What is Assumption of the Risk?

What is Assumption of the Risk?

In this personal injury case, a go-kart patron said that he was injured as a result of the negligence of the theme park when another patron crashed into the back of his go-kart as he prepared to exit the course.

The theme park filed a motion to dismiss the case based on the doctrine of assumption of the risk. But the trial court denied that motion. The Court of Appeals granted the theme park’s application for interlocutory review to determine whether the trial court erred by denying its motion.

Assumption of risk is a defense that a defendant can claim in personal injury lawsuits. This means that a defendant can’t be sued for damages or injuries the plaintiff suffered if the plaintiff knowingly and voluntarily assumed the risk of damages or injury.


In August 2019, the plaintiff was celebrating his birthday at a theme park. He’d visited the theme park before and had ridden a go-kart before his August 2019 visit. On the day in question, the plaintiff rode the go-kart course once without any issues. During his first ride, there were about eight other go-karts on the course, and he saw that the drivers would occasionally bump into each other. At the end of the ride, the power to the go-karts decreased and eventually stopped as a go-kart employee directed the patrons into the “pit,” which consisted of two single-file go-kart lanes. The drivers were instructed to stay in their go-karts until they were told by an employee to get out and exit the ride.

The plaintiff returned to the go-kart course to ride it a second time. After the ride, he pulled his go-kart into one of the single-file lanes of the pit, as directed by the theme park employee. After he parked his go-kart and was preparing to exit the ride, another patron “violently rear-ended” his go-kart, allegedly causing him injuries. The plaintiff testified during his deposition that he’d already unbuckled his seatbelt and was stepping out of the go-kart when he was injured. However, his friend testified that the plaintiff had still been buckled in his seatbelt at the time of the collision.

The plaintiff filed a personal injury action against the theme park, alleging that the park and its employees failed to properly maintain and operate the go-kart ride. He sought general, special, and punitive damages. The park answered the complaint and asserted assumption of the risk as an affirmative defense. After discovery, the theme park filed a motion to end the case, contending that the plaintiff’s claims of negligence amounted to nothing but speculation and, regardless, that his claims were barred by his assumption of the risk. The plaintiff opposed the motion and without citing to any record evidence beyond the occurrence of the incident itself, and asserted that the park negligently failed to properly reduce the power of the go-kart being driven by the patron who caused the crash, which resulted in her inability to stop. The trial court denied the theme park’s motion, and this appeal followed.

On appeal, the theme park contended, in part, that the trial court erred by denying its motion because the plaintiff assumed the risk of his injuries by choosing to ride the go-kart. The Court of Appeals agreed.


Judge Brian M. Rickman wrote in his opinion for the Georgia Court of Appeals that the affirmative defense of assumption of the risk bars recovery when it’s shown that a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. To prove this defense, the theme park 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.

Judge Rickman said that Georgia courts have addressed the issue of assumption of risk in connection with amusement park rides on a number of occasions and have held that a person who uses such rides assumes the risk of injury arising as a result of the natural and obvious hazards necessary to the purpose of the device.

Here, the undisputed evidence showed that the plaintiff was familiar with and had previously ridden on the go-kart course, was aware that the go-carts were driver-operated, and knew that the go-karts occasionally hit one another during the ride. In addition, there was a Road Course Rules sign posted at the entrance of the go-kart area that the plaintiff admitted to having read before entering the course. The sign included the following instructions: “No Bumping — No Reckless Driving;” “Drive slowly when leaving or entering pit area;” and “RIDE AT YOUR OWN RISK.” Finally, an audio recording was played in the waiting area of the go-kart course that included the following directives:

  • Avoid contact with slower or stopped traffic;
  • No bumping, swerving, or hitting the rail;
  • Slow down and enter loading area with caution;
  • Driver controlled ride — ride at your own risk; and
  • Drive safely.

There was also a large sign above the pit area directing drivers to “SLOW DOWN” as they entered. And finally, the back of each individual go-kart included a sign that said “NO BUMPING!”.

Putting aside the fact that the plaintiff failed to present any evidence beyond speculation as to the collision, the evidence was sufficient to show that he assumed the risks associated with the go-kart course, including that other drivers may bump his go-kart from behind, whether in the pit or not. As a result, the trial court erred by denying the theme park’s motion to dismiss the case. Fun Spot America of Atlanta, Inc. v. Johnson, 2024 Ga. App. LEXIS 128 ( Ga. App. March 14, 2024).

How Does This Defense Work in Auto Accident Cases?

If the defense of assumption of risk is to be successful in an auto accident case, the defendant must show that the plaintiff was aware of a specific, known risk connected with driving at that time and place, and willingly elected to take that risk. For instance, the plaintiff decided to drive in hazardous weather conditions and was fully aware of the dangers. So, if a motorist decides to drive in tornado even though there have been weather warnings and advisories against doing so, and then is involved in a car crash, the doctrine may be found to be viable.

Note that even if the defendant argues assumption of the risk, an auto accident plaintiff may still be able to recover partial compensation depending upon the specific facts and circumstances of the case. If the plaintiff can demonstrate that the defendant was in some way responsible for his or her injuries, the plaintiff still may be able to receive partial compensation.

Georgia is a modified comparative negligence state, so a plaintiff can recover damages from the responsible party or parties even if he or she is partially at fault, provided their percentage of fault doesn’t equal or exceed that of the other party or the proportion of fault of all other parties combined. If a jury determines that the plaintiff is 49% at fault, then he or she can still collect compensation equal to 51% of the damages.

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