Georgia’s modified comparative negligence rule under O.C.G.A. § 51-12-33 reduces a plaintiff’s recovery by the plaintiff’s percentage of fault and bars recovery entirely when the plaintiff was 50% or more at fault. The rule applies to product liability cases, though its application differs depending on whether the underlying theory is strict liability or negligence and on the specific defenses raised.
| Before <em>Johns v. Suzuki</em> (2020) | After <em>Johns v. Suzuki</em> (2020) | |
|---|---|---|
| Apportionment in strict liability | Generally not applied (contributory/comparative negligence not a defense) | Applies fully; jury allocates fault to plaintiff |
| Plaintiff conduct effect | Limited to assumption of risk and product misuse | Plaintiff fault apportioned and reduces recovery |
| 50% bar | Did not formally apply to strict liability | Applies; plaintiff at 50%+ recovers nothing |
| Doctrinal basis | Common-law rule rejecting comparative negligence in strict liability | § 51-12-33 displaces the prior common-law rule |
Modified comparative negligence is the Georgia default #
Under O.C.G.A. § 51-12-33:
- The jury allocates fault among all responsible parties as percentages
- The plaintiff’s recovery is reduced by the plaintiff’s percentage of fault
- If the plaintiff’s fault is 50% or more, recovery is barred entirely
This is the standard rule that applies to most tort cases in Georgia, including negligence-based product liability claims. The 50% threshold is the dividing line: 49% fault permits recovery (reduced by 49%); 50% fault bars recovery completely.
Johns v. Suzuki settled apportionment for strict products liability claims #
Whether comparative negligence applies to strict liability claims under O.C.G.A. § 51-1-11 was settled by the Supreme Court of Georgia in Johns v. Suzuki Motor of America, Inc., 310 Ga. 159 (2020). The Court held that O.C.G.A. § 51-12-33’s apportionment provisions apply to strict products liability claims, displacing the prior common-law rule that contributory or comparative negligence was not a defense to strict liability. After Johns, juries can apportion fault to plaintiffs in strict products liability cases, and recovery is reduced accordingly.
In Johns itself, the jury awarded $12.5 million on the plaintiff’s strict liability and negligence claims arising from a motorcycle brake failure, but apportioned 49% of fault to the plaintiff (who had not changed the brake fluid for eight years contrary to the owner’s manual). The trial court reduced the award accordingly, and the Supreme Court of Georgia affirmed.
The decision also clarifies that doctrines like assumption of risk and product misuse remain available as defenses, alongside the broader fault-allocation framework now applicable to strict products liability.
Misuse defense bars recovery when use was unforeseeable #
A manufacturer’s strict liability under O.C.G.A. § 51-1-11(b)(1) applies when the product is used “by any natural person as intended.” When the plaintiff used the product in a manner the manufacturer could not reasonably have foreseen, the strict liability theory may fail entirely because an element of the claim (foreseeable use) is missing.
The misuse defense is not exactly a comparative negligence reduction; it is a defense to an element of the strict liability claim. If the plaintiff’s use was unforeseen, the manufacturer is not liable, regardless of the percentages of fault that might otherwise be allocated.
The line between unforeseeable misuse (which bars liability) and foreseeable but careless use (which might support comparative fault reduction) is fact-specific and often contested. Standing on a chair as a step ladder might be foreseeable misuse; using a hair dryer in a bathtub might be unforeseen misuse, depending on warnings and product design.
Assumption of risk can bar or reduce strict liability recovery #
When the plaintiff knew of the specific risk that caused the injury and proceeded to use the product anyway with subjective appreciation of the danger, assumption of risk may apply. Georgia has historically treated assumption of risk as a defense distinct from comparative negligence, though the modern application often involves overlapping analyses.
The defense requires:
- Subjective knowledge of the specific danger
- Appreciation of the magnitude of the risk
- Voluntary acceptance of the risk
It applies most clearly in cases where the plaintiff was warned of a specific danger, understood it, and chose to proceed anyway.
Open and obvious dangers can affect both negligence and strict liability #
In Smith v. Garden Way, Inc., 821 F. Supp. 1486 (N.D. Ga. 1993), the court held that the absence of a deadman control on a rototiller’s forward gear was an open and obvious feature, which barred liability under strict liability, negligence, and inadequate warning theories.
Subsequent Georgia cases have refined this doctrine, often treating obviousness as a factor in the risk-utility analysis (in design defect cases) and in the duty-to-warn analysis (in warning cases) rather than as a freestanding defense. The obviousness of a danger informs whether the manufacturer’s design was reasonable and whether warnings would have changed the outcome.
Apportionment under § 51-12-33 includes nonparties #
A 2005 amendment to O.C.G.A. § 51-12-33 introduced apportionment among “all persons or entities who contributed to the alleged injury or damages,” including persons or entities who are not parties to the lawsuit. This affects product liability cases in several ways:
- Plaintiff’s employer (typically immune under workers’ compensation) can have fault apportioned to it
- Other contributors to the injury (negligent maintenance providers, intervening tortfeasors) can be allocated fault
- The non-party fault percentage reduces the share of named defendants
A plaintiff who was 20% at fault, with a non-party employer at 30% fault and the manufacturer at 50% fault, recovers 50% of damages from the manufacturer. The employer is not paying (it is immune under workers’ compensation), but its fault is allocated.
The doctrine’s interaction with worker injuries is complex #
Product liability cases arising from workplace injuries often involve workers’ compensation, third-party product liability, and the apportionment statute together:
- Workers’ compensation provides benefits against the employer
- The third-party product liability claim provides additional recovery against the manufacturer
- Apportionment may allocate fault to the employer as a nonparty, reducing the third-party recovery
- The workers’ compensation carrier holds a lien against the third-party recovery for benefits paid
The structural interaction can substantially reduce net recovery to the injured worker, particularly when employer fault was significant.
Defendant strategy in product liability cases often emphasizes plaintiff conduct #
Defendants in product liability cases frequently develop substantial evidence of plaintiff fault to support comparative negligence and related defenses:
- Plaintiff’s prior use of similar products and resulting knowledge of risks
- Plaintiff’s compliance or non-compliance with product instructions
- Plaintiff’s modifications to the product
- Plaintiff’s intoxication or impairment at the time of injury
- Plaintiff’s training and qualifications for product use
This evidence supports defendants’ efforts to push fault allocation across the 50% line or, short of that, to reduce the share allocated to the defendant.
This article is for informational purposes only and does not constitute legal advice. Personal injury cases turn on specific facts and applicable law that vary by case. If you have been injured in Georgia and want to understand your legal options, consult a licensed Georgia personal injury attorney.