*1 mine if the damages alleged by the excessive.
Furthermore, if the even had the fair proven market value of the collision, automobile to the prior the plain- tiff failed to prove through probative evidence the of repairs, cost loss vehicle, of use of the and the any value of permanent impairment. though Even testified that his opinion cost of repairs $8,000, was about he did not establish a foundation for his and, therefore, opinion, such evidence was probative. The only evidence before the jury concerning the work repair plain- was the tiff’s testimony that repairs his automobile by were done his son’s friend in that, Tennessee and even he had though received a bill, he had paid any money never for the repairs. Plaintiff presented no evidence a qualified mechanic or repairman regarding the value of repairs his automobile. the plaintiff presented no evidence of the loss of use of his automobile and no evi- dence of the diminution of the value of his automobile.
Therefore, the jury’s determination the plaintiff had failed to prove any damages was under proper the evidence. Judgment J., Birdsong, J., P. concurs. Ruffin, concurs affirmed.
in judgment only. 4, 1997.
Decided November Creal, George Jr., C. for appellant. Associates,
Sharon W. Penn, Ware & Darren W. Groth, Paul L. appellees.
A97A1963. DESAI et al. CITY, v. SILVER DOLLAR INC. Presiding Judge. Birdsong,
Mrs. Desai appeals grant of summary judgment to Silver Inc., Dollar City, doing business as White Park, Water Theme on her claim against White Water based upon an injury she sustained to her knee while one of using the theme park’s water slides. The trial court granted also summary judgment on Mr. Desai’s claim for loss of con- sortium.
Mrs. Desai’s deposition testimony shows that she awas frequent visitor to White Water and that she and her family had season passes for at least three years, including year fact, she was injured. by day injury, 26, 1994, June this was the fourth or fifth trip to White year. Water that Mrs. Desai testified that she was when, injured after going down the water slide at White Water in a raft as she had times, numerous she got out of the raft being The record raft. by another and was struck an attendant told in operation slide the water Mrs. Desai had observed also shows that many on occasions. announcement following injured Desai was day Mrs.
On begin- at the system address public over the continuously played the slide: leading top walkway and on the of the slide ning *2 ride. When thrilling This is a Bob-Slide. to Bahama “Welcome on how to board you instruct lifeguard will tоp, you get raft, sit fac- in the instructions. While to these carefully raft. Listen handles. Do not hold onto the crossed and legs the center with ing throughout Remain seated bump heads. you might forward as lean until out get ride do not At the bottom the the entire ride. raft down coming will be to do so. Other you instructs lifeguard rafts may rules these Disregard water is shallow. and the you behind (Emphasis supplied.) or others.” yourself result did not hear this states that she Mrs. Desai’s affidavit Although being was message has not message, disputed she recorded played. entrance of the slide: was near the sign posted
BAHAMA
BOB-SLIDE
RATING: THRILLING 0-3 FEET DEPTH:
WATER MAX 6 people per Aquadiscs RESTRICTION: TO RIDE
HOW AQUADISCS: . YOUR RAFT THE BOTTOM OF
. PLEASE STAY SEATED ON OF THE HANDLES . HOLD ON TO ONE TOP OF CAN BE CARRIED TO . RENTAL TUBES BE SENT DOWN POOL PLATFORM AND WILL AT OF RIDE . PICK-UP BOTTOM
CAUTION INSTRUCTS EXIT RAFT UNTIL ATTENDANT . DO NOT TO YOU STEP ONTO CONVEYOR
. DO NOT MAY RESULT IN ABIDE BY THESE RULES . FAILURE TO TO YOUR SELF OR OTHERS INJURY first sign read the definitely admits she Although Mrs. Desai did not read the that she rode in 1992 or she testified time she though nothing prevented incident even day on the sign Nevertheless, years testified that two Mrs. Desai reading it. warning sign, earlier when shе read the she knew that she should though may wait for an attendant to tell her to exit the raft even she day injured not have remembered on she was because she consciously thinking was not about it. response question concerning to a whether she that she knew exiting
should wait for the attendant before Mrs. Desai testi- happened, thing. “See, fied: what I came out from the I any problem Okay. My didn’t have to come out. me, mother was with years got properly was 65 I who from the ride. Because it old. wanted to make sure she off wobbly, water, on the I the raft. So was holding lifeguard her raft so she can off.And the at that time was present. They doing something. And I wanted to make sure being person, I off. Because was worried about her the older up and so she could come safe. And I hаd no idea the raft from the up back would come and hit me from the back. And I was unaware of that.” go
