Hasner Law | Personal Injury | March 22, 2022
If you have suffered an injury caused by someone else’s negligence, you might have a valid personal injury claim. You may file your claim against the at-fault party who caused your injury. Alternatively, you may file your claim against a third party (the at-fault party’s employer, for example, under certain circumstances).
You can be certain that the defendant will assert any defense they believe they have against your claim. One such defense is called “assumption of the risk.” A successful defense can relieve the defendant of some or all liability for your damages.
How Do Affirmative Defenses Work?
Assumption of the risk is an affirmative defense, meaning that the defendant must initiate the defense and bear the burden of proof. The plaintiff (the person filing the claim – typically the injured victim) must first initiate a personal injury claim. In settlement negotiations or at trial, the defendant can bring up “assumption of the risk” as a defense against liability.
The plaintiff initiates the lawsuit by filing a summons and complaint with the court. The defendant asserts the defense by including it in their answer. The standard of proof for an affirmative defense is “a preponderance of the evidence,” a much lower standard than the “beyond a reasonable doubt” standard that applies to criminal prosecutions.
What Are the Elements of Assumption of the Risk?
The elements of a defense are facts that the defendant must prove to successfully defeat your claim.
The elements of a Georgia assumption of the risk defense are:
- The victim knew of the danger (“should have known” is not good enough).
- The victim understood and appreciated the risks (this may not be the case with a child, for example).
- The plaintiff voluntarily exposed themself to the risk. The defendant cannot have forced the plaintiff to engage in the activity.
The defendant must prove all three of these elements to defeat your claim based on assumption of the risk. The underlying idea is that a person can’t knowingly and voluntarily engage in a dangerous activity and expect to recover damages if they get injured in the process.
Signing a liability waiver can help a defendant establish an assumption of the risk defense. Although Georgia courts frequently enforce liability waivers, state law places strict limits on their use. For example, a defendant cannot enforce a waiver of liability for gross negligence or recklessness.
Comparative Fault in Georgia
When more than one party is at fault for an injury, Georgia applies a system known as modified comparative fault. Georgia courts will apportion fault between the parties on a percentage basis. If the plaintiff is 50% or more at fault, they will receive nothing.
If the plaintiff was anywhere from 1% to 49% at fault, they can receive partial damages. Their compensation will be reduced by their proportion of fault. For example, if the plaintiff was 30% at fault and they suffered $100,000 in damages, the court will reduce the plaintiff’s award by $30,000.
Comparative Fault and Assumption of the Risk
Georgia courts apply comparative negligence principles to assumption of the risk defenses. This allows the defendant to reduce or negate their liability by proving that the plaintiff was at fault by assuming the known risk. If the court finds that the plaintiff was 50% or more at fault by assuming the risk, the plaintiff will be barred from recovering damages.
Common Examples of Assumption of the Risk
The following are some examples where an assumption of the risk defense is likely if a participant files a personal injury claim:
- Attending a baseball game and suffering a brain injury from a baseball hit into the stands
- Suffering an injury in a rugby game
- Injuring yourself while working out in a bodybuilding gym
- Suffering a neck injury on a roller coaster, especially if other riders were uninjured
- Breaking your leg while skydiving
Many sports would be too financially risky to engage in without the “assumption of the risk” defense.
Why You Need a Lawyer Even If You Plan to Settle Out of Court
The party most likely to end up paying your claim is an insurance company. If not an insurance company, then a corporation (such as an amusement park) might bear liability. In the first instance, you will face a savvy insurance adjuster, while in the second instance, you will probably face a company lawyer.
Both of these adversaries are likely to be negotiation professionals who know several tactics to minimize or reduce your damages. Fortunately, personal injury lawyers are also negotiating professionals, and they are well-equipped to fight back against these tactics. Contact a personal injury attorney for assistance with your claim and to maximize your compensation.
Contact the Atlanta Personal Injury Lawyers at Hasner Law PC For Help
We serve in Fulton County, Chatham County, and its surrounding areas: