects water onto the property of her neighbor, the neighbor can sue for damages. However, if the nuisance is considered a public nuisance, a private individual cannot bring suit. Rather, only public officials or public agencies may bring these types of nuisance actions. For example, if a person lives near a landfill that is burning garbage and it is releasing noxious odors, a public official must bring a claim against the landfill on behalf of the community. After all, we all have a common right to clean air.

However, there are some cases where a private individual can bring a claim for a public nuisance. In these cases, the private individual must show a “special injury” that is not suffered by other members of the public. This “special injury” may occur where the interference with the public right also impairs the use and enjoyment of a private interest in land or where a member of the public suffers an injury which differs markedly from the injuries of the public generally. For example, if the nuisance is the contamination of water in Flint, Michigan, and all residents have a common right to clean drinking water, it would be difficult for a private individual to recover in court unless she could prove a special injury as a result of the contamination that others did not generally suffer. If the private individual could prove that she suffered a particular illness as a result of the contamination that others did not also suffer, she would have a claim and could sue in a nuisance action.

Courts can and do differ with regard to how they interpret what constitutes a “special injury.” Therefore, attorneys representing clients in public nuisance actions must carefully how they can differentiate their clients’ injuries from injuries suffered by the public generally.

1 State Environmental L. § 3:1 (2016)