Tag: negligence

What is Negligence Per Se in Georgia?

Defintion of Negligence

Entire law school classes focus on negligence and its application, so this blog is a very general introduction to one of the negligence-related concepts called negligence per se.

Negligence is the failure to take proper care in doing something. The most common example is an automobile collision. No one intends to cause an automatable collision. But, if a driver isn’t paying attention and rear-ends another vehicle, such lack of care constitutes negligence.

Elements of Negligence

Four elements are required to establish negligence: (1) a legal duty that the defendant owed to the plaintiff, (2) a breach of that duty, (3) an injury, and (4) proof that the negligence caused the injury.

Negligence Per Se and Breach of Duty

So what is negligence per se? Under Georgia law, violating a statute, ordinance, or mandatory regulation may constitute negligence per se. To prove negligence per se, you must show a violation of a statute, that the harm complained of was the harm the statute was meant to protect against, that the person harmed fell into the class of persons the statute was intended to protect, and that the violation caused the injury. Gleaton & Associates, Inc., v. Cornelius, A22A1403 (February 8, 2023).

While not intuitive, negligence per se addresses the first element listed above: the legal duty owed. Lots of times, it isn’t clear whether someone has a duty to another person or what that duty consists of. With negligence per se, if a statute, ordinance, or regulation applies, violation of such a rule will satisfy the obligation to show a breach of a legal duty.

An Example of Negligence Per Se

In Gleaton, the case mentioned above, a tenant alleged the negligent filing of a dispossessory lawsuit against her. OCGA § 44-7-58 states that “[a]nyone who, under oath or affirmation, knowingly and willingly makes a false statement in an affidavit signed pursuant to Code Section 44-7-50 . . . shall be guilty of a misdemeanor.” The tenant alleged the landlord had violated that statute and was liable for negligence. Ultimately the court ruled for the landlord because it ruled the allegations in the dispossessory were not false.

Call Us!

Negligence per se is one of the many nuances in the law that we use to win cases for our clients. If you are injured or wronged by someone else, please call us at 404-382-9994 to discuss your legal options.  

What is assumption of the risk and why is it important in a negligence case?

Insurance companies and defendants use assumption of the risk, a legal doctrine, to try to deny injury claims. The doctrine holds that if a person is aware of a dangerous condition, they should not ignore the risk. The above sign is a clear cut example: if you walk on the rocks and are injured, you cannot blame the landowner.

Most would agree we should be responsible for the consequences of voluntarily participating in activities we know are risky. But what happens when a landowner puts up a sign on their property saying: “be careful where you step because we are not responsible for any injuries.” If you are injured on the property, can the owner rely on its warning?

In Georgia, assumption of risk applies when the person injured (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Daly v. Berryhill, S19G0499 (2020).

How is this decided? While each case has unique facts, a court will look at whether the evidence shows the person knew of the specific risk of harm associated with the activity that caused injury, yet proceeded anyway. If there is a warning sign, like the one above, you are going to lose. If there was a general warning or no warning, but using common sense might have disclosed the risk, then it is a closer question.

An example would be someone who goes skiing assumes the risk they will fall and break a bone. If this happens, they cannot sue the ski resort for such an injury. On the other hand, if the ski resort failed to properly maintain a path down the mountain, but had warned that the path might be dangerous, then successfully suing the ski resort depends on whether the skier was aware of the particular risk.

If you have an injury case that involves negligence and assumption of the risk, please call us so we can explain your options.