Mrs. Desai testified that her mother wanted to on a slide and Mrs. Desai selected the Bahama Bob-Slide because she had been on many it herself so times. Mrs. Desai testified that she went one family raft with her children and her mother and others from her immediately, went in another that, raft. She testified “I came out as *3 — — you soon as know, because of I because wanted to make sure it any problem get wasn’t for me to out. Because I wanted to make sure my get up properly wobbling. mother could because it was And she sixty-five years was thing happened old. And I her, was worried about that if some- visiting her,
to because she was from India. And I get wanted to make sure she didn’t hurt. Becausе this was the first holding ride in her life. So I wanted to make sure. So I was the tube get properly. so she could and hit me on the side. off And I had no idea the other tube came
IAnd was not aware of it. And due to impact, I fell down time, into the water. At that the life- guard help ran to me to me out.” Mrs. Desai further testified her right mother was still seated on side of the raft and it was her plan get to stabilize the raft so that her mother could out. Mrs. Desai previous also testified that on all of her rides on this slide she also lifeguards. exited the raft without the assistance of deposition Thus, Mrs. Desai’s establishes that she left the raft safely. first because she wanted to make sure her mother out Mrs. any Desai also testified that she could not recall whether there was why lifeguard reason she could not wait for a tо assist her from the any urgency part get raft or whether there was sense of on her out response question “[i]n of the raft. In that, words, other there nothing prevented you waiting that would have from for the life- guard help you get to come and raft,” out of the Mrs. Desai responded, “I remember, don’t I sir. did not think it.” in about And your “[t]o response ing question recollection, noth- there was that, lifeguards,” waiting you prevented Mrs. Desai on the anything “Sorry. that. It was a about answered, I don’t remember things.” just thing. did the routine And we routine getting out of the her children were also testified that Mrs. Desai getting and her mother was she was out at the same time raft last one get that, testified Further, raft. Mrs. Desai out of the coming although slide, down the raft would she knew another expect looked to see time, and she never it tо be that close did not coming. raft was another summary judgment, response motion for to White Water’s that she did not hear an affidavit that states Mrs. Desai submitted pan- message, her mother further testified that recorded and she attempted herself, first; head of the raft out icked and Mrs. away doing lifeguards they were 25 feet Desai looked for but jumped conveyor system; something out that she rafts and the with longer help than 15 no mother; and that was of the raft to Additionally, com- Mrs. Desai’s unverified hit. seconds before she was stepped alleges plaint “to assist her out of the raft that Mrs. Desai the raft.” mother out of public is a certified also shows that Mrs. Desai
The record
Deposit
Federal
a senior accountant for the
accountant who works as
departments.
gradu-
mаnaging
Corporation
She
several
Insurance
chemistry.
college
degrees
physics
ated from
with
contending
summary judgment
moved for
After White Water
injuries, the trial court
Desai assumed the risk of her
that Mrs.
granted summary judgment
and Mr. Desai’s claims.
on both Mrs.
appeal
the trial court erred
followed. The Desais contend
This
genuine
granting summary judgment
of material fact
because
issues
remain for trial. Held:
summary judgment
applicable to motions for
1. The standards
Corp. Haskins,
474). summary judgment appeal, grant affirmed if it is On will be Malaga Mgmt. right Co. v. John Deere reason. 746). ruling on a motion for when given summary judgment, opposing party should be the benefit *4 doubt, the court should construe the evidence and all reasonable favorably most toward the all inferences and conclusions therefrom Corр., party opposing Credit the motion. Moore v. Goldome 843). reviewing grant App. 594, 595-596 When summary judgment, de this Court conducts a denial of a motion for Goring Martinez, of the law and the evidence. novo review (2) 432); Mangal Enterprises, Bishop Bhai 535). App. 874 judgment summary White Water’s motion for 2. Because assumption risk, on the defense of based Water affirmative White proving had the that burden of all elements of defense. upon above, Based the evidence set forth there can be no reasonable dispute but White Water met that burden. posted sign clearly
Both the recorded announcements Mrs. Desai that remain in advised she should the raft until a life- guard disregarded reasons, however, assisted her. For her own repeated warnings. deposition Moreover, those mony plainly Mrs. Desai’s testi- emergency requiring
shows that there was no
her to
the raft
testified,
leave
was
before she was instructed to do so. As she
“it
thing.
