Discomfort ≠ Coercion: Bolstering the Assumption of the Risk Defense
By: Brianna Tucker
Where a defendant believes a plaintiff has knowingly and voluntarily engaged in risky activities to their own detriment, he may assert the affirmative defense of assumption of the risk to counter a plaintiff’s claims for damages incurred as a result of the risky behavior. Giddens v. Metropower, Inc., 366 Ga. App. 15, 17 (2022). A defendant bears the burden of proof of such a defense. Id. While the legal definition of assumption of the risk is when an actor, “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,” it is, more often than not, a “dingus” defense. Naval Store Suppliers, Inc., et. al. v. Croft, et. al.¸ 346 Ga. App. 773, 775, 816 S.E.2d 301, 303 (2018). Emphasis added. In other words, it is a defense available where a plaintiff knowingly makes a decision to undertake a dangerous activity contrary to his own safety. To succeed on an assumption of the risk defense, a defendant must establish that the plaintiff:
“(i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.” Downes v. Oglethorpe Univ., Inc., 342 Ga. App. 250, 253 (2017).
Given the specificity of knowledge required by a plaintiff, this defense is fact specific and can be difficult to assert. Defendants must avoid the pitfalls included in defenses outlined to mitigate assumption of the risk; specifically, coercion of circumstances and the “necessity rule,” an exception to assumption of the risk which has been carved out for landlord/tenant relationships.
Plaintiffs, for their part, may avoid summary judgment founded in an assumption of the risk defense by creating a fact question as to whether there was a “coercion of circumstances,” such that a plaintiff’s actions were not voluntary. Specifically, a plaintiff may argue he was forced by the circumstances, or otherwise had “no choice,” but to enter into a hazardous situation. Georgia courts have found questions of fact around coercion1 sufficient to overcome summary judgment in the following situations:
- Undertaking employment activities an individual knows to be dangerous after a direct order from a supervisor; York v. Winn Dixie Atlanta, Inc., 217 Ga. App. 839 (1995).
- Voluntarily crossing ice when the only alternative is to remain a “virtual prisoner,” in one’s own home; Hull v. Massachusetts Mutual Life Insurance Company, 142 Ga. App. 629 (1977).
Occasions that did not qualify as coercive include:
- Voluntarily walking across a wet floor in a nail salon because employees were “rushing” the customer; Smith v. NT Nails, LLC, 331 Ga. App. 98 (2015).
- Voluntarily crossing an icy parking lot where there was alleged to be no “viable alternative route,” despite being able to ask an employee to unlock a separate door; Naval Store Suppliers, Inc. v. Croft, 346 Ga. App. 773 (2018).
- “Following one’s conscience” and attempting to rescue a drowning individual where a nearby lifeguard did not undertake the duty of assisting the drowning person; Williams v. City of Tybee Island, 362 Ga. App. 775 (2022).
When analyzing a claim and considering the assumption of the risk defense, an assessment of any coercion (even theoretical) will be integral to properly advising a client on the availability of the affirmative defense. Moreover, when analyzing claims against an apartment complex or landlord, counsel must consider the “necessity rule,” which is a defense to assumption of the risk where an individual has no choice but to be a “virtual prisoner.” Carefully crafting interrogatories and deposition questions aimed at understanding what knowledge a plaintiff had as it relates to specific hazards will be critical to asserting the defense at the summary judgment stage, as will securing additional evidence (like camera footage or witness/police statements which may reinforce the knowledge portion of the inquiry).
1 Georgia case law finds that to coerce is “[t]o compel by force or threat.” Smith v. LT Nails, 331 Ga. App. 98 (2015) citing Black’s Law Dictionary (9th edition).
Attorney Contact Info
Brianna Tucker
brianna.tucker@swiftcurrie.com
404.888.6178
