Blackburn v. Dorta

• Decision Date: 05 May 1977
• Docket Number: Nos. 46621,47621 and 48443,s. 46621
• Citation: 348 So.2d 287
• Parties: Kevin BLACKBURN, Jr., a minor, by and through his father and next friend, Kevin Blackburn, Sr., and Kevin Blackburn, Sr., Individually, Petitioners, v. David DORTA, a minor, by and through his parent and natural guardian, et al., Respondents. LEADERSHIP HOUSING, INC., Petitioner, v. Concetta REA and Frank Rea, her husband, Respondents. MAULE INDUSTRIES, INC., a Florida Corporation, Petitioner, v. Raymond C. PARKER, Sr., and Patricia A. Parker, his wife, Respondents.
• Court: Florida Supreme Court

Page 287

348 So.2d 287

Kevin BLACKBURN, Jr., a minor, by and through his father and next friend, Kevin Blackburn, Sr., and Kevin Blackburn, Sr., Individually, Petitioners, v. David DORTA, a minor, by and through his parent and natural guardian, et al., Respondents.

LEADERSHIP HOUSING, INC., Petitioner, v. Concetta REA and Frank Rea, her husband, Respondents.

MAULE INDUSTRIES, INC., a Florida Corporation, Petitioner, v. Raymond C. PARKER, Sr., and Patricia A. Parker, his wife, Respondents.

Nos. 46621, 47621 and 48443.

Supreme Court of Florida.

May 5, 1977.

Rehearings Denied July 27, 1977.

Ira H. Leesfield, Miami, James D. Little and Larry S. Stewart, Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for petitioners in 46621.

William E. Sadowski, Helliwell, Melrose & DeWolf, Miami, for respondents in 46621.

Frank E. Maloney, Jr., Fleming, O'Bryan & Fleming, Fort Lauderdale, for petitioner in 47621.

James W. Dawson, Fazio, Dawson & Thompson, Fort Lauderdale, for respondents in 47621.

Thomas E. Scott, Jr., Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for the Dade County Defense Bar Association, amicus curiae.

Alfred A. Green, Jr., Green, Strasser & Hammond, Daytona Beach, for petitioner in 48443.

Anthony I. Provitola and Michael McDermott, Provitola & McDermott, Deland, for respondents in 48443.

SUNDBERG, Justice.

These three consolidated cases are before the Court under our conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Florida Appellate Rule 4.5(b). The District Court of Appeal, Third District, in Dorta v. Blackburn, 302 So.2d 450 (Fla. 3d DCA 1974), found that the doctrine of assumption of risk is still viable as an absolute bar to recovery subsequent to our adoption of the rule of comparative negligence in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). On the same point of law, the District Court of Appeal, First District, in Parker v. Maule Industries, Inc., 321 So.2d 106 (Fla. 1st DCA 1975); and the Fourth District in Rea v. Leadership Housing, Inc., 312 So.2d 818 (Fla. 4th DCA 1975), reached contrary conclusions. Subsequent to entertaining these consolidated cases, the District Court of Appeal, First District, has decided Smith v. Carter, 338 So.2d 845 (Fla. 1st DCA 1976); Hambrick v. Jackson, 333 So.2d 96 (Fla. 1st DCA 1976), and Manassa v. New Hampshire Insurance Co., 332 So.2d 34 (Fla. 1st DCA 1976). In addition, the District Court of Appeal, Second District, has decided Hall v Horton, 330 So.2d 81 (Fla. 2d DCA 1976). Each of these last cited decisions rejects the continued viability of assumption of risk as a complete bar to recovery. We have jurisdiction.

Since our decision in Hoffman v. Jones, supra, contributory negligence no longer serves as a complete bar to plaintiff's recovery but is to be considered in apportioning damages according to the principles of comparative negligence. We are now asked to determine the effect of the Hoffman decision on the common law doctrine of assumption of risk. If assumption of risk is equivalent to contributory negligence, then Hoffman mandates that it can no longer operate as a complete bar to recovery. However, if it has a distinct purpose apart from contributory negligence, its continued existence remains unaffected by Hoffman. This question was expressly reserved in Hoffman as being not ripe for decision. 280 So.2d 431, 439.