just
things.”
a routine
And we
did the routine
Mrs. Desai’s affidavit is of no assistance
her
because her affi-
deposition
every significant portion
davit contradicts her
she
in most
provided
explanation
no
for these blatant contradictions. On
summary judgment
party’s self-conflicting testimony
motion for
against
explanation
to be construed
her unless a reasonable
for the
&c., Inc.,
contradiction is offered. Gentile v. Miller
Additionally, assuming permitted this Court had been to credit unexplained contradictory statements in affidavit, Mrs. Desai’s help problem? those statements would not her case. Who created this solely by Instead, Not White Water. it was created Mrs. Desai’s vol- untary actions when both Mrs. Desai and her mother should have clearly palpably remained seated. The record shows that this problem was get of their own creation. the mother’s wish out of the raft was not the result of act or omission of White proxi- Water. These actions of Mrs. Desai and her mother were the mate cause of Mrs. Desai’s as a matter of law. Considering only possible
3. evidence, conclusion is that Mrs. Desai assumed the risk. “The defense of of risk requires: ger, knowledge that the had some actual of the dan- [she] appreciated therefrom, understood and the risk
165 such risk. Stated [herself] voluntarily exposed [she] that of danger of the risk assumption The doctrine of the way: another of the dan- a full appreciation the with only plaintiff, where applies freedom of choice [her] restriction from and without ger involved chooses an coercion, deliberately by circumstances or either as a matter so that it can be said course of conduct obviously perilous In its injury. simplest pri- all risk of has assumed [she] of law advance, in means that sense, plaintiff, of risk mary obligation the defendant of an consent to relieve given [her] has a chances of [her], injury [her] and to take conduct toward or leave undone. the defendant is to do arising risk from what known cases, consent to assume the risk greater In far the number has found to be agreement, a matter of but been express has not been of the under the circumstances. from the conduct implied 105, Hiers, 106-107 SE2d App. Tel Co. v. 179 Ga. General 652).” (Citation omitted.) Brandt, 225 Ga. Young and punctuation (485 519). 889, SE2d 891 knowledge had the assessing requisite “In whether risks, a standard subjective danger appreciation knew, is, understood and particular plaintiff what applies, (471 Pleasent, 862, 866)]; [Vaughn v. appreciated. (409 Lines, 822, 824 Fogleman Truck Beringause subjective knowledge A such lacking taken to assumed the risk even though will not be have danger negligence be deemed for his failure may contributory his conduct danger by under an standard to discover the objective knowledge care of a reasonable man. Id. at exercising required 486). Sumner, 857, 824.” Sutton v. case, In find that evidence shows that undisputed we she knowledge danger Mrs. Desai had actual because so, to do she warned not to out of the raft until instructed knew knew, coming that other rafts would bе down the slide and she warned, if she left the might injured because she was she instances, raft. other Mrs. Desai did not suffer the Although many action, she vol- injury of her in this instance risk consequences effect, though assumed came to even she was untarily pass. hurt, not this or Mrs. Desai tested the you might get warned do do logic permit until she was hurt. It defies both and our law recovery under this evidence. acts of many possible
4. the dissent discusses although failure to communicate e.g., whether active or negligence passive, slide, lifeguards between the and bottom top etc., that none of these acts would the obvious fact remains present, had remained in the raft as have resulted Mrs. Desai’s acts of she was instructed. It is not the individual consent, which one must but known risks from the arising chosen acts or omissions of the plaintiff. Mrs. Desai plainly and without dis- pute assumed the risk of her injury.
5. “Although assumption of the risk is ordinarily a jury question Bloodworth, (Taylor 691)), plain, palpable, indisputable cases resolution of the issue by a jury required. is not Moore v. Service Merchandise 200 Ga. App. 480).” Brandt, Young at supra 891. Accord 692). Center, Daves v. Shepherd Spinal This is such a case.
