Who has the burden of proving that the injured plaintiff was partly at fault?

· 3 min read

The party who wants to reduce or defeat a claim by pointing to the injured person’s own conduct generally carries the burden of proving it. Comparative fault operates as a defense, so the defendant who raises it must come forward with evidence that the plaintiff acted carelessly and that the carelessness helped cause the injury.

Two different burdens in the same case

A personal-injury trial involves more than one thing to prove, and the burdens are split:

  • The plaintiff must prove the defendant’s negligence and that it caused the harm. This is the plaintiff’s affirmative case.
  • The defendant must prove the plaintiff’s comparative fault if it wants the recovery reduced or barred under O.C.G.A. § 51-12-33.

Because the plaintiff’s negligence reduces or eliminates recovery rather than supporting the plaintiff’s own claim, it functions as the defendant’s point to establish. The standard is the same preponderance-of-the-evidence test that governs the rest of the civil case, meaning more likely than not.

What the defendant has to show

To put the plaintiff’s conduct in front of the jury for apportionment, the defense generally needs evidence on the familiar negligence elements as applied to the plaintiff: that the plaintiff failed to exercise ordinary care and that the failure was a cause of the injury. This is why defendants gather things like scene photographs, witness accounts, and records bearing on what the plaintiff was doing at the time. A bare suggestion that the plaintiff “must have” done something wrong is not enough; there has to be a basis in the evidence.

The interplay with non-party fault

The same logic extends to absent actors. When a defendant wants the jury to assign blame to a non-party, the defendant is the one who must give proper notice and produce evidence supporting that allocation. The plaintiff does not have to disprove fault that no one has supported with proof. If the defense fails to carry its burden on either the plaintiff’s share or a non-party’s share, the jury has no foundation to subtract anything on that basis.

The bottom line

In Georgia, the defendant ordinarily bears the burden of proving that the injured plaintiff was partly at fault, by a preponderance of the evidence, because comparative fault works to cut down the recovery. The plaintiff still must prove the defendant’s negligence, but the responsibility to establish the plaintiff’s own contribution, and any non-party’s, rests with the side trying to shift blame.

This article is for general educational and informational purposes only and is not legal advice. It does not create an attorney-client relationship, and Georgia law may change. For advice about a specific situation, consult a licensed Georgia personal injury attorney.

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