concurring.
I reluctantly concur with the majority opinion because I believe that the legislature should modify the assumption of risk defense provided for under Georgia law in tortious claims arising from wilful or wanton acts in conformance with the prevailing approach used in other states. OCGA § 51-11-2, which was originally enacted in 1863 and provides the statutory basis for the assumption of risk defense, states that “no tort can be committed against a person consenting thereto if that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 concept of assumption of risk is quite similar to common-law contributory negligence since both operate as a bar to a plaintiff’s recovery of damages. 57A AmJur2d 721, Negligence, § 815. In some cases, the two concepts are indistinguishable. Id. For this reason, some states have refused to even distinguish between the concepts of assumption of risk and common-law contributory negligence. See, e.g., Askin v. Dalgarno, 293 F2d 424 (10th Cir. 1961).
The common-law contributory negligence doctrine has been uniformly criticized as being overly harsh. 57A AmJur2d 752, Negligence, § 856. In response, the vast majority of states, including Georgia, have largely replaced the common-law doctrine of contributory negligence with some form of comparative negligence, where the negligence of the plaintiff is compared with the negligence of the defendant and may serve to reduce the plaintiff’s recovery of damages instead of completely barring the plaintiff’s action. Id.; OCGA § 51-11-7. In this way, states modified the doctrine to achieve results more consistent with modern notions of fairness. For example, in Georgia we have limited the common-law doctrine of contributory negligence to a form of the last clear chance doctrine. See OCGA § 51-11-7.
However, Georgia has continued to recognize a plaintiff’s assumption of risk as a complete bar to actions for all torts rather than as a factor that reduces a plaintiff’s recovery. OCGA § 51-11-2; Roberts v. King, 102 Ga. App. 518 (116 SE2d 885) (1960). This practice is contrary to that of most states that have either abolished the concept of assumption of risk completely or have treated the doctrine as simply a form of comparative negligence. 16 ALR4th 700, Compar*811ative Negligence — Assumption of Risk, §§ 2-3. Georgia’s retention of the assumption of risk doctrine shares the same defects as the common-law contributory negligence doctrine that has been abandoned by most jurisdictions, including Georgia. I do not believe there is any justification for treating a plaintiff’s assumption of risk more harshly than a plaintiff’s contributory negligence, given the very slight distinction between the two concepts.
Decided November 15, 1999 Reconsideration denied December 20, 1999. Reinhardt, Whitley & Wilmot, Glenn Whitley, Robert C. Wilmot, for appellant. J. Hugh Gordon, Walters, Davis & Pujadas, J. Harvey Davis, Moore & Studstill, Daniel L. Studstill, for appellees.The potential for unfair results is great, particularly since under Georgia law assumption of risk is a complete defense against tort actions based on a defendant’s wanton or wilful conduct or even a plaintiff’s intentional conduct. OCGA § 51-11-2; Roberts, supra. In the instant case, it is clear that McEachern’s conduct was reckless and was partially to blame for his untimely demise. Due to his unreasonable willingness to participate in the risky game with Muldovan, it is probably fitting that McEachern should not be able to recover all of his damages. However, if this is so, I believe the better means of achieving this result is by allowing the jury to compare McEachern’s fault with Muldovan’s fault and reducing his damages accordingly. Otherwise, if the assumption of risk defense is allowed to stand in its present form, plaintiffs who consent to risks not nearly as outrageous as the risk assumed by McEachern will not be able to recover damages for tort actions where the defendant has engaged in wanton or wilful conduct.
I am authorized to state that Justice Hunstein joins in this opinion.