Torts II, Pages 648–651

Blackburn v. Dorta

Supreme Court of Florida, 1977

Facts:

Several cases reached differing decisions about whether "the doctrine of assumption of risk is still viable as an absolute bar to recovery subsequent to the adoption of the rule of comparative negligence." The Supreme Court consolidated three of these cases to resolve the conflict.

Issue:

Is the doctrine of assumption of risk an absolute bar to recovery since the adoption of comparative negligence?

(Old) Rules:

  • Primary implied assumption of risk is when the defendant was not negligent because he did not owe a duty or did not breach his duty.

  • Secondary implied assumption of risk is an affirmative defense to an established breach of defendant's duty to plaintiff.

    • This is further divided into pure or strict assumption of risk and qualified assumption of risk:
      1. Pure assumption of risk strictly bars anyone from recovery whenever he voluntarily exposes himself to a known risk.
      2. Qualified assumption of risk "is the failure to exercise the care of a reasonably prudent man under similar circumstances."

Reasoning:

  • There is no reason to retain the terminology of "primary assumption of risk." This is contained within the principle of negligence itself.

  • There is also no reason to retain pure assumption of risk, as it precludes valid claims for entirely reasonable actions.

  • Qualified assumption of risk, the most confusing in relation to contributory negligence, is virtually the same thing as contributory negligence. There is no reason to retain an identical defense which bars recovery altogether.

Rule/Holding:

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Therefore, we hold that the affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence enunciated in Hoffman v. Jones, supra, shall apply in all cases where such defense is asserted.


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