6. As Mr. Desai’s cause of action is claim, derivative of his wife’s the trial court also properly granted summary on judgment his claim 3). Svcs., as well. Hall v. Garden 174 Ga. App. Accordingly, judgment the of the trial court is affirmed. Andrews, J., Judgment J., C. Pope, Johnson, P. Black- affirmed. JJ, J., burn and Ruffin, concur. Eldridge, dissents. Judge, dissenting. Eldridge,
I am compelled respectfully to dissent from the analysis and by the holding majority for the reasons that follow.
At slide, the bottom of the attendants were assigned to catch the raft guide it to a safe landing so place, that would not be struck when following rafts entered the lower pool. The attendants at the top bottom of the slide were in communication, either by radio, hand signals, mechanical signal, or signal light, and simply guessed at what intervals to release the next raft slide, down the because the bottom of the slide could not be seen from the The top. attendants at the top of the slide did not know that there were no attendants in at place the bottom in the landing pool, because these elsewhere, attendants were rafts moving to the conveyor belt as part of their duties. The attendants at the top slide released at rafts no set intervals. The rafts decelerated as they crоssed the landing pool the approached place of disembarkation.
The so-called warning signs and auditory instructions com- manded the plaintiff to stay seated in her raft and not to attempt to get out without attendants; assistance of the however, all the so- called warnings failed to inform or the danger specific danger injured her, i.e., which struck being by another raft. In fact, the warning signs warned of specific no dangers; the nonspe- cific were, fact, warnings a command that the passenger was not to stand up attempt exit the raft or they might be injured. These so-called warnings were to control the passengers’ conduct and not to protect passengers; protection passengers was, fact, the true purpose signs and intent defendant, then the attendants would have been in place to receive them at safely returning doing important job of instead of a less of the slide bottom rafts. like a herd of docilely commanding By passengers in the rafts to remain necessary, animals, attendants were because fewer conveyor go place return, the rafts on the belt attendants could obediently, waiting passengers for the attendants to sat while return to the rafts. This was crowd control! family Bob-Slide, but when Desai and her rode the Bahama
Mrs. (flume), there were no reached the of the slide their raft bottom glided guide safety. it to The raft to catch the raft and attendants across the stop. landing pool mother, Plaintiffs who and came to a difficulty attempting elderly, get to exit out, but had started was the the attendants. Plaintiffs mother raft the assistance of get panic out of the raft with- and wanted to seemed prevent waiting Plaintiff out of the raft to out for the attendants. falling steady the raft so that mother from out of the raft and her her mother could falling. out without warning, slide, raft, came down the The next launched without landing pool, plaintiff, length who crossed the and struck was injuring raft, Plaintiff unaware that at the rear side of the her. was warning or arrive the next raft had been launched without would being place struck if after such a short interval to plain- she was in the water. The collision of the second raft with landing pool patrons at the end of the where were to dis- tiff occurred struck the second she was embark. At the time standing portion pool of the raft in the with her neаr the left rear *7 facing raft, mother, had on the hands on the who been seated right side of the raft. Plaintiff was struck within 15 to seconds got pool. after she into the prior attendants,
The had at the of the slide to who been bottom busy sending plaintiff’s elsewhere, the launch of were then rafts up conveyor away plaintiff’s feet raft came to belt some 25 when Although only twenty-five stop. the attendants were feet and away, they approximately point ten seconds not at the of disem- were plaintiff’s stopped; plaintiff barkation when mother raft did not warn or her stay they pro- to and to remain in the raft until seated could plaintiff assistance; vide and did not warn to look out for the They approaching pool. second raft after she into the were too they busy clearing pool, help, look, other rafts from the to or warn. If enough look, close to see had bothered to was the attendants were what happening After the and to warn her before she was struck. only plaintiff struck, it took the attendants ten seconds to reach her.
