All successful claims for damages are based on solid evidence. However, in many cases, there are significant legal issues that can directly affect the amount of compensation that the victim receives.
By way of introduction, the plaintiff must establish negligence by a preponderance of the evidence, which means “more likely than not.” Picture two equally-sized stacks of paper sitting side by side. If one sheet of paper is added to the stack on the left, that stack is larger than the one on the right. In a negligence case, assume that Patty Plaintiff swears that she had the green light, and Debbie Defendant does likewise. The jury may choose to believe Patty over Debbie for any number of reasons, even something seemingly trivial as the tone of voice, and very few appellate courts will second-guess the jury in these situations.
Because of the low standard of proof and deference that many jury verdicts receive, it is sometimes difficult for insurance companies to reduce or deny compensation based on the facts themselves. So, the insurance company often tried to shift at least part of the blame to the victim.
Georgia is one of 33 modified comparative fault states that reduce recovery in proportion to the plaintiff’s fault. According to Georgia law, the jury must determine the percentage of legal fault in whole numbers. To return to the previous example, assume that the jury hears the evidence and determines that Patty’s damages were $100,000. Further assume the jury concludes that Patty was 40 percent responsible for the crash and Debbie was 60 percent responsible. In that case, Patty would receive $60,000 (60 percent of the total). But assume that the jury concludes the opposite and splits fault 60/40 between Patty and Debbie. In that case, Patty receives nothing, because Debbie was not at least 50 percent at fault.
If the same car crash occurred across the border in Alabama, Patty receives nothing in either outcome. In fact, Patty receives nothing even if the jury concludes that Debbie was 99 percent at fault, because in Alabama, any negligence on the part of the plaintiff defeats a claim for damages.
Negligence Per Se
Obeying traffic control signals is one of the “rules of the road” in Georgia. Drivers must also obey speed limits, drive on the proper side of the road, signal before turning or changing lanes, use their headlights at night, comply with vehicle inspection laws, and follow many other statutes. If the defendant violates a statute, the negligence per se (negligence “as such”) shortcut may be available.
Once again returning to the previous example, assume that the jury completely disregards Debbie’s testimony about who had the green light and concludes that she ran a red light. In Georgia, a statutory violation is sufficient to raise a presumption of negligence. So, Patty would not have to prove that Debbie breached the duty of reasonable care or proximately caused Patty’s injuries. In her defense, Debbie could argue that she did not intentionally run the red light or that even though she technically violated the statute, she did not act outside the realm of ordinary care (perhaps she ran the yellow light and it turned red a split second before she left the intersection or executed a California stop, which is a rolling right turn).
In addition to streamlining a case for compensatory damages, like lost wages and emotional distress, negligence per se increases the possibility of punitive damages. These additional damages are designed to punish the tortfeasor (negligent driver) and deter future wrongdoing. Essentially, the plaintiff must prove, by clear and convincing evidence, that the defendant acted with extreme recklessness or with utter disregard for the safety and property of others. Extreme statutory violations often fall into this category, such as intoxicated motorists that have very high BAC levels, such as .16 or above.
The Seat Belt Defense
Almost any legal violation can be the basis for a comparative fault or negligence per se claim. One of the most notable exceptions is the seat belt law. Like 48 other states, the Peach State has a mandatory seat belt law. So, some people are surprised that seat belt use is inadmissible in Georgia for damage reduction purposes. In other words, Debbie could not argue that Patty is to blame for the severity of her own injuries because she was not wearing her seat belt.
Upon closer examination, however, the rule makes sense, which is why most states have similar laws. For example, in a sexual assault case, the defendant usually cannot blame the victim for the incident by introducing evidence of prior sexual activity. More specifically to negligence cases, seat belt use is not admissible under a comparative fault analysis, because one has nothing to do with the other. Seat belt use is also inadmissible as mitigation (reduction) of damages, because the duty to
mitigate damages arises only after the plaintiff suffers injury.
Courts first started dealing with these issues in the 1970s, because seat belt use became mandatory in 1968, so the rules prohibiting the use of seat belt evidence are rather old. Last year, the Texas Supreme Court overturned that states’ seat belt law, calling it “an anachronism [that] is a vestige of a bygone legal system and an oddity in light of modern societal norms.” The case, Nabors Well Services v. Romero, may cause other states to question the seat belt defense, but that remains to be seen.
Partner with an Aggressive Attorney
For prompt assistance with a negligence claim, contact an experienced personal injury lawyer in Fayetteville from the Wade Law Offices, because you have a limited amount of time to act.