2021 Georgia Code
Title 51 - Torts
Chapter 11 - Defenses to Tort Actions
Article 1 - General Provisions
§ 51-11-7. Effect of Plaintiff's Failure to Avoid Consequences of Defendant's Negligence

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.

(Orig. Code 1863, § 2914; Code 1868, § 2921; Code 1873, § 2972; Code 1882, § 2972; Civil Code 1895, § 3830; Civil Code 1910, § 4426; Code 1933, § 105-603.)

- Effect of contributory negligence of railroad employee on liability of employer for injury or death of employee, § 34-7-42.

- For article, "Comparative Negligence in Georgia," see 8 Ga. B. J. 51 (1945). For article discussing defenses to action for wrongful death in Georgia, see 22 Ga. B. J. 459 (1960). For article discussing products liability and plaintiff's fault under the Uniform Comparative Fault Act, see 29 Mercer L. Rev. 373 (1978). For article discussing plaintiff conduct and the emerging doctrine of comparative causation of torts, see 29 Mercer L. Rev. 403 (1978). For article, " 'Pure' vs. 'Modified' Comparative Fault: Notes on the Debate," see 34 Emory L.J. 65 (1985). For article, "Reappraising the Jury's Role as Finder of Fact," see 20 Ga. L. Rev. 123 (1985). For article, "Products Liability Law in Georgia Including Recent Developments," see 43 Mercer L. Rev. 27 (1991). For article, "Sexual Harassment Claims Under Georgia Law," see 6 Ga. St. B. J. 16 (2000). For note discussing last clear chance doctrine in Georgia, see 13 Ga. B. J. 104 (1950). For note, "Plaintiff's Last Clear Chance and Comparative Negligence in Georgia," see 6 Ga. St. B. J. 47 (1969). For comment criticizing weaknesses in Georgia comparative negligence doctrine, in light of Jones v. Yuma Motor Freight Term., 45 Cal. App. 2d 497, 114 P.2d 438 (1941), see 4 Ga. B. J. 68 (1941). For comment criticizing Thomas v. Shaw, 217 Ga. 688, 124 S.E.2d 396 (1962), as to assumption of risk on a golf course, see 14 Mercer L. Rev. 295 (1962). For comment on Waulker Hauling Co. v. Johnson, 110 Ga. App. 620, 139 S.E.2d 496 (1964) and the doctrine of rescue, see 16 Mercer L. Rev. 363 (1964). For comment discussing comparative negligence and the retention of the last clear chance doctrine, see 1 Ga. St. B. J. 501 (1965). For comment discussing Bentzler v. Braun, 34 Wis. 2d 362, 149 N.W.2d 626 (1967), as to plaintiff's failure to use a seat belt as constituting contributory or comparative negligence in automobile injury cases, see 2 Ga. L. Rev. 110 (1967). For comment discussing Brown v. Kendrick, 192 So. 2d 49 (Fla. 1966), and suggesting contributory negligence ramifications of failure of guest passengers to use seatbelts in Georgia, see 18 Mercer L. Rev. 511 (1967). For comment discussing Georgia's comparative negligence laws in light of Maki v. Frelk, 85 Ill. App. 2d 439, 229 N.E.2d 284 (1967), see 19 Mercer L. Rev. 486 (1968). For comment on Stukes v. Trowell, 119 Ga. App. 651, 168 S.E.2d 616 (1969), as to jury question of assumption of risk by a guest in an automobile the driver of which has been drinking, see 22 Mercer L. Rev. 487 (1971). For comment discussing Georgia law as to a defendant's right to bring in any party responsible to him for damages sought by the plaintiff, and comparing the approach of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972), see 24 Mercer L. Rev. 697 (1973). For comment, "Treatment of Guest Passengers: Georgia Maintains Its Minority Rule," see 31 Mercer L. Rev. 1061 (1980). For comment, "Proposed Solutions to an 'Obvious' Problem in Georgia Products Liability Law," see 35 Mercer L. Rev. 915 (1984).

ANALYSIS

• General Consideration
• Applicability to Specific Cases

RESEARCH REFERENCES

Am. Jur. 2d.

