“Assumption of Risk” Wipes Out $15 Million Dollar Verdict

Assumption of Risk

“assumption of risk”

A $15 Million Dollar Verdict was deemed uncollectable under “Fireman’s Rule”.   A Fulton County police officer was providing security, part-time, for a local church.  While on his way home, he came upon a single car accident.   The officer recognized the crashed vehicle as the type of vehicle typically driven by undercover officers and detectives.

When the officer stopped to render  aid,  he was shot by the driver of the crashed vehicle.    The driver of the crashed vehicle turned out to be police  officer from a different police department.

The injured officer  had already  removed his bullet proof  vest on  the way home.    He was disabled and underwent  eight surgeries to save  his shattered hand an d arm.

The jury deliberated only 80 minutes before rendering a verdict in  favor of  the wounded officer, awarding $15 million.   However, on  a motion for summary judgment, the Judge dismissed three defendants (the city for  which the defendant officer was employed, the  city’s police chief and police major),  as a result of the “fireman’s rule.”   Under the “fireman’s rule”, officers  cannot sue for injuries sustained in  the line of duty,  because such injuries are a  “forseeable risk  of  the job.”

Although the injured  police  officer was off  duty  at the  time of the shooting, the court considered him to be  on  duty because he was driving his  patrol  car  and was wearing his uniform when he stopped to offer assistance to  the driver of the crashed vehicle.

With the city,  the police chief and the police major dismissed  from the case  as defendants,  the lone remaining defendant  was the officer who  did the shooting.   The lone remaining  defendant did not appear at  the trial because he is incarcerated serving  a  75  year sentence  of  which 60 years  are  to be served  in  prison.

Unfortunately, the defendant  who actually did the shooting is  what we  typically classify as “judgment proof”,  i.e., no assets  from which to collect the judgment.

There are also other occupations in  which there is an assumption of risk,  for example the airline industry.  Injuries or death while in  the line  of duty may be limited to only a workers  compensation  claim for employees.

In this case,  the Court of Appeals held that the shooter  was  not  acting in the course and scope of  his  employment;  however, the injured Plaintiff could consider bringing a separate action for  “negligent  hiring”   for which compensation may be  sought  from the city.

The doctrine of  “assumption of risk”  provides that if the plaintiff  (injured party) by ordinary care  could  have avoided the consequences  to   himself caused  by the defendant’s negligence,  he is not entitled to  recover.

Under O.C.G.A. § 51-11-7, assumption of risk may  be implied or express.     To  succeed  in  applying the assumption of risk defense, (1)  the Plaintiff must have had actual knowledge  of  the danger,  (2) the Plaintiff must have understood  and appreciated the risk  associated  with the danger,  and (3) the Plaintiff must have voluntarily exposed  himself to the associated risk.

Under  the “fireman’s rule” the nature of the job subjects the employee to  risks of  injury created  by  individuals he or  she is called upon  to serve.    When  the employee  accepts the job,  the employee  assumes  a  risk of  injury.    This  rule  is seen  as justified  because the employee  is paid  to encounter  the risk  and receives training to  cope  with the risk.

For more information or to discuss your particular case, contact: Anthony Overton Van Johnson & Associates, P.C. at 678-882-7355, or e-mail: info@triallawyersusa.us for a free consultation.