susancc said:
What is the name of your state? Georgia
My car was just repaired under an insurance claim. Work included work on the passenger door and the handle. My daughter picked up the car from the garage. She had a passenger in the front seat who rolled down the window just as they rounded a left curve. When the window rolled down, the door unlocked and flew open. Police verified and documented the abnormality with the door which was obviously not repaired properly. The passenger fell out of the car (he was not wearing a seatbelt). The passenger was injured. Can he successfully sue me, my insurance, or the garage? If my insurance pays, will this go against the driving record and can they raise my rates? No one was ticketed. My daughter has had one accident (her fault) and then this last claim (she hit a deer). I am afraid if my insurance has to pay they will cancel us or make us drop my child from the policy.
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My response:
Georgia has adopted a variation of comparative negligence. Ga. Code Ann. § 51-11-7 (1982). Under this doctrine, a claimant's action is barred if he could have avoided the consequences of the defendant's negligence. Otherwise, the claimant's recovery is diminished in proportion to his degree of negligence. Id.
In this case, your daughter's friend - the claimant - could have avoided her injuries if she was wearing her seatbelt and, thus, in my opinion, "contributed" to her own injuries, and would be barred from recovering damages.
Editorial: I think the Georgia law is too narrow and restrictive to claimants. Georgia's negligence law is a "mix" of "comparative" and "contributory" negligence; i.e., if a claimant "contributes" any percentage to the cause of damages, the claimant is "estopped" from claiming damages. This, I believe is unfair.
California, on the other hand, is a pure "comparative negligence" State (see Li vs. Yellow Cab Company) which allows a claimant, even though a "cause" of their own injuries, to obtain compensation, decreased only by the "percentage" of the claimant's own fault. In negligence cases, a claimant's eventual recovery, if any, will be reduced to the extent it is proved that claimant's own fault contributed to his or her injuries. [Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858; Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380]
The total damages proved cannot be recovered to the extent plaintiff's own negligence contributed to the injuries. Rather, awardable damages must be proportionately reduced to reflect the percentage of plaintiff's "fault." [Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 828-829]
So, in our writer's fact pattern, and if the accident had occurred in California, the passenger would have still been able to obtain a recovery for her injuries - - but would have had any recovery decreased by her own percentage of fault - - because by not wearing a seatbelt, she was a factor in "contributing" to her injuries suffered. But, at least, she wouldn't be completely barred from any recovery.
A jury looks at such a case using the "but for" test. "But for" the repair shop's shoddy workmanship, would the door have opened in the first place? "But for" the claimant not wearing a seatbelt, and if the door did open, would the claimant have fallen out and suffered the injuries?
In California, a jury would probably assess liability, for example, as follows:
A. Judgment to claimant for $100,000.00
B. Liability percentage assessed to the shop of 20%.
C. Liability percentage assessed to the claimant of 80%.
Net judgment to the claimant to be paid by the shop in the sum of $20,000.00.
In our writer's State, and fact pattern, it will be doubtful that the shop will have any liability, and the claimant will be assessed 100% of the fault - - and not receive one penny from the shop.
IAAL
