Assumption of the Risk Defense
Assumption of the risk is a defense that can be raised in any case where there is evidence that the Plaintiff (the victim) had knowledge of the danger that hurt them. It shows up in cases where the victim has a reason to know that where they are or what they are doing is risky. The idea generally is, if you knew it was dangerous and you still participated, you should not be able to sue when the risk is what hurt you.
To beat the case, the Defense needs to show:
- the plaintiff actually knew about the specific danger,
- due to age or sobriety understood the risks,
- voluntarily exposed themselves to the danger.
Liles v. Innerwork, Inc., 279 Ga. App. 352 (2006).
The rule was made into law in O.C.G.A. § 51-11-7. “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases, the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.”
Assumption of the risk will get a case thrown out even where the Defendant acted recklessly and was negligent to a gross degree.
Landings Association, Inc. v. Williams, 309 Ga App. 321 (June 18, 2012).
83 year old woman house sitting at a fancy neighborhood on on a golf course knew about alligators in the area and assumed the risk of injury walking in the back yard. Remember the issue is whether the defendant had any duty to the Plaintiff. Here the Supreme Court focused on equal knowledge.
White v. Georgia Power Co., 265 Ga. App. 664 (2004) In this case a 9 and 12 year old boy went swimming in the Oconee River downstream from a power plant and drowned. The Court held “the danger of drowning in a body of water is an apparent, open danger, the knowledge of which is common to all."
Generally speaking, the danger of fire, water and heights are known to all ages and these cases are often thrown out by the Court even though the legal standard is "plain and palpable." "The fear of water and of drowning is instinctively present in young children as a matter of law." McCall v. McCallie, 48 Ga. App. 99, 171 S.E. 843 (1933)
Child Assumes the Risk of Being Burned
In Taylor et al. v. McGraw et al., 2014 WL 2766731 (Ga. App. A14A0453) (2014), a 13 year old was deemed to have assumed the risk of being burned when they stook to close to a campfire.
Assuming the Risk of a Dog Bite
We get a lot of calls from people where they were bitten while trying to separate their dog from an another dog attacking it. In most cases the Court will throw the case out. Consider what the Court did in Lundy v. Stuhr, 185 Ga. App. 72 (1987), where a kennel employee was deemed to have assumed the risk of a bite when they had been warned that a dog "will bite" and the employee still went into the cage and held their arm out as the dog approached.
Assuming the Risk of Getting in a Car with a Drunk Driver
We have handled a number of cases where the passenger is injured in a crash and their driver is drunk. The devil is in the details in these cases but it boils down to this; can the defense show that the passenger knew the driver was impaired or not? If they can show that because they were going drink for drink at the bar, it is a problematic case. Although a judge won't throw the case out, there is a good chance that the jury is going to. If there is evidence that the driver was somewhere else or unknown to the victim, then a jury is more likely to make a fair award for the injury as well as return a punitive damages verdict.