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What is assumption of risk and does it apply to your case?

March 9, 2020

A common defense raised by defendants in personal injury cases is that the plaintiff assumed the risk of his or her injuries and, therefore, should not be allowed to recover damages.  If proven, this affirmative defense is an absolute bar to the plaintiff’s ability to recover damages.  This makes it critical to fully understand the case law surrounding this defense.

Assumption of the risk will bar a plaintiff’s claim only when the defendant can show the plaintiff, “without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.”  Johnson St. Props., 302 Ga. at 57 (citing Muldovan v. McEachern, 271 Ga. 805, 807-08 (1999)).  To prove this affirmative defense, the defendant must establish the plaintiff “(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks.”  Id. (emphasis added).

In other words, “assumption of the risk means the plaintiff is fully aware of the dangerous defect or condition caused by defendant’s negligence but freely chooses to proceed nonetheless.”  Benefield v. Pep Boys-Manny, Moe & Jack, Inc., 291 Ga. App. 79, 81 (2008) (emphasis in original) (quoting Hillman v. Carlton Co., 240 Ga. App. 432, 435 (1999)).  Put simply, assumption of the risk means the plaintiff, “in advance, has given her consent to relieve the defendant of an obligation of conduct toward her, and to take her chances of injury from a known risk arising from what the defendant is to do or leave undone.”  Desai v. Silver Dollar City, 229 Ga. App. 160, 165 (1997).  See also Baker v. Harcon, Inc., 303 Ga. App. 749, 754 (2010). 

 Georgia case law further requires that the plaintiff have specific knowledge of the risk that they voluntarily assumed.  “Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on plaintiff’s part.”  Hillman, 240 Ga. App. at 434 (emphasis in original).  “The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities.”  Id.   Instead, the plaintiff must be aware of a specific, dangerous defect created by a defendant’s negligence.  Id. (noting the plaintiff must be “fully and completely aware of the dangerous or defective conditions he is encountering”); see also Benefield, 291 Ga. App. at 81.

Additionally, the Georgia appellate courts appear to be more likely to find the plaintiff assumed the risk of injury when it is the plaintiff who created the dangerous condition.  See Garner v. Rite Aid of Ga., Inc., 265 Ga. App. 737, 742 (2004) (plaintiffs’ seventeen-year-old son decided to purchase and purposefully inhale butane gas that led to his death); Fuller, 340 Ga. App. at 639 (the plaintiff bobcat operator “deliberately chose” to have the dump truck he was loading parked on top of a three to four-foot slope, and that decision led to one of the rocks tumbling out of the bobcat and causing his injuries); Sones v. Real Estate Dev. Grp., Inc., 270 Ga. App. 507, 509 (2004) (the plaintiff and his co-workers operated a forklift with a makeshift platform that had no sides, no guard rail, no safety line, and the plaintiff “voluntarily chose to be lifted high above the ground on a forklift not designed as a work platform”); Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 99 (1983) (plaintiff tile worker deliberately used flammable mineral spirits and gasoline to remove adhesive from the floor where he was working, which was in close proximity to a gas oven that ignited and injured the plaintiff).

In contrast, recent appellate cases suggest a defendant may not permitted to second-guess a plaintiff’s response a dangerous condition the defendant created.  For example, in Dixie Grp., Inc. v. Shaw Indus. Grp., the plaintiff was fatally injured while performing maintenance on a machine in the manufacturing facility where he worked.  303 Ga. App. 459, 459 (2010).  One of the defendants moved for summary judgment, arguing the worker assumed the risk of his injuries for performing maintenance on a machine without locking it out as he had been trained and instructed to do.  Id. at 464.  In affirming the trial court’s denial of the defendant’s motion for summary judgment, the Court of Appeals found that, given evidence the design on the machine made it impossible to repair while the machine was locked out, the question of whether the plaintiff exposed himself to the risk and how much free choice the plaintiff had must be resolved by a factfinder.  Id. at 466. 

Next, in McCray v. FedEx Ground Package Sys., the plaintiff was injured when he stepped into a gap between the back of a parked trailer and a loading dock at the warehouse where he worked.  291 Ga. App. 317, 317 (2008).  The plaintiff was a warehouse manager for a flower company, and his job duties included inspecting trailers to make sure they were safe for loading and unloading.  Id. at 318.  A delivery truck improperly parked its trailer at the warehouse’s loading dock at an angle so there was a gap of around eight inches between the rubber bumper on the dock and the trailer.  Id.  The plaintiff was loading boxes into the trailer, and there was a lamp that would have illuminated the dark area and a dock plate that could bridge the gap between the trailer and the dock.  Id.  However, the plaintiff used neither and fell into the gap, causing injuries to his leg.  Id. at 318-19. The trial court granted summary judgment to the defendant based on assumption of the risk, but the Court of Appeals reversed.  The Court of Appeals held that even though the plaintiff was responsible for safety in the warehouse, his violation of the company inspection policy was not determinative of his culpability.  Id. at 321-22.  Instead, the Court concluded a jury must decide whether the plaintiff exercised ordinary care for his own safety.  Id. at 322.   

Finally, in Benefield, the plaintiff electrical worker was injured when his arm was pulled through the rollers of a conveyor system. Benefield, 291 Ga. App. at 79.  The plaintiff was performing electrical work next to an operating conveyor belt.  Id. at 80.  A piece of a light fixture fell onto the conveyor, and when the plaintiff reached for the piece, his glove became stuck and his arm was pulled through two rollers.  Id.  Unbeknownst to the plaintiff, a metal plate that would have covered the rollers had been improperly removed by the defendant.  Id.  The plaintiff acknowledged he knew, before the day he was injured, a person could be caught in the mechanical parts of a moving conveyor belt and injured.  Id. at 5.  The trial court granted summary judgment to the defendant based on assumption of the risk.  On appeal, the Court of Appeals reversed, finding the plaintiff did not have actual and subjective knowledge of the danger in attempting to remove the piece of the light fixture from the conveyor.  Id. at 4-5.  The Court reasoned that the plaintiff’s generalized knowledge that conveyors are dangerous was not sufficient, as a matter of law, to show the Plaintiff was aware of the specific risk presented by the machinery and rollers exposed after the defendant negligently removed the metal plate.  Id.   

Contact a personal injury attorney at Nicholson Revell LLP today to discuss your case. 

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