(a) by major- The addressed first issue should have been (e), ity pro- § not, was whether or under OCGA 9-11-56 burden plaintiff/non-moving party duction of shifted to the to show evidence defendant/moving party negligent and acts or omissions of negates possibility evidence existed that whether showing negligence part owner/occupier of the defendant on the employees. Corp. Haskins, Lau’s its Baptist Shropshire, Church v. Greenforest 547) (1996); Lancaster, Crosson v. 864) (1993). The defendant failed to show that it was free from negligence. negligence against case, there kinds of asserted were two (1) passive negligence condition, i.e.,
the ity or a static the inabil- owner: top landing of the attendants to see from the of the flume to the pool, inadequacy auditory warnings, of the visual or and the lack employees areas; of communications between the (2) in éach of these negligence by employees, sending i.e., active the rafts down landing intervals; assist, the flume at unsafe instead of to reached the failure to be at the to putting conveyor belt; rafts on the failure of the attendant they warn and her mother to remain seated after
landing pool and to remain the raft when approach out; to started and failure to warn of the of the second рlaintiff got placed posi- raft after out of the first raft and herself in a peril realizing tion of the imminent to herself. Lipham Dept. Stores, v. Federated (1994). majority distinguish The fails to between these distinct two employees kinds of not active and insists that the acts of the were
negligence. presence warning sign warning The and the audio demon- questions duty strated fact as to whether there was a breach of the to adequately specifically dangers by warn known the owner/ occupier passive, dangers active, of the existence of as well as and as adequacy warning. giving warnings The acknowl- edged dangers identify risks, the existence but failed to dangers, patrons so that could exercise care for their own safety dangers. “warnings” such avoid identified The diluted were thing specific possible into commands do to avoid and all revealing specifically given young risks, risks without those as if patrons obeying children, the usual who were accustomed to direc- blindly. reasonably prudent perceive tions For all a adult could warnings given, the tions that patrons. such instructions were mere crowd control direc- given help management protect and not to message totally bring
The content of the failed to home to *8 appreciation specific dangers the receiver guard against. that there were warning inadequacy The obvious reason for the of was message well-being, to dilute the of and to cause a sense of danger, family place of alarm instead and alertness to fun. away returning Management patrons did not want to scare
169 very warnings would аdequate dangerous place; this potentially chil- for their and their are frightened Patrons who for business. bad not return. safety dren’s do too close blindly and the second raft down sending
The act of landing pool at the attendants having first raft and time to the as to questions raised factual in the disembarkation assist in loading attendants The acts of the negligence. active employees’ raft belt, watching plaintiff’s instead of conveyor the rafts onto raft, or to look out stay in the her either to sit down warning her, raised issues of to hit second raft when was about for the Stores, Dept. supra. v. Federated Lipham See negligence. active fact as to whether or material issues of Plaintiff’s evidence created negligent. its employees not White Water and (b) or not the defend- to be decided was whether The second issue by proving through facie affirmative defense ant made out a prima of such affirmative every each and element evidence competent and on defense, had the both at trial proof for which it burden (443 224, 264 Ga. 225 Kroger Barentine v. summary judgment. 485). Haskins, Hornbuckle Whole (1994); Corp. supra; SE2d Lau’s v. 348) (477 Castellaw, 223 198 App. sale Florist Macon v. Ga. (1996) Edwards, J., J. H. Co. v. (McMurray, dissenting); Harvey P. (466 246) 697, (1995); Buy Best 219 Ga. 698 Sheriff’s Davis, 290, This the defend- 215 Ga. 291 ant also failed to do. (1) contributory affirmative defenses:
White Water raised two
of the risk
negligence by
plaintiff;
of either
If
Water made out each of the elements
plaintiff. White
defense or both and
failed to
evidence to raise
produce
defenses,
then the
material
issue of fact as to either affirmative
defendant
entitled to
as a matter of law.
summary judgment
had the burden of
both at trial and on
proof
White Water
motion for
as to the affirmative defense of con-
summary judgment
exercise
tributory negligence by
failing
ordinary
care for her
SAD A
safety. Hodge
Enterprises,
own
876)
688,
135
637
(1995);
Mynatt,
Stewart v.
Ga.
325)
Hudson,
(1911);
SE
Council
Contributory negligence comprised separate two Jackson, 559, tinct defenses. See Savannah Elec. Co. v. (2) (64 Savannah, Stewart, SE Fla. &c. Co. v. (2) (1884); 668, 673-674 Whatley Henry, “[Fjirst (1941). all times use must at own safety; is, negli- [her] [she] [her]
care for own must not (or consent) second, cause own gence proximately injuries; [her] *9 plaintiff ordinary consequences the must use care to avoid the of the negligence apparent defendant’s when is or when in the exercise оf ordinary apparent. Comparative negli- care it should become . . . gence applicable only jury negli- is when the has not found either the gence plaintiff proximate of the or that of the defendant to be the sole Whatley [Cits.]” Henry, supra cause. Trammell, Ga. Power at 674; see also Edwards v. (369 288) App. (1988); 22, SE2d Leonardson v. (436 690) (1993). 574, negligence launching the Absent of White Water’s attendant the knowing occupants soon, second raft too the status of the plaintiff the first raft or of the attendants, location the lower would injured; plaintiff’s proximate not have been conduct was not the sole only proximate cause of her but concurred in the cause with negligence plaintiff Therefore, the defendant. was, most, at comparatively negligent.
