Assumption of Risk “Assumption of risk” is an affirmative defense to the tort claim of negligence. Typically, it is raised by a defendant in an attempt to bar recovery by the plaintiff. The defendant bears the burden of proof for this defense. In an assumption of risk defense in Georgia, a defendant claims that the plaintiff assumed the known risks of a course of conduct, and thus constructively consented to the risks thereto, legally acquiescing to not hold the defendant liable, irrespective of any negligence on the part of defendant.

Georgia’s doctrine of assumption of risk is codified in the Official Code of Georgia Annotated Title 51, Chapter 11, Section 7 which provides: “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.” O.C.G.A. § 51-11-7. There are two types of assumption of risk, express and implied. This Georgia code section also includes the Georgia comparative negligence doctrine. However, the concepts of contributory (and comparative) negligence are not the same as the defense of assumption of risk. In fact, the two defenses are mutually exclusive.

There are three (3) essential elements to a successful assumption of risk defense in Georgia, as held in the Supreme Court of Georgia case of Vaughn v. Plesant, 471 S.E.2d 866 (Ga. 1996): “that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger, and (3) voluntarily exposed himself to those risks.” Vaughn 471 S.E.2d 868. The knowledge of the danger must be actual, specific, subjective, and the risk assumed by the plaintiff must be the specific risk voluntarily understood before the injury occurred. For example, if two cars are racing each other, it is likely that both drivers had actual knowledge of the potential danger from drag racing, such as a vehicle accident, property damage, pedestrian injury. Both drivers understood and appreciated the risks associated with such danger, and both drivers voluntarily accepted those risks, so an assumption of risk defense should be successful. If, however, a child follows his ball into a road and an adult chases after the child to get him to safety but the adult is hit by a car, the injured adult will not be barred from recovery because the emergency situation negated the “voluntary” element of the defense, thereby defeating its application.

There is one exception to a strict application of an express assumption of risk, in which a plaintiff explicitly agrees to the known risks for public policy reasons. If public policy mandates recovery, assumption of the risk by the plaintiff will not be successful. For example, if a patient signs an informed consent document assuming the risk of potentially negligent medical treatment, this contract would not bar recovery as Georgia law does not permit a professional, such as a doctor, to contractually avoid his standard of care. On the other hand, should a skier sign a form assuming the risk of negligently maintained slopes, the skier may be barred from recovery as the plaintiff acknowledged and agreed to the risks, and public policy is not sufficiently implicated to an extent to bar recovery.