- 57B Am. Jur. 2d, Negligence, §§ 797 et seq., 823 et seq., 940.

- 65 C.J.S., Negligence, § 253 et seq.

- Failure to stop, look, and listen at railroad crossing as negligence per se, 1 A.L.R. 203; 2 A.L.R. 767; 41 A.L.R. 405.

High-heeled shoes or character of apparel, as affecting contributory negligence of woman, 2 A.L.R. 1049.

Crossing street elsewhere than at regular crossing as contributory negligence precluding recovery for injury from defect or obstruction, 3 A.L.R. 1113.

Contributory negligence of one injured by striking object temporarily deposited in street, 9 A.L.R. 479.

Duty of pedestrian before crossing street to look for vehicles approaching on intersecting street, 9 A.L.R. 1248; 44 A.L.R. 1299.

Contributory negligence in falling on slippery walk, 13 A.L.R. 73.

Contributory negligence in disregarding or failing to await complete operation of safety gates or other safety appliance at crossing or draw, 13 A.L.R. 942.

Driving automobile across track in front of street car that has stopped to take on or let off passengers as negligence or contributory negligence, 14 A.L.R. 811.

Personal care required of one riding in automobile driven by another as affecting his right to recover against third person, 22 A.L.R. 1294; 41 A.L.R. 767; 47 A.L.R. 293; 63 A.L.R. 1432; 90 A.L.R. 984.

Contributory negligence of elevator passenger permitting part of body to project beyond car, 23 A.L.R. 45.

Contributory negligence or assumption of risk in disobeying rules or directions of master under counter directions by superior, 23 A.L.R. 315.

Contributory negligence of custodian of child as affecting right of parent to recover for its death or injury, 23 A.L.R. 655.

Failure to extinguish fire on adjoining property as contributory negligence precluding recovery for damage by fire spreading to plaintiff's property, 27 A.L.R. 285.

Contributory negligence in stepping into roadway where view is obscured by smoke, 28 A.L.R. 1279.

Civil liability growing out of mutual combat, 30 A.L.R. 199; 47 A.L.R. 1092.

Intoxication as affecting contributory negligence of one killed or injured at a railroad crossing, 36 A.L.R. 336.

Contributory negligence as defense to an action for death on waters within jurisdiction of admiralty, 50 A.L.R. 455.

Contributory negligence of passenger in standing near door of car, 50 A.L.R. 1365.

Reliance on dealer's or manufacturer's assurance that article is not dangerous as affecting question of contributory negligence, 55 A.L.R. 1047.

What amounts to gross or wanton negligence in driving an automobile precluding the defense of contributory negligence, 72 A.L.R. 1357; 92 A.L.R. 1367; 119 A.L.R. 654.

Assumption of risk of overstrain consequent upon failure of other employee to lift his share, 74 A.L.R. 157.

Excessive speed of automobile as affecting question whether excavation or other defect in highway is the proximate cause of accident, 82 A.L.R. 294.

Civil rights and liabilities as affected by failure to comply with regulations as to registration of automobile or motorcycle or licensing of operator, 87 A.L.R. 1469; 111 A.L.R. 1258; 163 A.L.R. 1375.

Applicability of state statutes and rules of law as affecting construction and application of provisions of Federal Employers' Liability Act relating to contributory negligence, assumption of risk, and comparative negligence, 89 A.L.R. 693.

Doctrine of last clear chance, 92 A.L.R. 47; 119 A.L.R. 1041, 171 A.L.R. 365.

Construction and effect of comparative negligence rule where there are more than one defendant, or where negligence of nonparties contributes to the injury, 92 A.L.R. 691.

Contributory negligence of pedestrian at street crossing as affected by statute or ordinance, 96 A.L.R. 786.

Pleading want of contributory negligence as waiver of right to presumption of freedom from negligence, 96 A.L.R. 1116.

Sufficiency of instruction on contributory negligence as respects the element of proximate cause, 102 A.L.R. 411.

Liability for injury to pedestrian who suddenly darts or steps into path of automobile, 113 A.L.R. 528.