“Compаrative negligence by plaintiff negligence is that joins negligence proximately which ing recovery with the of the defendant in caus- injuries plaintiff goes in reduction of the amount of proportion negligence plaintiff compares that the resulting, by with that of the defendant, reduction, in a bar of recov- ery negligence plaintiff equal greater when the to or than Whatley Henry, supra that of the defendant.” at 674. plaintiff busy loading
While could see that the attendants were away immediately help rafts 25 feet and were not available to her unsteady raft, her mother out of the the raft was as her mother attempted only apparent danger appeared to stand. The to her to be standing that up either the raft would turn over with her mother or that her mothеr would fall over the side of the raft. Plaintiff’s dangerous mother’s conduct created situation, which plaintiff ways: could resolve either of two her mother could sit panic back down and remain seated; however, the mother seemed to feasibility and could not with, be reasoned which reduced the of this alternative and her mother was an adult own; with mind of her (2) plaintiff steady tossing prevent could climb out and raft to negligence top fall, mother’s which she did. The of the attendant on launching warning the flume in was not the second raft too soon and without immediately apparent plaintiff, although may to she have reasonably anticipated duty However, such conduct. no one has a anticipate negligence Poppell Smutney, the active of anothеr. (1962); Ga. 34 Bowen, Beadles v. 254) (1962); Economy Kinslow, Gas &c. Co. v. App. 418 duty negligence
A has no avoid active of another until such has, fact, occurred and is known plaintiff’s diligence, or, exercise of care and raft thus, until the second was her; apparent have been should it, duty had no have seen it or should and she saw launched Collins, 186 Ga. second raft. Newman or avoid the anticipate R. Co. v. Coast Line Seaboard Clark, 122 other rafts known that may have case,
In this while intervals, knowledge was general such short launched within raft would be occasion, the other that, on this knowledge specific not no warning first seconds after the less than 30 launched landing pool the raft would cross given, the launch would be have her, or that raft would raft or with the other and collide any, negligence, Plaintiff’s injuries. to cause her such force as but instead injury, goes cause of her the sole proximate *10 the a under jury question which is negligence, of comparative defense of this case. and circumstances facts any did not warn of “warnings” and visual the audio the and instruction as to only commands gave but
specific danger, injury, lead to without which could patrons conduct of general Thus, warnings conduct. the dangers of such the revealing potential actual or dan- any potential a notice of adequately provide failed to iden- commanded certain conduct warnings merely the gers; a and proper adequate does not constitute which tifying dangers, warning.
(2) knowingly a person “[w]hen of the risk occurs Assumption of which is injury, danger risk of physical takes a voluntarily and to а risk, itself, of amounts of such a and taking so that the obvious safety, [her] for own diligence care and ordinary failure to exercise by caused injuries proximately for cannot hold another liable [she] may be in attributable though injuries part action even such Brooks, 250 Ga. such other Deere & Co. v. negligence person.” of 704) (2) (299 (1983); Collins, supra Newman v. 517, (1), SE2d 518-519 (462 723, Girone, v. 265 Ga. 724 596; City at see also Winder of (367 704) 263, 258 Ga. 267 (1995); Corp. Helmy, Union v. Camp SE2d 796) Blackwell, 211 Gas Co. v. Ga. (1988); Southland Butane SE2d 6) (88 (1955); also Fountain v. 252 665, Thompson, SE2d see 669-670 788) (1984). (312 256, 257 SE2d Ga. the concepts acts as a transition between
“Testing peril known recklessly ‘One tests an and of the risk. who assumption of avoidance care,’ ordinary of lack of guilty is clearly peril obvious observed 495) (1980) (two (2) (267 SE2d App. v. 154 Ga. Douglas, Brooks will be deemed negligence of such ‘which оnly), guilty and is judges and, in the absence of resulting injury, [the] cause of proximate defendant, preclude misconduct will recov- by the or wanton wilful (189 265) (1936).” 669, SE Clark, 670 App. Laseter v. 54 Ga. ery.’ Collins, at 596. supra v. Newman
172 44) (188 (1936), 426 SE and other Morgan, App. v. 54 Ga.
