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Georgia Workers’ Compensation Blog, April 2016
Nathan E. Woody, CORALES & WOODY, LLC

AN INTRODUCTION TO AFFIRMATIVE DEFENSES

An “affirmative defense” in injury law is raised when a Defendant agrees that the Plaintiff suffered some accident or event which resulted in injuries and damages, but nevertheless believes they should not be held responsible for those damages. Before the creation of workers’ compensation, an employee suing his employer would be subject to three affirmative defenses: contributory negligence, assumption of the risk and negligence by a fellow servant.

However, as we have discussed previously in this blog, workers’ compensation was created as a no-fault system. Thus, generally speaking, an employee’s contributory negligence (for example, being clumsy) is no longer a defense which an employer can raise to avoid or reduce their liability. Moreover, the employer cannot argue that the employee working on a power line assumed the risk of that dangerous trade and should thus bear his own expenses when he is electrocuted. Finally, even if a fellow employee is texting and drives a forklift into another employee, the employer cannot escape liability for the injuries by pointing to the at-fault operator.

WILLFUL MISCONDUCT

As it stands, the affirmative defenses which exist in workers’ compensation are fairly limited, and all fall under the umbrella of willful or intentional misconduct (bad acts) by the employee who is injured. Here are the affirmative defenses:

• Intoxication
• Willful Misrepresentation of a Physical Condition (aka, the “Rycroft Defense”)
• Failure to Perform a Duty Required by Statute (such as failure to avoid the speed limit)
• Fighting
• Horseplay
• Willful Failure or Refusal to Use Safety Device (such as a hard hat or steel toe boots)
• Suicide

Each of these defenses warrants their own blog for a complete understanding of the issues, but generally speaking, there are a few common considerations with any willful misconduct defense:

• The Employer bears the burden of proving there was a willful act. Negligence is not enough.
• Proximate cause. It is not enough that the Employee was engaged in some foolhardy behavior around the time of the
accident. The willful behavior must have been the cause of the resulting injuries.
• These defenses are narrowly tailored. Practically speaking, that means they often fail on one element or another.
However, you can bet that if an affirmative defense is available to an Employer/Insurer, more often than not, they
will at least raise it. This means you will need a lawyer if any of these defenses could apply to your accident.