Assumption of the risk is a legal doctrine under Georgia law. It’s used as a defense to tort claims like car accidents and slip and fall incidents. It states that the accident victim (or plaintiff) knew about the risks of harm and took that course of action anyway.
Georgia code addresses this defense to legal actions. It states: “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.”
How Does the Assumption of the Risk Defense Work?
When you know about risks of a specific activity, and you do it anyway, and you are injured—that could be a defense to a personal injury lawsuit. Imagine, for example, that you hurt yourself while climbing a rock wall at a local recreation center. You likely know before even starting that activity that there is a chance that you will fall and hurt yourself. But, you took on that risk when you started climbing. A defendant will try to say that you knew about the risk of falling and you did it anyway, which might bar your recovery in a legal claim against them.
The defendant is required to prove the assumption of the risk defense. That includes showing three things:
- The plaintiff had actual knowledge of the danger involved;
- The plaintiff fully appreciated and understood the risks associated with the threat (such as what could happen if the dangerous incident actually occurred); and
- The plaintiff voluntarily exposed themselves to those risks.
While this defense is broad, it doesn’t address situations where, for example, an employee was supposed to hold your rope to prevent falling, and they failed to do that. Every case is different, so you shouldn’t assume that your claim is precluded just because you took on a known risk. In some situations, this defense won’t apply at all, and in other cases, it will only slightly decrease the amount of money damages that you might be able to receive after an accident.
What Do the Assumption of the Risk Requirements Really Mean?
It is easy to spell out the requirements of this defense but interpreting them is a little tougher. For example; the following are important questions:
- How can someone show that you really understood the risk of engaging in a specific activity?
- When is participating in a course of action really “voluntary”?
- What things are considered “dangers”?
These questions must all be answered based on the very specific facts of your situation. While you can certainly state what you did and didn’t know about a particular activity, that may not be enough to combat this type of defense. Instead, what you say to others about the action or “common sense” may come into play.
For instance, if you tell a friend that you might break your leg if you jump off a building, and you do it anyway, that friend will likely testify saying that you understood the risk. A “reasonable person” standard may also come into play. If a reasonable person knows that you run the risk of being seriously injured if you jump off a building, that will likely be used as part of the defense.
Are There Any Exceptions to the Assumption of the Risk Doctrine?
There is a critical exception to the assumption of the risk defense under Georgia law. When you sign a waiver at a hospital or other healthcare facility, it will spell out some of the risks associated with the procedure. But, even though you are informed of those risks, Georgia law does not permit a professional to avoid their legal duties by contract. That means that there is no assumption of the risk defense in legal liability of professionals, such as in a medical malpractice lawsuit.
This exception does not extend to situations where you sign other waivers, such as in our rock wall example. If you signed a waiver that spelled out the dangers of climbing the wall, there’s a good chance that the assumption of the risk defense will apply, at least in part.
Even if you signed a waiver or knew about some of the risks of an activity, you should still talk to a personal injury lawyer about your options. The best way to determine whether a defense might apply is to work through it with the team at John Foy & Associates. Fill out the form to your right, or call us at 404-400-4000 to get your FREE consultation today.