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Personal Injury Attorney Discusses Recent Case Discussing Assumption Of The Risk

June 10, 2017

A recent decision from the Georgia Court of Appeals suggests that the defense of "Assumption of the Risk" is viable as a defense. However, a close reading of the case indicates that the defense could have limited application. If you have been injured because of someone else's negligence, then you should consider seeking counsel who has the experience to guide you through the process and zealously represent your interests. There is simply too much at stake to take a chance with anyone else.

In Fuller v. McCormick, a man working on a farm suffered serious injuries when a large rock fell out of a Bobcat and onto his knee. The injured man had parked the Bobcat, which he operated on a slope while the front loader was overfilled with rocks. The man also extended the Bobcat's arm when dumping the rocks. The rocks stuck up higher than the bucket. One of those rocks fell out of the bucket and landed on the worker's knee, causing severe injury. He required a total knee replacement and endured substantial pain even after the surgery.

The man and his wife sued the employer. The lawsuit alleged general negligence, negligent per se, negligent training, and loss of consortium among other causes of action. The trial court ruled against the Farm at the summary judgment phase of the proceedings. Summary judgment is an important juncture in a lawsuit and can be filed by the parties to a lawsuit after the discovery phase of the case is complete. The summary judgment motions ask the judge to evaluate all of the evidence over which there is no dispute or disregard disputed evidence that is not relevant and decide the case as a matter of law that the non-moving party cannot win.

The trial judge, in this case, denied the Farm's summary judgment motion. The Farm claimed that its worker, the plaintiff in the lawsuit, assumed the risk of his injury by his actions. Assumption of the risk is an affirmative defense to a claim, which means, if proven, the defendant is not liable for the plaintiff's injury. The Farm argued that their worker assumed the risk of the injury which he suffered by the manner in which he operated the Bobcat. Although the Farm never formally trained the man to operate the Bobcat safely and appropriately, there were ample warning signs in the Bobcat itself cautioning the operator not to load the bucket with more than 1700 pounds, not to operate on a slope, or drive the vehicle with the arms low.

The appeals court recognized that the Farm might have been negligent in failing to train their employee in the proper use of equipment. Under Georgia law, employers have a duty to train their employees on the use of equipment, and there was no dispute that the Farm did not train the man how to use the Bobcat. Irrespective, the Farm claimed that the man assumed the risk of his injury. The appeals court agreed.

The assumption of the risk would be a bar to recovery in Georgia law if the plaintiff's actions were the sole cause of his or her injury. To prove assumption of a risk, the party claiming the defense has an obligation to produce evidence that 1) the injured man had actual knowledge of the danger, 2) the person understood the potential for danger and actually appreciated the danger, and 3) voluntarily took the risk. The plaintiff has a burden to rebut at least one component of the defense to overcome summary judgment. Most of the time, the assumption of the risk defense is a question for a jury to decide.  Sometimes at fault defendants will allege assumption of the risk unfairly, or out in a way that is out of context as to how an incident occurred.  This is why if you have been injured because off someone else's negligence, you should consult with one of our attorneys at Montlick & Associates to learn about your legal rights as well as what steps are necessary to protect those rights.

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Montlick & Associates has been representing those who suffer serious injuries throughout all of Georgia and in the Southeast for over 39 years, including but not limited to Albany, Athens, Atlanta, Augusta, Columbus, Gainesville, Macon, Marietta, Rome, Roswell, Savannah, Smyrna, Valdosta, Warner Robins and all smaller cities and rural areas in the state.

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Montlick & Associates, Attorneys at Law

17 Executive Park Dr NE
Atlanta, GA 30329
Telephone: 1 (800) LAW-NEED
Telephone: 1 (404) 529-6333

Category: Personal Injury

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All information provided by our blogs is general in nature and should not be relied upon as legal advice. Consult a Montlick attorney for details about your unique situation.

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