Fountain v. Thompson

In Fountain v. Thompson, 252 Ga. 256 (312 SE2d 788) (1984) our Supreme Court addressed the issue of whether the negligence of a drunken pedestrian, who was struck and killed while lying prone in the street, barred recovery where there was also an issue of the driver's negligence. The court concluded that even though the decedent may have been negligent originally in falling on the highway in a drunken state, his negligence did not bar recovery because the driver's negligence was greater as there was nothing obstructing the driver's sight. In so doing, the court examined OCGA 40-6-93, determining that it established that "motorists on the highways must exercise ordinary care to discover and avoid persons in the roadway." The court also expressly held that a person lying prone in the highway in a drunken condition "is owed a duty of care where he is lying in the open on a flat road, even though undiscovered." It follows from Fountain that if a driver has a duty to avoid a person lying prone in the middle of the street, a duty also inures to one standing in the middle of the street under the circumstances in the instant case.