Admissibility on issue of negligence or contributory negligence of statements warning one of danger, 125 A.L.R. 645.

Conclusiveness, as to negligence or contributory negligence, of judgment in death action, in subsequent action between defendant in the death action and statutory beneficiary of that action, as affected by objection of lack of identity of parties, 125 A.L.R. 908.

Assumption of risk or contributory negligence in riding in defective automobile, 138 A.L.R. 838.

Liability for injury to pedestrian due to condition of street or highway as affected by his blindness or other physical disability, 141 A.L.R. 721.

Statute abolishing or modifying contributory negligence rule in certain class of cases or situations, as denial of equal protection of the laws, 142 A.L.R. 631.

Contributory negligence as defense to action based on violation of statute or ordinance as to condition of premises of seller of intoxicating liquor, 144 A.L.R. 827.

Failure to look for or discover automobile approaching on wrong side of road as negligence or contributory negligence, 145 A.L.R. 536.

Statute which places burden of proof as to contributory negligence on defendant or creates a presumption against contributory negligence as applicable to actions by one person consequential damages resulting from injury to another, 147 A.L.R. 726.

Liability for injury to spectator at indoor athletic game or contest due to hazard incident thereto, 149 A.L.R. 1174.

What conduct on part of railroad, in connection with crossing accident, amounts to wantonness, wilfullness, or the like, precluding defense of contributory negligence, 151 A.L.R. 9

Negligence and contributory negligence in respect of delivery of petroleum products, 151 A.L.R. 1261.

Contributory negligence of one attempting to cross in front of an observed approaching train, as affected by increase of its speed, 154 A.L.R. 512.

Failure of guest to leave automobile because of host's misconduct or negligence as contributory negligence or assumption of risk constituting defense to automobile guest's action again owner or driver, 154 A.L.R. 924.

Passenger's protrusion of part of body beyond, or his riding outside, body of motorbus as contributory negligence, 157 A.L.R. 1212.

Liability for death of, or injury to, one seeking to rescue another, 158 A.L.R. 189.

Entering dark place on unfamiliar premises as contributory negligence, 163 A.L.R. 587.

Negligence of automobile passenger as to lookout or other precaution as affecting question of negligence or contributory negligence of driver, 165 A.L.R. 596.

Contributory negligence as defense to cause of action based upon violation of statute, 171 A.L.R. 894; 10 A.L.R.2d 853.

Custom or practice of drivers of motor vehicles as affecting question of negligence, 172 A.L.R. 1141; 77 A.L.R.2d 1327.

Contributory negligence as defense to action by state, United States, municipality, or other governmental unit, 1 A.L.R.2d 827.

Liability for injury to or death of participant in game or contest, 7 A.L.R.2d 704.

Contributory negligence of driver of motor vehicle as imputable to owner under statute making owner responsible for negligence of driver, 11 A.L.R.2d 143.

Failure to obtain occupational or business license or permit as defense to tort action, 13 A.L.R.2d 157.

Defenses of fellow servant and assumption of risk in actions involving injury or death of member of airplane crew, ground crew, or mechanic, 13 A.L.R.2d 1137.

Guest's knowledge that automobile driver has been drinking as precluding recovery, under guest statutes or equivalent common-law rule, 15 A.L.R.2d 1165.

Failure of occupants of motor vehicle stalled on railroad crossing to get out and move to place of safety as contributory negligence, 21 A.L.R.2d 742.

Pleading last clear chance doctrine, 25 A.L.R.2d 254.

Intoxication of person injured or killed as affecting applicability of last clear chance doctrine, 26 A.L.R.2d 308.

Sudden or unsignaled stop or slowing of motor vehicle as negligence, 29 A.L.R.2d 5.

Contributory negligence of physically handicapped or intoxicated person in boarding or alighting from standing train or car, 30 A.L.R.2d 334.

Attempt to board moving car or train as contributory negligence or assumption of risk, 31 A.L.R.2d 931.

Availability of last clear chance doctrine to defendant, 32 A.L.R.2d 543.

Adult's intentional bodily contact with electrified wire as contributory negligence, 34 A.L.R.2d 98.

