Assumption of the Risk Does Not Necessarily Raise a Jury Question

July 20, 2020

            On April 12, 2016, Enrique Gonzalez-Nunez was working for Tri State Tire Company, loading and unloading trucks.  Gonzalez-Nunez would also regularly take down the metal bars spanning the inside of the trailer and secured to vertical tracks in the trailer walls.  Prior to loading tires, Gonzalez-Nunez discovered that one of the metal bars was hanging down on the left side of the trailer.  At this point, Gonzalez-Nunez’s manager left to get a tool to take out the screw on the right side of the bar, so it could then be removed.  While waiting on his manager, Gonzalez-Nunez attempted to remove the bar by himself.  Shortly thereafter, Brian Thompkins, an Old Dominion Freight Line, Inc. driver, tried to help Gonzalez-Nunez by using a broomstick to hold up the left side of the bar.  On his third attempt to remove the bar, Gonzalez-Nunez turned to see if his manager had returned with the necessary tool, and in “just a fraction of seconds,” the bar fell down and injured his finger.

 

            Gonzalez-Nunez then brought a negligence action against Thompkins and Old Dominion.  Thompkins v. Gonzalez-Nunez, 843 S.E.2d 39, 40 (Ga. Ct. App. 2020).  Following discovery, the defendants filed a motion for summary judgment based on Gonzalez-Nunez’s assumption of the risk.  The motion was denied and the defendants appealed.  In Georgia, a defendant asserting an assumption-of-the-risk 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.  While assumption of the risk is ordinarily a jury question, “in plain, palpable, and indisputable cases resolution of the issue by a jury is not required.” Id.

 

            Gonzalez-Nunez testified that, prior to the incident at issue, he had experience removing metal bars from Old Dominion trailers.  He understood how they worked and knew there was “a pinch point” if a bar lowered while his finger was still in the track.  Gonzalez-Nunez also testified that he knew he needed a tool to remove the bar, but he explained that his “manager took too long, and [he] was busy, and ... had other things to do.”  As such, Gonzalez-Nunez knew that if the bar slipped off of the broomstick Thompkins was holding while his finger was in the track, he would be injured. 

 

            Gonzalez-Nunez attempted to argue that Thompkins’ contributory negligence raised a question for a jury; however, the Court held that the risk was not general to any plaintiff but, rather, was confined to a particular plaintiff and his situation.  The Court found that Gonzalez-Nunez assumed a risk because he subjectively possessed knowledge of a “specific, particular risk of harm associated with the activity or condition that proximately causes injury.” Accordingly, the Court reversed the denial of the defendants’ motion.

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