Amicus Brief Filed in the Supreme Court of Georgia on the Applicability of Assumption of the Risk

February 6, 2019 – Press Release

February 6, 2019 (Atlanta, GA) – Martin Levinson authored an amicus curiae brief filed in the Supreme Court of Georgia by the Georgia Defense Lawyers Association (GDLA). The case involves the assumption of the risk and, specifically, the applicability of that defense in the context of a professional negligence claim.

The plaintiff in the case was injured when he fell roughly 18 feet to the ground from a deer stand when he decided to go hunting five days after undergoing coronary bypass surgery. The plaintiff sued his cardiologist and the doctor's practice group, alleging that the doctor negligently prescribed too much medication following the surgery and that caused the plaintiff to faint. The defendants argued at trial that they were not negligent and that, in any event, the plaintiff assumed the risk of his injuries by going hunting and climbing onto an 18-foot-high deer stand just five days after the surgery, despite being told by the cardiologist not to engage in strenuous or risky activities for the next week. The jury ultimately returned a verdict for the defendants. On appeal, the Court of Appeals reversed, holding that the trial court erred in charging the jury on assumption of the risk.

GDLA agreed to submit an amicus brief on the defendants' petition for certiorari filed in the Supreme Court of Georgia. In its brief, GDLA argued that the trial court properly charged the jury on assumption of the risk because a reasonable jury could have found that the plaintiff knew or should have known the risk inherent in going hunting and climbing onto an 18-foot deer stand just five days after surgery, regardless of whether the plaintiff specifically knew he might become dizzy or faint. GDLA also argued that the Court of Appeals erred in ignoring the plaintiff's own conduct, and instead focusing solely on the alleged negligence of the defendant cardiologist, in determining whether the plaintiff could be deemed to have assumed the risk of his injuries. GDLA also contended that the Supreme Court should grant certiorari to reaffirm that assumption of the risk is a viable defense in the professional negligence context.

The case is Dale P. Daly, M.D. and Savannah Cardiology, P.C. v. Shane H. Berryhill and Pamela S. Berryhill, Supreme Court of Georgia, Case no. S19C0499.