2020 Georgia Code
Title 51 - Torts
Chapter 11 - Defenses to Tort Actions
Article 1 - General Provisions
§ 51-11-2. Effect of Consent

As a general rule no tort can be committed against a person consenting thereto if that consent is free, is not obtained by fraud, and is the action of a sound mind. The consent of a person incapable of consenting, such as a minor, may not affect the rights of any other person having a right of action for the injury.

(Orig. Code 1863, § 2985; Code 1868, § 2998; Code 1873, § 3053; Code 1882, § 3053; Civil Code 1895, § 3893; Civil Code 1910, § 4490; Code 1933, § 105-1803.)

- For note, "The Evolution of the Doctrine of Informed Consent," see 12 Ga. L. Rev. 581 (1978). For comment discussing withdrawal of consent by patient as grounds for assault and battery charge against physician, in light of Mims v. Boland, 110 Ga. App. 477, 138 S.E.2d 902 (1964), see 16 Mercer L. Rev. 463 (1965).

There is no difference between consent principle and principle of assumption of risk. The doctrine of assumption of risk in general is of recent development, but has been applied to Georgia under the consent doctrine but almost always in the name of contributory negligence. Roberts v. King, 102 Ga. App. 518, 116 S.E.2d 885 (1960).

Assumption of risk means that plaintiff has given the plaintiff's express consent to relieve defendant of obligation of conduct toward the plaintiff and to take the plaintiff's chance of injury from a known risk. The result is that the defendant is simply under no legal duty to protect the plaintiff. Roberts v. King, 102 Ga. App. 518, 116 S.E.2d 885 (1960).

Necessary elements of assumption of risk by guest have been clearly defined as follows: first, there must be a hazard or danger inconsistent with the safety of the guest; second, the guest must have a knowledge and appreciation of the hazards; and third, there must be acquiescence or willingness on the part of the guest to proceed in the face of danger. Roberts v. King, 102 Ga. App. 518, 116 S.E.2d 885 (1960).

Assumption of risk is matter of knowledge of danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be. Roberts v. King, 102 Ga. App. 518, 116 S.E.2d 885 (1960).

- The doctrine of the assumption of the risk of danger applies only when the plaintiff, with a full appreciation of the danger involved and without restriction from the plaintiff's freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law that the plaintiff has assumed all risk of injury. Myers v. Boleman, 151 Ga. App. 506, 260 S.E.2d 359 (1979).

- When the plaintiff was ordered to render services on the day in question, and was made conscious of the fact that the air in the store had become hot and polluted by dust, but did not have knowledge of a danger, the act of the plaintiff in obeying the order of the master did not amount to a consent to be injured. Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

In a tort action filed by a nine-year-old child's parent, as next friend, the appeals court declined to assume that merely because the child assented to the requests of adults, the child consented to the treatment the adults imposed. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).

When one assumes risk of willful and wanton misconduct and is injured or killed thereby, a cause of action for such injury or death is barred. The true defense in these cases is the doctrine of assumption of the risks. This doctrine has sometimes been mistakenly referred to as contributory negligence. In the cases in which this has been done the term contributory negligence truly means assumption of risk or consent to the injury for the reason that in such cases the so-called contributory negligence would not necessarily have barred the action when willful and wanton misconduct was involved, whereas the assumption of risk doctrine would have. Roberts v. King, 102 Ga. App. 518, 116 S.E.2d 885 (1960).

When one assumes the risk of the willful and wanton misconduct of another a recovery on the basis of such misconduct is precluded and the law will not undertake to divide the wantonness into degrees or fractions of degrees to ascertain whether the death or injury resulting was fully realized and appreciated by the one so assuming the risks. The law will hold such a one to have assumed whatever risks develop in the process of the activity engaged in. Roberts v. King, 102 Ga. App. 518, 116 S.E.2d 885 (1960).

- Even when the defendant's act is such by reason of its wantonness or otherwise as to cut off the defense of contributory negligence, the plaintiff cannot recover, if it appears that the plaintiff consented to the injury. Roberts v. King, 102 Ga. App. 518, 116 S.E.2d 885 (1960).

- Defendant's allegation that the 15-year-old plaintiff consented to and was the instigator of sexual acts was relevant and admissible in an action brought by the plaintiff. McNamee v. A.J.W., 238 Ga. App. 534, 519 S.E.2d 298 (1999).

- Summary judgment was properly denied on a parent's claim of intentional infliction of emotional distress, false arrest, false imprisonment, and invasion of privacy arising out of an accusation by store employees that the parent's nine-year-old child stole from the store because the child was below the age of 13, the age of criminal responsibility under O.C.G.A. § 16-3-1, and was legally incapable of giving consent to their actions under O.C.G.A. §§ 51-11-2 and51-11-6. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).

- A minor child of tender years riding at the invitation of the driver and owner of an automobile, with the express consent and acceptance of the child's mother, even though, on account of the child's tender years, incapable of itself giving consent or accepting the invitation, is a guest of the driver thereof within the rule rendering the driver liable to such guest only for gross negligence. Chancey v. Cobb, 102 Ga. App. 636, 117 S.E.2d 189 (1960).

- Patient authorized psychiatrist's physical contact as part of the patient's treatment. Harris v. Leader, 231 Ga. App. 709, 499 S.E.2d 374 (1998).