Contributory negligence of one stepping or falling into shaft of nonautomatic elevator, 34 A.L.R.2d 1336.

Extension of hand, arm, or other portion of body from motor vehicle as contributory negligence, 40 A.L.R.2d 233.

Liability of one negligently causing fire for personal injuries sustained in attempt to control fire or to save life or property, 42 A.L.R.2d 494.

Overcrowding motor vehicle or riding in unusual position thereon as affecting liability for injury or damage, 44 A.L.R.2d 238.

Duty and liability of municipality as regards barriers for protection of adult pedestrians who may unintentionally deviate from street or highway into marginal or external hazards, 44 A.L.R.2d 633.

Contributory negligence, assumption of risk, or related defenses as available in action based on automobile guest statute or similar common law rule, 44 A.L.R.2d 1342.

Contributory negligence or assumption of risk as defense in action against physician or surgeon for malpractice, 50 A.L.R.2d 1043.

Contributory negligence or assumption of risk of passenger leaving seat before conveyance stops, 52 A.L.R.2d 585.

Contributory negligence of one jumping from moving motor vehicle, 52 A.L.R.2d 1433.

Contributory negligence of one standing in highway to attempt to warn approaching motorists of dangerous situation, 53 A.L.R.2d 1002.

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury, 58 A.L.R.2d 1232.

Liability as between participants for accident arising from private automobile or other vehicle racing on public street or highway, 59 A.L.R.2d 481.

Contributory negligence of adult struck by train while walking or standing beside railroad track, 63 A.L.R.2d 1226.

Duty and standard of care, with respect to contributory negligence, of person with physical handicap, such as impaired vision or hearing, approaching railroad crossing, 65 A.L.R.2d 703.

Contributory negligence, assumption of risk, or intentional provocation as defense to action for injury by dog, 66 A.L.R.2d 916.

Intoxication, unconsciousness, or mental incompetency of person as affecting his status as guest within automobile guest statute or similar common-law rule, 66 A.L.R.2d 1319.

Application of last clear chance doctrine to cases involving collision between train and motor vehicle at railroad crossing, 70 A.L.R.2d 9.

Contributory negligence or assumption of risk as defense to action for damages from nuisance - modern views, 73 A.L.R.2d 1378.

Momentary forgetfulness of danger as contributory negligence, 74 A.L.R.2d 950.

Interference with airplane pilot or controls as negligence or contributory negligence, 75 A.L.R.2d 858.

Instructions on sudden emergency in motor vehicle cases, 80 A.L.R.2d 5.

Contributory negligence, in motor vehicle accident case, of pedestrian under physical disability, 83 A.L.R.2d 769.

Contributory negligence, assumption of risk, or the like, on part of passenger or guest in motor vehicle engaging in racing or similar contests, 84 A.L.R.2d 448.

Liability of owner, lessee, or operator for injury or death on or near loop-o-plane, ferris wheel, miniature car, or similar rides, 86 A.L.R.2d 350.

Liability for injury or death of child in refrigerator, 86 A.L.R.2d 709.

Payee's prior negligence facilitating forging of indorsement as precluding recovery from banking paying check, 87 A.L.R.2d 638.

Propriety and prejudicial effect of instructions referring to the degree or percentage of contributory negligence necessary to bar recovery, 87 A.L.R.2d 1391.

Liability of pedestrian to another pedestrian injured as result of collision between them on sidewalk, 88 A.L.R.2d 1143.

Contributory negligence of mentally incompetent or mentally or emotionally disturbed person, 91 A.L.R.2d 392.

Last clear chance in actions by motor vehicle passenger against host-driver, 95 A.L.R.2d 617.

Liability of owner or operator of automobile for injury to one assisting in extricating or starting his stalled or ditched car, 3 A.L.R.3d 780.

Contributory negligence or assumption of risk as defense to action for personal injury, death, or property damage resulting from alleged breach of implied warranty, 4 A.L.R.3d 501.

Rescue doctrine: negligence and contributory negligence in suit by rescuer against rescued person, 4 A.L.R.3d 558.

Comparative negligence rule where misconduct of three or more persons is involved, 8 A.L.R.3d 722.