“Taylor avoidance and cases, merge concepts to blend or two of appear they the risk are and distinct. separate Assump- when assumption primary its sense means that the simplest tion of risk in of an obliga- has consent to relieve defendant given express [her] [her] [her] tion of toward to take chance of from a conduct (225 475) Bryson, 78, 138 79 known risk. Owens-Ill. Ga. (1976). the risk Also, knowledge regarded with as may to take own Id. at tacitly agreeing p. [her] or chances. 79. In impliedly distinction, the courts have arrived at the working out the conclusion of risk is mаtter of knowledge danger acquiescence King, 518, [102 in it. Roberts v. intelligent Ga. 521 (1) (116 885) (1960)]. The doctrine of consequences avoidable does is upon any not rest the idea defendant relieved duty recovery toward but denies which plaintiff, damages could have been discovered have been avoided might by rea- 688, on plaintiff’s part. Pilgrim, sonable conduct Osborn 118) (1980). Avoidance of the involves consequences the failure take action to overcome defendant’s after it negligence Turner, plaintiff’s discovered exercise of care. Lanier 749, The rule requires which one to consequences avoid another’s does not apply until or has apprehend [she] sees reason it. Central R. 656, &c. Co. v. Attaway, SE See Griffin Campbell, Smith v. 670 Street, New (1965); Economy Gas (Punсtuation omitted.) Kinslow, &c. 420].” Co. v. at [supra Newman v. Collins, at 596-597. supra
For the of affirmative defense of the to assumption risk be appli- case, cable to must this there be evidence that plaintiff “the had knowledge actual dangerous the situation that in [her] resulted of injury, and the appreciation an risks associated that danger- with of ous supplied.) Pleasent, situation.” v. (Emphasis Vaughn 862, 266 Ga. 863 “The affirmative defense of assumption of the a plaintiff risk bars a recovering on claim if it circumstances, [she] established that of coercion chooses a course knowledge of action with full of its danger and while exercis- a ing free choice as to whether to in the engage act or not. Georgia, a asserting defendant an of risk assumption the defense must еstab- (1) lish that had plaintiff knowledge the actual the danger; of understood the appreciated and risks associated such danger; with (3) voluntarily and exposed Knowledge to those risks. of the [herself] risk, risk is the assumption watchword of of and means both actual and the subjective on The knowledge plaintiff’s part. knowledge that a subjectively who assumes a risk must is that the possess of
173 activity associated with the condi- risk harm specific, particular of does knowledge requirement The injury. causes tion that proximately risks non-specific general, plaintiff’s comprehension not to a of refer (Cita- or activities.” with such conditions that be associated might omitted; Id. at tions, footnotes, emphasis supplied.) and punctuation 585, 864; Mangram, also Smith see 758) Atlanta, (1996); York v. Winn-Dixiе 92, 94- Storage Co., (1995); Turner Sumter Self (3) (449 has Thus, the Court returned Supreme and of subjective knowledge appreciation
tort again requiring law to of assumption the defense the risk the before affirmative of danger the and of recovery; subjective knowledge appreciation specific bars summary in motion for danger support has not been this shown The of fact the jury. majority and remains a judgment question in to by this order to affirm reference ignore requirement chooses the Court held not general danger, Supreme awareness which was the risk adequate to as a bar. prove assumption case, in of a kind existed warnings warnings While nature and as to The general specific dangers not what existed. not out get was that should warning passengers attempt raft; warnings did not as the that specify danger passenger raft; by could struck another such could have warning caused danger reasonable to believe that the raft or person tipping was raft, or out of not another falling being down struck raft. For recovery, of the risk to must be assumption bar aware and choose to risk such specific danger specific danger. Seibers 811, Dixie Speedway, Co.,
Turner v. Sumter at 94. Storage supra Self case, In this asserted that she believed the dan- ger tipping falling, protect elderly was raft or mother, out of it. steady the raft to rule, general party
“As a whether a assumed the risk of [her] for the jury by summary is an issue that should not be decided unless the judgment conclusively by plain, defense is established pal- pable undisputed Taft, evidence. Taft 667) [(1993)].” v. Sumter Storage Turner at supra Self 94. a prima The defendant this case failed to make out facie risk, defense of subjective affirmative because such has knowledge specific danger appreciation This a plain, undisputed been shown. was not evi- palpable case, dence seeks to as although majority appear make such. Plaintiff was confronted what she sudden perceived attempted her mother had out of the emergency; exper- *12 Therefore, jury and a arose problems, panic. ienced seemed to issue actually as to a presented whether facts and circumstances 174 emergency ordinary and, so, if
sudden
did she exercise
care under
getting
steady
and
of
out
facts
circumstances
instead
making
of
her mother
down and wait
sit
for
attendants. The eld-
erly
plaintiff merely
situation;
mother created the
reacted to her
emergency,
accuracy
an
mother. In
one is not held to the same
of
judgment
required
that would be
when there is more time for deliber-
895)
260)
(53
Co.,
v.
