Citation. Blackburn v. Dorta, 348 So. 2d 287 (Fla. May 5, 1977)
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Brief Fact Summary.
Three cases where consolidated by the Supreme Court of Florida to determine if the doctrine of implied assumption of the risk was viable as an absolute bar to recovery subsequent to adoption of comparative negligence.
Synopsis of Rule of Law.
The concept of comparative negligence eliminates the need for the affirmative defense of implied assumption of the risk.
Facts.
Three cases where consolidated by the Supreme Court of Florida to determine if the doctrine of implied assumption of the risk was viable as an absolute bar to recovery subsequent to adoption of comparative negligence.
Issue.
Is the doctrine of implied assumption of the risk still viable as an absolute bar to recovery subsequent to adoption of comparative negligence?
Held.
No. The affirmative defense of implied assumption of the risk is merged into the defense of comparative negligence.
* In Hoffman v. Jones, 280 So.2d 431 (Fla1973), this Court held that contributory negligence would no longer be a complete bar to negligence, but rather would be considered in apportioning damages. However, in that case the court left the viability of assumption of the risk for a future day. The court notes that assumption of the risk is not a favored defense and that it generally serves no purpose not covered by the doctrine of contributory negligence or common law duty.
* Several categories of assumption of the risk have developed, including (i) distinctions between express and implied; (ii) between primary and secondary and (iii) between strict and implied. This Court’s determination deals with implied assumption of the risk.
* Primary assumption of the risk occurs when the defendant is not negligent, either because he owed no duty to the defendant or because he did not breach a duty owed. The concept grew out of the master-servant relationship. This terminology is subsumed in the principle of negligence itself. Thus there is no useful purpose in retaining it.
* Secondary assumption of the risk is an affirmative defense to an established breach of duty owed by the defendant to the plaintiff. This defense can be further divided into strict and qualified assumption of the risk. Strict secondary assumption of the risk involves conduct, which is reasonable, but nonetheless bars recovery. The court found nothing in either case law or justice to validate this rule under the modern comparative negligence scheme.
* Qualified secondary assumption of the risk is conduct that is unreasonable and bars recovery. Such conduct can just as easily be characterized as contributory negligence. This Court holds that the principles of comparative negligence will be applied in any case where the defense of implied assumption of the risk is asserted.
Discussion.
Express assumption of the risk is a contractual obligation such as a release signed by a plaintiff. This Court expressed no opinions on the subject.