Applicability of last clear chance doctrine to collisions between motor vehicles crossing at intersection, 20 A.L.R.3d 124.

Applicability of last clear chance doctrine to intersectional collision between motor vehicles meeting from opposite directions, 20 A.L.R.3d 287.

Contributory negligence of spouse or child as bar to recovery of collateral damages suffered by other spouse or parent, 21 A.L.R.3d 469.

Premises liability: proceeding in the dark as contributory negligence, 22 A.L.R.3d 286.

Premises liability: proceeding in the dark along outside path or walkway as contributory negligence, 22 A.L.R.3d 599.

Premises liability: proceeding in the dark on outside steps or stairs as contributory negligence, 23 A.L.R.3d 365.

Premises liability: proceeding in the dark across exterior premises as contributory negligence, 23 A.L.R.3d 441.

Premises liability: proceeding in the dark along inside hall or passageway as contributory negligence, 24 A.L.R.3d 388.

Premises liability: proceeding in the dark on inside steps or stairs as contributory negligence, 25 A.L.R.3d 446.

Contributory negligence or assumption of risk of one injured by firearm or air gun discharged by another, 25 A.L.R.3d 518.

Third person's participating in or encouraging drinking as barring him from recovering under civil damage or similar acts, 26 A.L.R.3d 1112.

Liability of motorist colliding with person engaged about stalled or disabled vehicle on or near highway, 27 A.L.R.3d 12.

Premises liability: proceeding in the dark across interior premises as contributory negligence, 28 A.L.R.3d 605.

Admissibility of evidence of habit, customary behavior, or reputation as to care of pedestrian on question of his care at time of collision with motor vehicle giving rise to his injury or death, 28 A.L.R.3d 1293.

The doctrine of comparative negligence and its relation to the doctrine of contributory negligence, 32 A.L.R.3d 463.

Applicability of last clear chance doctrine to collision between moving and stalled, parked, or standing motor vehicle, 34 A.L.R.3d 570.

Modern status of the rule absolving a possessor of land of liability to those coming thereon for harm caused by dangerous physical conditions of which the injured party knew and realized the risk, 35 A.L.R.3d 230.

Pilot's contributory negligence or assumption of risk as defense in action for his injuries or death resulting from airplane accident, 35 A.L.R.3d 614.

Tort liability of public schools and institutions of higher learning for accident occurring during school athletic events, 35 A.L.R.3d 725.

Tort liability of public schools and institutions of higher learning for accidents associated with chemistry experiments, shopwork, and manual or vocational training, 35 A.L.R.3d 758.

Right of action for injury to or death of woman who consented to illegal abortion, 36 A.L.R.3d 630.

Tort liability of public schools and institutions of higher learning for accidents occurring during use of premises and equipment for other than school purposes, 37 A.L.R.3d 712.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence, 37 A.L.R.3d 1438.

Contributory negligence as defense to action for injury or damage caused by accidental starting up of parked motor vehicle, 43 A.L.R.3d 930.

Products liability: contributory negligence or assumption or risk as defense under doctrine of strict liability in tort, 46 A.L.R.3d 240.

Anti-hitchhiking laws; construction and effect in action for injury to hitchhiker, 46 A.L.R.3d 964.

Imputation of servant's or agent's contributory negligence to master or principal, 53 A.L.R.3d 664.

Imputation of contributory negligence of servant or agent to master or principal, in action by master or principal against another servant or agent for negligence in connection with his duties, 57 A.L.R.3d 1226.

Liability or recovery in automobile negligence action as affected by absence on insufficiency of lights on parked or standing motor vehicle, 61 A.L.R.3d 13.

Permitting child to walk to school unattended as contributory negligence of parents in action for injury to or death of child, 62 A.L.R.3d 541.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without front lights, or with improper front lights, 62 A.L.R.3d 560.

Liability or recovery of automobile negligence action arising out of collision or upset as affected by operation of vehicle without or with improper taillights or rear reflectors, 62 A.L.R.3d 771.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without, or with improper, clearance, load, or similar auxiliary lights, 62 A.L.R.3d 844.