Air
ation. Bass
(1949);
(1996);
Seaboard
Line R.
of the defendant. The have would to decide this was assumption negate exception of an the risk which would of sud- emergenсy part den plaintiff or if it was on the emergency comparative negligence
so that sudden applicable. would be emergency only applies Sudden to those acts follow-
ing peril or realization crisis and before there is time mature apply conduct, reflection toas the safest course thus it cannot Avery was an when there of the risk. Brock v. (1958); Stripling Calhoun, 923) (1959); see Mehretab, also MARTA v. 263, 264 Stairs, Thomas may Plaintiff be held to realize the peril standing up getting falling tipping out the raft peril raft; however, over the she was never aware of the from the hur- tling successfully raft after she exited her raft. own plaintiffs elderly or not
Whether mother’s conduct constituted a emergency jury along crisis or for the to decide, with the affirma- contributory negligence, assumption tive comparative negligence. defenses risk, majority
The has taken the above issues jury from the determination of the of law. While this case would and decided this as a case matter
probably by jury adversely be decided plaintiff, § 9-11-56, under OCGA has the absolute right jury, court, have and not the trial decide this case under Corp. supra; these facts and Haskins, circumstances. Lau’s Green Baptist Shropshire, supra; Church Lancaster, Crosson v. forest supra.
Decided October *13 denied November
Reconsideration Rubin, Markus, Wildau, appel- for Martin H. David Rubin & lants. Stair,
Webb, Carlock, Neary, & Brian R. Sender Copeland, appellee. THE KNAPP v. STATE.
A97A1010. (493 SE2d Judge. Beasley, 24,1996, driving and convicted of with was arrested
Knapp April OCGA 40- prohibited by alcohol concentration as § an unlawful blood (a) (4), 21, 1995, thereafter subsec- redesignated 6-391 effective April (a) (5). issues arе Evidentiary, procedural, jury charge tion raised. at a road block license check. One
Knapp stop failed his car. car, stopped followed patrol Knapp, officers his emanating officer detected the odor of alcohol Upon approach, feet, had red and unsteady watery from his breath. on his Knapp and, alcohol, if said he had eyes consuming when asked he had been The officer conducted standard field whiskey had and beer earlier. and the test. The results sobriety prompted tests alcosensor breath (OCGA the officer to inform of his consent Knapp implied rights (a) (3)), him, him to the 40-5-55 and 40-6-392 arrest and take §§ An alco- police breathalyzer station. intoximeter test showed blood sequential samples. hol content of .16 in two percent jury charge language 1. enumerates as error the in the Knapp (b). states, things, OCGA 40-6-392 It other there shall among § was under the influence of alcohol presumption person (3) (a) (1), as of OCGA prohibited by paragraphs subsection if the exceeds certain 40-6-391 blood alcohol concentration § amounts. contends the constituted Knapp charge impermissible bur- State, den shifting. This issue was settled Simon (4) (355 State, 210, See also Holcomb v. (3) (458 State, 484-485 Ellerbee held that 102, 104-105 Simon charge impermissibly where not such a burden properly qualified, but, to the deter- shifting given, even it is not relevant improperly (a) mination of the crime defined in OCGA 40-6-391 element § The of OCGA 40-6- require language and does not reversal. clear § (b) to former apply itself shows that do not presumptions (4). (a) subsection 391