When Does One “Voluntarily” Assume a Risk Under Georgia Law?

photo_21494_20120212-224x300Among the most common defenses in negligence litigation is assumption of risk. Assumption of risk was originally an affirmative defense that absolutely insulated a defendant from liability if it was shown that the plaintiff assumed the risk that resulted in injury. Today, however, assumption of risk has become part of the balancing courts and juries undertake when assessing comparative or contributory negligence. Georgia, which has a modified comparative negligence regime, bars recovery when it is shown that a plaintiff’s negligence contributed more than 50% to his or her resulting injuries. O.C.G.A. § 51-12-33(g). Given that recovery can either be barred or offset based on a plaintiff’s assumption of risk, defendants in negligence cases will often try to assert the theory’s applicability when confronted with allegations of negligence. For instance, the Georgia Court of Appeals recently ruled in Smith v. NT Nails, LLC. on whether a plaintiff who walked across a recently mopped floor had “assumed” the risk of falling.

The appeal in Smith followed the trial court’s grant of summary judgment in favor of the defendant. Looking at the evidence in a light favorable to the plaintiff, the record showed that on the night of her injury, the plaintiff went to the defendant nail salon for a manicure and a pedicure. The plaintiff was the last customer at the salon, and staff had begun cleaning and preparing the salon for closing. While the plaintiff was receiving her pedicure, an employee mopped the salon floor. When a technician finished the plaintiff’s pedicure, she gave the plaintiff a pair of rubber slippers to wear. The plaintiff stood up and walked across the wet floor to the register. After paying for the services, the plaintiff slipped on the floor, resulting in an accident. Following discovery, the trial court granted the defendant’s motion for summary judgment, finding that it was undisputed that the plaintiff assumed a known risk when she opted to navigate the wet floor.

Georgia law provides the following burden-shifting framework to be utilized in slip and fall cases:

“[First,] a plaintiff must come forward with evidence that . . . would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. [Then], the burden . . . shifts to the defendant to produce evidence that the plaintiff’s injury was caused by [the plaintiff’s] own voluntary negligence . . . or causal negligence . . . . If the defendant [does so], the burden . . . shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence . . . or tends to show that any such negligence resulted from the defendant’s [actions] or conditions under the defendant’s control.

Am. Multi-Cinema v. Brown, 285 Ga. 442, 444-45 (2) (2009) (emphasis added and citation omitted) . Here, the trial court found that the plaintiff knew or should have known the risk of falling associated with walking across a wet floor. See Robinson v. Kroger Co., 268 Ga. 735, 743 (1) (1997) (holding that voluntary negligence applies when a patron knew or should have known of the risk causing injury). Since the plaintiff was injured as a result of ignoring this risk, the trial court concluded that the defendant was entitled to summary judgment in its favor. On appeal, the plaintiff argued that the trial court erred because she had no choice but to walk across the wet floor and thus did not voluntarily assume the risk. The plaintiff pointed to her deposition testimony as evidence that the injury was really caused by the defendant’s action. During her deposition, the plaintiff testified that she was the last person in the salon and that the staff was cleaning and hurrying her out. She argued that this “coercion” forced her to undertake the risk.

The Court of Appeals concluded otherwise and affirmed the trial court’s grant of summary judgment. An assumption of the risk defense assumes that the plaintiff’s choice to undertake the action leading to the injury was deliberate and taken without coercion. See Bass Custom Landscapes v. Cunard, 258 Ga. App. 617, 619-620 (1) (2002). Although the plaintiff indicated that navigating the wet floor was a coerced act, the Court of Appeal found that the evidence of coercion was insufficient. The court reviewed several cases dealing with coercion and found that the evidence did not demonstrate that it was necessary for the plaintiff to immediately undertake the risk rather than waiting until the risk had subsided. Thus, there was no coercion sufficient to find that she had not voluntarily assumed the risk. However, one judge in the three-judge panel dissented, finding that this type of coercion was sufficient to create an issue of fact for a jury to determine at trial.

Assumption of risk is one of many types of defenses applicable to shield a possibly negligent party from liability. Indeed, even relatively straightforward cases of negligence often raise a variety of different procedural and merit-based defenses. Accordingly, anyone considering taking legal action to recover for another’s negligence should consider finding competent counsel with experience taking a case from complaint to judgment. The Atlanta premises liability attorneys at Christopher Simon Attorney at Law have represented many injured Georgians and are prepared to help you assess and possibly litigate your possible case. Feel free to contact us for a free case evaluation if you are interested in knowing more about our firm and the assistance we could provide.

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