Marietta Injury Lawyer Blog
In a premises liability claim, an accident victim alleges that a property victim’s negligence caused his or her injury. Depending on the facts of the case, the property owner may raise one or more defenses, including what is known as “assumption of the risk.” Basically, this means that the evidence shows the plaintiff “had full knowledge” of the particular hazard that caused the injury, that the plaintiff “understood and appreciated” this risk, and that they “voluntarily chose to act” of their own free will knowing they might be injured.
Hoose v. United States
A recent decision from a federal judge in Macon, Hose v. United States, illustrates how assumption of the risk is applied by courts in practice. This case involved a personal injury lawsuit against the federal government. The plaintiff was making a delivery to Robins Air Force Base (RAFB). According to the plaintiff, he regularly made deliveries to the commissary at RAFB and was thus familiar with its layout.
The entrance to the commissary’s parking lot was protected by a single gate, which consisted of “two swinging metal arms,” according to court records. RAFP personnel had to manually open the metal arms, which were not “secured” in their unlocked state. On the day of this particularly delivery, conditions at RAFB were windy. In the past, the plaintiff said he noticed the metal arms would swing back-and-forth in the wind. He said he reported this to his own supervisor but not RAFB.
On the day in question, the plaintiff said he completed his delivery and headed for the gates to exit the parking lot. He said that “one of the gates had swung several feet back into the right side of the roadway.” The plaintiff then moved his vehicle to the center in order to avoid the gate arm. However, once he reached the gate, there was a “gust of wind” that pushed one of the gate arms into the plaintiff’s vehicle. The impact shattered the windshield, and the arm itself struck the plaintiff in the arm and head.
The plaintiff subsequently sued the government under the Federal Tort Claims Act, which permits individuals to file claims against the United States under state personal injury law. In response to the lawsuit, the government moved for summary judgment, citing the plaintiff’s assumption of the risk. U.S. District Judge Marc T. Treadwell granted the government’s motion and dismissed the case in a November 13, 2019, order.
Judge Treadwell explained that the plaintiff “knew and appreciated the precise risk involved.” From his previous deliveries to RAFB, the plaintiff knew the metal arms on the gate were a “safety hazard.” He reported the hazard to his own supervisor. Still, “knowing the precise risk posed by the unsecured gate, and knowing that risk posed immediate danger because of windy conditions,” the plaintiff “chose to encounter that risk.”
The plaintiff argued that he did not “voluntarily” assume the risk as the gate was his only means of exiting the base. Judge Treadwell rejected that explanation. He noted that coercion meant there was some “force or threat” requiring the plaintiff to act. In this case, the plaintiff “was not ordered or compelled to drive through the gate, and he did not face any risk or sanction if he did not immediately leave the parking lot.” He could have simply waited for the wind to die down or RAFB personnel to secure the gate. By choosing to drive through the gate when he did, the plaintiff assumed the risk and could therefore not hold the government liable for his injuries.