Sports and Recreation Injury Claims in Georgia: When Assumption of Risk Has Limits

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A person hurt in a sport or recreational activity may face the defense that the person assumed the risk. Georgia decisions set a demanding test for that defense, separate it from the rule about open and obvious dangers, and limit what a signed release can do, and some activities, such as horseback riding, have their own statutes.

What a Defendant Must Prove

A defendant relying on assumption of the risk must prove that the injured person actually and subjectively knew of the specific danger, appreciated the risk, and voluntarily faced it. In Vaughn v. Pleasent, 266 Ga. 862 (1996), a police officer responding to an emergency was hurt when a pickup truck turned left across the officer’s path, and the jury was instructed that the officer might have assumed the risk. The Supreme Court of Georgia wrote that a defendant asserting the defense “must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.” The Court explained that the knowledge required “means both actual and subjective knowledge on the plaintiff’s part,” and that it is knowledge of “the specific, particular risk of harm associated with the activity or condition that proximately causes injury,” and not a comprehension of general, non-specific risks. Because the record showed “no evidence that Officer Vaughn had actual knowledge that Pleasent intended to turn left in front of him,” it was error to give the charge, and the Court could not say the error was harmless. The case arose from a road collision, and the Court stated the elements of the defense without limiting them to that setting.

Assumption of Risk Is Not the Same as an Obvious Danger

In Bodymasters Sports Industries, Inc. v. Wimberley, 232 Ga. App. 170 (1998), a health club member was hurt on a leg press that lacked a safety device, a lack the member knew about. The Court of Appeals wrote that “the affirmative defense of assumption of the risk is separate and distinguishable from the open and obvious doctrine,” held that knowing a safety device is missing does not necessarily mean the person assumed the risk, and left to the jury whether the member fully comprehended the danger. In Ogletree v. Navistar International Transportation Corp., 269 Ga. 443 (1998), the Supreme Court held that the open and obvious danger rule does not control where a product is alleged to have a design defect. A claim that equipment was defective when sold, such as a helmet that left the factory cracked, is a product claim against the manufacturer (OCGA 51-1-11(b)(1)), and it cannot be commenced more than ten years after the first sale of the product for use or consumption (OCGA 51-1-11(b)(2)).

What a Signed Release Cannot Do

A release can cover a business’s ordinary negligence, but not its gross negligence or wilful misconduct. In McFann v. Sky Warriors, Inc., 268 Ga. App. 750 (2004), two pilots signed agreements releasing an aircraft rental business from liability for its negligence before a simulated combat flight in which a wing separated. The Court of Appeals held that an advance release cannot shield a business from its own gross negligence or wilful misconduct, and that the evidence raised a jury question on whether this business’s conduct rose that far. In reaching that result it relied on an earlier decision, My Fair Lady of Ga. v. Harris, 185 Ga. App. 459 (1987), for the point that exculpatory clauses relieving a business of its own ordinary negligence are valid and not void as against public policy.

Frequently Asked Questions

What Georgia statute allows a person to waive rights in advance?
A person may waive or renounce what the law has established in that person’s favor when doing so does not injure others or affect the public interest, but laws made for the preservation of public order or good morals may not be dispensed with by agreement (OCGA 1-3-7).

Are there special rules for horseback riding and other animal activities?
Yes. An equine, livestock, or llama activity sponsor or professional, or any other person, is not liable for a participant’s injury or death resulting from the inherent risks of those activities, subject to listed exceptions, including providing equipment or tack the person knew or should have known was faulty and that caused the injury (OCGA 4-12-3(a), (b)).

Is a boat owner liable when a guest was driving?
The owner of a vessel is liable for injury or damage caused by its negligent operation only if it was being used with the owner’s express or implied consent, and consent is presumed when the vessel is under the control of the owner’s spouse, parent, sibling, child, or other immediate family member (OCGA 51-1-22).

Can a participant who could have avoided the harm still recover?
Not if the participant, by ordinary care, could have avoided the consequences of the defendant’s negligence; in other cases the defendant is not relieved merely because the participant contributed in some way to the injury (OCGA 51-11-7).

  • Vaughn v. Pleasent, 266 Ga. 862 (1996)
  • Bodymasters Sports Industries, Inc. v. Wimberley, 232 Ga. App. 170 (1998); Ogletree v. Navistar International Transportation Corp., 269 Ga. 443 (1998); OCGA 51-1-11(b)(1), (2)
  • McFann v. Sky Warriors, Inc., 268 Ga. App. 750 (2004); My Fair Lady of Ga. v. Harris, 185 Ga. App. 459 (1987) (as relied on in McFann)
  • OCGA 1-3-7; OCGA 4-12-3(a), (b); OCGA 51-1-22; OCGA 51-11-7

Disclaimer

This article provides general information about the assumption of risk defense in sports and recreation injury claims under Georgia law. It is not legal advice, is not medical advice, and does not create an attorney-client relationship. Whether the defense applies depends on what the injured person actually knew and the specific facts. A person hurt in a sport or recreational activity should seek medical care and consult a licensed Georgia attorney promptly about the particular situation.

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