Generally, succeeding on an assumption of the risk defense is hard. It’s hard because it is so subjective. Not only do you have to show that the plaintiff was aware of the danger, but you also must show that the plaintiff appreciated the risk the danger posed. The struggle is usually very real. Every now and then the premises liability gods bless you with crystal clear nuggets, or shall we say diamonds, of plain, palpable assumption of the risk.
Such is the case of the jewelry heist at the Brunswick Park Hotel when an unknown subject absconded with Mrs. Carlson’s precious jewels while she and her husband attended dinner. After checking into the hotel with their dog, the Carlsons attempted to use the hotel safe to store their valuables but decided to forego that option when they could not get the safe to open.
Instead, Mrs. Carlson decided to carry a backpack of jewelry to dinner which was the way she preferred to travel with her valuables. Unfortunately, she forgot her jewelry in the hotel room after wrestling the dog into its crate so they could go to dinner. After making it out of the hotel room Mrs. Carlson realized she left her jewelry and attempted to go back for it when her husband stopped her from retrieving the jewels for fear of upsetting their beloved pet. Mrs. Carlson, then told her husband “[i]f there’s anything missing it’s going to cost you a hell of a lot of money.” Famous last words.
The odds were not in Mrs. Carlson’s favor as someone did steal her jewelry while they were at dinner. The Carlsons brought suit against the hotel arguing that the hotel had not taken enough security measures to ensure the safety of their belongings after a string of thefts that had occurred over a year prior to the Carlsons’ heist. The Carlsons further argued that they could not have assumed the risk of theft because they were unaware of the prior heists and therefore, could not fully appreciate the risk they took of leaving their belongings in the hotel.
The Southern District Court of Georgia rejected this argument concluding that the assumption of the risk defense lives and dies by what the plaintiff knew – not what the plaintiff knew in comparison to the defendant. The Court stated that the presence of a safe in the Carlsons’ hotel room should have indicated to them that theft was a conceivable risk. The Carlsons’ discussed the risk of theft and chose to leave their precious jewels in the room rather than disturb their dog. The Court found that the Carlsons assumed the risk of theft and granted summary judgment to the defendants.
The fact that your valuables could be stolen if you leave them out in a hotel seems pretty cut and dry, and in this case it was. The full opinion can be found at Carlson v. BRGA Associates, LLC and Brunswick Hotel Partners, 82 F. Supp. 3d 1333, 1334 (S.D. Ga. 2015).
To access this article written by GM Associate, Samantha Mullis, please click HERE.