Summary judgment was properly granted dismissing a patient's suit alleging that a chiropractor committed battery against the patient during chiropractic treatment because the evidence showed that the patient consented to the adjustment; while the patient contended that the chiropractor's touching exceeded the scope of consent, the patient had not pointed to any evidence that the chiropractor performed a procedure other than an adjustment that day. Prince v. Esposito, 278 Ga. App. 310, 628 S.E.2d 601 (2006).

- Evidence clearly and palpably showed that the security guard was injured when the guard attempted to break up the fight between the patient and the nurse. The security guard deliberately entered the fight and assumed the risk of injury by voluntarily confronting those who had begun the fight; thus, the security guard assumed the risk. Carter v. Scott, 320 Ga. App. 404, 750 S.E.2d 679 (2013).

Evidence did not support a patient's contention that a chiropractor obtained the patient's consent fraudulently by misrepresenting the effects of long-term chiropractic care as the patient was treated by the chiropractor for 12 years without significant problems and was pain-free when the patient took advantage of the free adjustment; the chiropractor had no duty to disclose negative information about a prior battery claim to patients. Prince v. Esposito, 278 Ga. App. 310, 628 S.E.2d 601 (2006).

- Female restaurant employee, who fell for a telephone prank and allowed a male supervisor to strip-search her for evidence of a coin purse theft, was not entitled to recover on any of the state law tort claims brought against the supervisor and the restaurant-employer because the employee consented to the search; further, there was no evidence that the supervisor thwarted the employee's capacity to consent or obtained consent by fraud within the meaning of O.C.G.A. § 51-11-2. Fogal v. Coastal Rest. Mgmt., Inc., 452 F. Supp. 2d 1286 (S.D. Ga. 2004).

Evidence did not support a patient's contention that a chiropractor obtained the patient's consent fraudulently by misrepresenting the effects of long-term chiropractic care as the patient was treated by the chiropractor for 12 years without significant problems and was pain-free when the patient took advantage of the free adjustment; the chiropractor had no duty to disclose negative information about a prior battery claim to patients. Prince v. Esposito, 278 Ga. App. 310, 628 S.E.2d 601 (2006).

- Evidence did not support a patient's contention that questions of fact remained regarding whether the patient withdrew the consent given to a chiropractor during an adjustment since the patient did not ask the chiropractor to stop the adjustment or otherwise speak to the chiropractor during the treatment; the fact that the patient gasped or expelled air when the chiropractor pushed down on the lower back could not reasonably be considered a withdrawal of consent. Prince v. Esposito, 278 Ga. App. 310, 628 S.E.2d 601 (2006).

- When the defendant pled that the grade of a street had been changed with the consent of the plaintiff, in the absence of an appropriate written request, the court was not required to charge this section. Mayor of Americus v. Phillips, 13 Ga. App. 321, 79 S.E. 36 (1913).

- Trial court erred in granting a police officer and a city summary judgment, on the ground that the officer was performing a discretionary duty and the city was protected by sovereign immunity, in an arrestee's action to recover damages for injuries sustained when the officer ran over the arrestee's foot with a patrol car during the arrest. A jury would be authorized to find that the officer did not act intentionally, but rather, negligently came too close to the arrestee with the car for the purposes that the officer was trying to achieve and used poor judgment under the circumstances; there was an issue of fact on whether the arrestee assumed the risk of injury because it was not beyond dispute that the arrestee was aware of the actual risk of being hit by the officer or that the arrestee had subjective knowledge that the arrestee was at risk of being hit from behind by a police car being driven by a trained officer when the arrestee had not threatened the officer with deadly force. Davis v. Batchelor, 300 Ga. App. 662, 686 S.E.2d 314 (2009).

Cited in Adair v. Southern Mut. Ins. Co., 107 Ga. 297, 33 S.E. 78 (1899); Coweta County v. Central of Ga. Ry., 4 Ga. App. 94, 60 S.E. 1018 (1908); Wood v. Morris, 109 Ga. App. 148, 135 S.E.2d 484 (1964); King v. Mention, 116 Ga. App. 209, 156 S.E.2d 488 (1967); Wittke v. Horne's Enters., Inc., 118 Ga. App. 211, 162 S.E.2d 898 (1968); Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971); Pritchard v. Neal, 139 Ga. App. 512, 229 S.E.2d 18 (1976); Watts v. Six Flags Over Ga., Inc., 140 Ga. App. 106, 230 S.E.2d 34 (1976); Crowley v. Ford Motor Credit Co., 168 Ga. App. 162, 308 S.E.2d 417 (1983); J.H. Harvey Co. v. Speight, 178 Ga. App. 812, 344 S.E.2d 701 (1986); Worsham v. United States, 828 F.2d 1525 (11th Cir. 1987); Bendiburg v. Dempsey, 707 F. Supp. 1318 (N.D. Ga. 1989).

RESEARCH REFERENCES

Am. Jur. 2d.

- 74 Am. Jur. 2d, Torts, § 53.

- 86 C.J.S., Torts, §§ 14, 15.

- Contributory negligence or assumption of risk as defense in action against physician or surgeon for malpractice, 50 A.L.R.2d 1043.

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 8 A.L.R.3d 1393.

Liability of owner or operator of trampoline center for injury to or death of spectator or patron, 8 A.L.R.3d 1427.

Tort liability of public schools and institutions of higher learning for accident occurring during school athletic events, 35 A.L.R.3d 725.

Liability for injury or death in shooting contest or target practice, 49 A.L.R.3d 762.

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 A.L.R.5th 513.

Construction and application of contact sports exception to negligence, 75 A.L.R.6th 109.