Determining Liability After a Car Wreck in Georgia: Exercising Due Care OCGA 40-6-93


Last week in our ongoing blog series on Georgia’s rules of the road, we talked about statute 40-6-92, which lays out the rules for pedestrians crossing roads without the use of crosswalks. In that post, as in several others, we mentioned the responsibility that drivers have to exercise due care at all times on the road. Today, we’ll discuss due care in more detail as we go over statute 40-6-93.

Remember, the rules of the road are important for determining civil liability after an accident, because of a concept called negligence per se.

Negligence per se is the idea that anyone who causes any kind of damage as a result of breaking a safety rule is automatically liable for those damages. This is in contrast to situations where no rules are broken, and the court must decide if the defendant’s actions match what a “reasonable person” would do in their position.

So, without further ado, let’s have a look at how negligence per se applies to statute 40-6-93 and a driver’s responsibility to exercise due care in the presence of pedestrians.


What Qualifies as Due Care?

While driving on public roads, “due care” simply means remaining aware of your surroundings and in control of your vehicle, and doing the best you can to avoid all accidents, regardless of what irresponsible things other people may be doing around you.


We’ve mentioned the importance of due care quite often before, because lots of other rules can be misinterpreted to mean that a driver is completely in the clear as long as someone else’s mistake contributed to an accident. On the contrary, the duty to exercise due care is always in effect, no matter what other rules are being broken.


Due care applies to multi-vehicle accidents as well, but statute 40-6-93 specifically concerns a driver’s responsibility to avoid hitting pedestrians when at all possible.


Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding his horn when necessary, and shall exercise proper precautions upon observing any child or any obviously confused, incapacitated, or intoxicated person.


As you can see, drivers are expected to be particularly cautious in the presence of pedestrians who may not be capable of understanding and following the rules that apply to them, whether it’s because of age, mental illness, or even substance use.


Use of the Horn

Statute 40-6-93 also mentions the use of a vehicle’s horn as a warning. This does not mean, of course, that honking at pedestrians gives a driver the right to run them over if they don’t clear the way.


Legally, under statute 40-8-70, horns are only supposed to be used when reasonably necessary for safety. For example, if you’re not sure whether you’re going to be able to avoid hitting a pedestrian, slamming on the horn as well as the brakes might save the pedestrian’s life by calling their attention to the situation, allowing both of you to combine your efforts to minimize the damage. An aware pedestrian might be able to jump out of the vehicle’s way, or onto its hood, when an oblivious pedestrian would have ended up under the wheels.


However, the driver is still obligated to do everything possible to prevent the collision (short of causing an even worse collision), and honking the horn in no way lessens that obligation.


Are Drivers Always at Fault?

It might sound as if drivers are always wrong and pedestrians are always right in the eyes of the law, but even when you account for statute 40-6-93, that isn’t true at all. Vehicles do have more destructive power than pedestrians, which is why driving carries an extra layer of responsibility. However, statute 40-6-93 only requires drivers to avoid hitting pedestrians whenever possible. The law recognizes that there are extreme scenarios in which it may not be possible.


Additionally, a driver’s duty to exercise due care does not erase a pedestrian’s duty to follow the rules. If a driver unnecessarily hits a pedestrian who was illegally in the driver’s way, both the driver and the pedestrian will typically be liable under negligence per se. In such a case, the driver and pedestrian would share financial responsibility for the damages, based on percentages of fault to be determined in court.


What Damages Can You Recover If a Driver Fails to Exercise Due Care?

If you’ve been hit by a car, and you believe the driver could have done more to prevent the accident, you may be eligible for compensation even if you did not have the right of way. Your chances for a settlement, and the size of that settlement, will depend on the exact circumstances of the accident and the percentages of fault. Any compensation you are eligible to receive will be divided into special damages and general damages.


Special Damages Are for Financial Losses

After surviving an accident as a pedestrian, your biggest financial losses will usually be medical expenses and lost wages. If your injuries heal quickly and you’re able to return to regular work after a short absence, those losses are fairly easy to tally up. If, on the other hand, your medical needs and ability to work will be affected in a lasting way, you’ll need a settlement that accounts for estimated future losses as well. The Wetherington Law Firm can help you organize the documentation you’ll need, detailing both the extent of your special damages and how those damages were directly or proximately caused by the driver’s lack of care. To learn more about how we do this, click here.


General Damages Are for Emotional Losses

If being hit by a car made you unable to spend time with your loved ones as you normally would, reduced your sense of independence and confidence, left you with symptoms of psychological trauma, or even just prevented you from attending an event you were looking forward to, that’s a loss that can never be perfectly reimbursed with money. Nevertheless, a settlement for emotional damages is the best way the law has of acknowledging these damages. The value of emotional losses is highly subjective, but the Wetherington Law Firm will make sure the full extent of your pain and loss is recognized and compensated as thoroughly as possible.


What If I’ve Lost Someone Who Was Hit by a Car?

If you’re looking for representation after the death of a family member, then your case will be one of wrongful death rather than personal injury. The Wetherington Law Firm can help you pursue justice for your lost loved one, but these cases have special rules you’ll need to be aware of. To learn more about wrongful death, click here.


Why Do I Need a Lawyer?

After being hit by a car, if the driver was at fault, you’re likely to be offered a payout from the driver’s insurance company. This is a tactic insurance companies use when they know they’re liable, in order to minimize their losses. It can be very tempting to take the money, especially when you’re missing work and overwhelmed by unexpected bills, but these lowball payouts will almost always run out quickly and leave you still struggling to cover your ongoing expenses. Once you’re accepted a payment, no matter how unfair, it becomes much harder to collect the true compensation you need. It can also be tempting to go to court without representation, expecting justice to win the day if you simply tell the truth as you know it. Unfortunately, this is also a bad idea. If paying you off cheaply doesn’t work, the insurance company’s next move will be to discredit and blame you. You’ll be going up against professionals in the field of trick questions, deflection, and confusing the issue. Having an expert of your own who knows how to respond correctly to these techniques can make all the difference between getting your life back on track or coming away with nothing but debt.


How to Hire the Best Car Wreck Lawyers in Atlanta

When you work with the Wetherington Law Firm, you’ll never, ever end up worse off than you started. We work solely on a contingency basis, which means we only get paid when and if we win.


We know how intimidating insurance companies and other wealthy corporations can be, and we’re here to level the playing field and make sure everyone can afford to have their case fairly heard.


To get started with a free, no-obligation consultation on the details of your own unique case, just give us a call at 404-888-4444, or reach out through the email contact form on the right.


If You Want to Change the World, the Wetherington Law Firm Is the Firm for You

If all you’re looking for is a fair payment to cover your pain and expenses, there’s nothing whatsoever wrong with that. However, many of our clients are looking for something more. They come to us because they’re concerned that what happened to them is happening to others, and they want to do something about it. We welcome every opportunity to use our expertise to help as many people as possible, in addition to our own clients. If the driver who hit you was an overtired delivery worker, for example, we’ll look into their company’s policies and push for safer work schedules. If you were hit while trying to cross a dark road, we’ll look into the need for better public lighting. To learn more about how we’ve helped our clients make the world a better place, give us a call any time.