Articles Posted in Assumption of Risk

examination-bed-1442884-300x201Assumption of risk is among the most commonly invoked defenses in negligence cases. Given that the defense has existed as long as the common law and is so frequently raised by defendants in negligence cases, courts have been forced to address the contours of the defense’s applicability for hundreds of years.  In a recent decision, Watson v. Reg’l First Care, Inc., the Georgia Court of Appeals added another chapter to its assumption of risk jurisprudence by addressing whether a patient assumed the risk of injury when he chose to sit on an examination table at a local medical clinic.

The plaintiff in Watson was a patient at the defendant medical clinic, where he was receiving treatment for bronchitis. Following a visit to the clinic on April 16, the plaintiff had a coughing episode that caused him to black out and hit his head on a nightstand in his home. On May 2, the plaintiff returned to the medical clinic for further bronchitis treatment. Following his arrival at the clinic, the plaintiff was taken to an examination room by a medical assistant. The medical assistant instructed the plaintiff to sit on an examination table, measured his blood pressure, and left to find a physician. While he was having his blood pressure measured, the plaintiff told the medical assistant that he had fainted as a result of coughing spells on two prior occasions. While waiting for the doctor to arrive, the plaintiff had another coughing fit that caused him to black out and fall to the floor.

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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.
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