Contributory negligence allegedly contributing to cause of injury as defense in Civil Damage Act proceeding, 64 A.L.R.3d 849.

Liability for injury or death of participant in theatrical performance or spectacle, 67 A.L.R.3d 451.

Modern development of comparative negligence doctrine having applicability to negligence actions generally, 78 A.L.R.3d 339.

Judicial adoption of comparative negligence doctrine as applicable retrospectively, 78 A.L.R.3d 421.

Liability of swimming facility operator for injury to or death of diver allegedly resulting from hazardous condition in water, 85 A.L.R.3d 750.

Choice of law as to application of comparative negligence doctrine, 86 A.L.R.3d 1206.

Liability to spectator at baseball game who is hit by ball or injured as a result of other hazards of game, 91 A.L.R.3d 24.

Automobile occupant's failure to use seat belt as contributory negligence, 92 A.L.R.3d 9.

Nonuse of seatbelt as reducing amount of damages recoverable, 95 A.L.R.3d 239, 62 A.L.R.5th 537.

Medical malpractice: patient's failure to return, as directed, for examination or treatment as contributory negligence, 100 A.L.R.3d 723.

Motor vehicle passenger's contributory negligence or assumption of risk where accident resulted from driver's drowsiness, physical defect, or illness, 1 A.L.R.4th 556.

Evidence of automobile passenger's blood-alcohol level as admissible in support of defense that passenger was contributorily negligent or assumed risk of automobile accident, 5 A.L.R.4th 1194.

Applicability of comparative negligence doctrine to actions based on strict liability in tort, 9 A.L.R.4th 633.

Effect of adoption of comparative negligence rules on assumption of risk, 16 A.L.R.4th 700.

Modern trends as to contributory negligence of children, 32 A.L.R.4th 56.

Patient's failure to reveal medical history to physician as contributory negligence or assumption of risk in defense of malpractice action, 33 A.L.R.4th 790.

Liability to one struck by golf ball, 53 A.L.R.4th 282.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning electrical generation and transmission equipment, 55 A.L.R.4th 1010.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning lawnmowers, 55 A.L.R.4th 1062.

Liability for injury incurred in operation of power golf cart, 66 A.L.R.4th 622.

Comparative fault: calculation of net recovery by applying percentage of plaintiff's fault before or after subtracting amount of settlement by less than all joint tort-feasors, 71 A.L.R.4th 1108.

Products liability: contributory negligence or assumption of risk as defense in negligence action based on failure to provide safety device for product causing injury, 75 A.L.R.4th 443.

Products liability: contributory negligence or assumption of risk as defense in action for strict liability or breach of warranty based on failure to provide safety device for product causing injury, 75 A.L.R.4th 538.

Rescue doctrine: applicability and application of comparative negligence principles, 75 A.L.R.4th 875.

Liability of proprietor of private gymnasium, reducing salon, or similar health club for injury to patron, 79 A.L.R.4th 127.

Comparative negligence: judgment allocating fault in action against less than all potential defendants as precluding subsequent action against parties not sued in original action, 4 A.L.R.5th 753.

Sufficiency of evidence to raise last clear chance doctrine in case of automobile collision with pedestrian or bicyclist - modern cases, 9 A.L.R.5th 826.

Modern status of sudden emergency doctrine, 10 A.L.R.5th 680.

Intentional provocation, contributory or comparative negligence, or assumption of risk as defense to action for injury by dog, 11 A.L.R.5th 127.

Applicability of comparative negligence principles to intentional torts, 18 A.L.R.5th 525.

Liability for injury to customer or patron from amusement device maintained by store or shopping center for use of customers, 40 A.L.R.5th 807.

Failure to use or misuse of automobile child safety seat or restraint system as affecting recovery for personal injury or death, 46 A.L.R.5th 557.

Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim, 69 A.L.R.5th 625.

Comparative negligence, contributory negligence, and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow, 83 A.L.R.5th 589.

Liability to spectator at baseball game who is hit by ball or injured as result of other hazards of game - failure to provide or maintain sufficient screening, 82 A.L.R.6th 417.