At the outset, we note that assumption of risk is not a favored defense. There is a puissant drift toward abrogating the defense. ¹ The argument is that assumption of risk serves no purpose which is not subsumed by either the doctrine of contributory negligence or the common law concept of duty. ² It is said that this redundancy results in confusion and, in some cases, denies recovery unjustly. The leading case in Florida dealing with the distinction between the doctrines recognizes that "(a)t times the line of demarcation between contributory negligence and assumption of risk is exceedingly difficult to define." Byers v. Gunn, 81 So.2d 723, 727 (Fla.1955). The issue is most salient in states which have enacted comparative negligence legislation. Those statutes provide that the common law defense of contributory negligence no longer necessarily acts as a complete bar to recovery. The effect of these statutes upon the doctrine of assumption of risk has proved to be controversial. Joining the intensifying assault upon the doctrine, a number of comparative negligence jurisdictions have abrogated assumption of risk. ³ Those jurisdictions hold that assumption of risk is interchangeable with contributory negligence and should be treated equivalently. Today we are invited to join this trend of dissatisfaction with the doctrine. For the reasons herein expressed, we accept the invitation.

At the commencement of any analysis of the doctrine of assumption of risk, we must recognize that we deal with a potpourri of labels, concepts, definitions, thoughts, and doctrines. The confusion of labels does not end with the indiscriminate and interchangeable use of the terms "contributory negligence" and "assumption of risk." In the case law and among text writers, there have developed categories of assumption of risk. Distinctions exist between express and implied ; ⁴ between primary and secondary ; ⁵ and between reasonable and unreasonable or, as sometimes expressed, strict and qualified. ⁶ It will be our task to analyze these various labels and to trace the historical basis of the doctrine to unravel what has been in the law an "enigma wrapped in a mystery."

It should be pointed out that we are not here concerned with express assumption of risk which is a contractual concept outside the purview of this inquiry and upon which we express no opinion herein. Meistrich v. Casino Arena Attractions, supra (see footnote 5). Included within the definition of express assumption of risk are express contracts not to sue for injury or loss which may thereafter be occasioned by the covenantee's negligence as well as situations in which actual consent exists such as where one voluntarily participates in a contact sport.

The breed of assumption of risk with which we deal here is that which arises by implication or implied assumption of risk. Initially it may be divided into the categories of primary and secondary. The term primary assumption of risk is simply another means of stating that the defendant was not negligent, either because he owed no duty to the plaintiff in the first instance, or because he did not breach the duty owed. Secondary assumption of risk is an affirmative defense to an established breach of a duty owed by the defendant to the plaintiff. Meistrich v. Casino Arena Attractions, supra.

The concept of primary assumption of risk is the basis for the historical doctrine which arose in the master-servant relationship during the late nineteenth century. See Leavitt v. Gillaspie, supra (see footnote 3). The master was held not to be negligent if he provided a reasonably safe place to work; the servant was said to have assumed the inherent risks that remained. In this context assumption of risk was not an affirmative defense at all. Rather, it was another way of expressing that the master was not negligent, for the servant had the burden of proving that his injury resulted from a risk other than one inherent in a facility or location that was a reasonably safe place to work. Taylor v. Chicago, Rock Island & Pacific Ry., 186 Iowa 506, 170 N.W. 388 (1919). As is often the case in the common law, however, the doctrine mutated into an affirmative defense, with the burden of pleading and proof upon the master. Consequently, even if the servant could show that the master owed and had breached a duty to provide a reasonably safe place to work, the master could escape liability if he could establish that the servant had voluntarily exposed himself to a risk negligently created by the master. Thus, two distinct concepts came to bear the same label with inevitable confusion which has persisted to the present. Meistrich v. Casino Arena Attractions, supra.

It is apparent that no useful purpose is served by retaining terminology which expresses the thought embodied in primary assumption of risk. This branch (or trunk) of the tree of assumption of risk is subsumed in the principle of negligence itself. Under our Florida jury instructions, the jury is directed first to determine whether the defendant has been negligent, i. e., did he owe a duty to the plaintiff and, if so, did he breach that duty? To sprinkle the term assumption of risk into the equation can only lead to confusion of a jury. See McGrath v. American Cyanamid Co., supra (see footnote 3). An example of this concept is presented in the operation of a passenger train. It can be said that a passenger assumes the risk of lurches and jerks which are ordinary and usual to the proper operation of the train, but that he does not assume the risk of extraordinary or unusual lurches and jerks resulting from substandard operation of the train. The same issue can be characterized in terms of the standard of care of the railroad. Thus, it can be said that the railroad owes a duty to operate its train with the degree of care of an ordinary prudent person under similar circumstances which includes some lurching and jerking while a train is in motion or commencing to move under ideal circumstances. So long as the lurching or jerking is not extraordinary due to substandard conduct of the railroad, there is no breach of duty and, hence, no negligence on the part of the railroad. The latter characterization of the issue clearly seems preferable and is consistent with the manner in which the jury is instructed under our standard jury instructions.

Having dispensed with express and primary-implied assumption of risk, we recur to secondary-implied assumption of risk which is the affirmative defense variety that has been such a...