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FMG Law Blog Line

Assumption of the Risk in Georgia – Is “Common Sense” Finally the New Standard?

Posted on: June 4th, 2020

By: Aaron Miller and Wayne Melnick

Assumption of the risk is an important affirmative defense for defense attorneys.  Typically, in order to receive a jury charge for assumption of the risk, defense attorneys must demonstrate the plaintiff him/herself actually knew of the specific harm that could result from participating in the activity.  Many a case has seen that defense barred when the plaintiff simply said (s)he had “no idea” that the specific bad thing that happened to them could happen.  On Monday, June 1, 2020, the Georgia Supreme Court broadened the use of an assumption of the risk defense, affirming that the use of an “objective common-sense” standard is enough to allow a jury instruction on assumption of the risk.

In Daly et al. v. Berryhill et al., Plaintiff Berryhill treated at a local clinic for chest pain and high blood pressure.  Due to his condition, the local physician referred Berryhill to Dr. Daly.  Dr. Daly performed tests which indicated that Berryhill suffered from low blood flow and instructed Berryhill to continue taking blood pressure medication, as well as anti-blood clotting medication and medication to treat high cholesterol and blood pressure.  Dr. Daly warned Berryhill of the possible side effect of dizziness during strenuous activities, however, the doctor did not specifically warn plaintiff against participating in any specific activities.  The following day, Dr. Daly performed a cardiac catheter procedure revealing a 99% blocked artery and performed a balloon angioplasty with a stent.  The operation was a success, and Berryhill was instructed not to engage in any strenuous activity.

Within a week of his discharge, Berryhill went on a hunting trip.  As part of this trip, Berryhill walked 200 yards through rough terrain while carrying a nine-pound rifle and climbing up an 18-foot deer stand.  Once atop the deer stand, Berryhill fainted, falling from the deer stand and fractured several vertebrae.  Berryhill filed a lawsuit against Dr. Daly, alleging that Dr. Daly prescribed too much blood pressure medication.  Over objection from the plaintiff’s counsel, the Court charged the jury on assumption of the risk.  Subsequently, the jury found for Dr. Daly.

On appeal, the Georgia Supreme Court rejected Berryhill’s argument that Dr. Daly never advised Berryhill to specifically avoid hunting.  However, the Supreme Court determined that an objective common-sense standard was appropriate in assessing whether a plaintiff had knowledge of a risk.  Here, the Court ruled that “even though Dr. Daly did not explain all specific risks that could have resulted from disregarding those instructions, a competent adult like Berryhill cannot blind himself to the obvious risk of a dangerous cardiovascular event…”.  In doing so, the Court ruled that there was at least slight evidence that Berryhill knew his hunting trip posed a risk to himself and affirmed the defense verdict, holding that the trial court did not err in giving the requested jury instruction for assumption of the risk.

This ruling broadens the cases for which an assumption of the risk charge would be beneficial.  In order to take advantage of this defense, it is not necessary to specifically cite activities which could be dangerous to a participant; instead a general warning may enough, and the onus falls on the plaintiff to use their common sense to determine if the activity poses a risk to themselves.  It remains to be seen if this indicates the Court is moving toward removing the “subjective knowledge of a specific risk” and replacing it entirely with the objective common-sense standard applied in this case, but the ruling appears to open the door for it.

If you would like a copy of this case or would like more information, please contact Aaron Miller at [email protected] or Wayne Melnick at [email protected].

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