Mazzeo v. City of Sebastian

• Decision Date: 26 October 1989
• Docket Number: No. 72744,72744
• Citation: 14 Fla. L. Weekly 544,550 So.2d 1113
• Parties: 14 Fla. L. Weekly 544 Mary Rose MAZZEO, Petitioner, v. CITY OF SEBASTIAN, etc., Respondent.
• Court: Florida Supreme Court

Page 1113

550 So.2d 1113

14 Fla. L. Weekly 544

Mary Rose MAZZEO, Petitioner, v. CITY OF SEBASTIAN, etc., Respondent.

No. 72744.

Supreme Court of Florida.

Oct. 26, 1989.

Richard A. Kupfer of Wagner, Nugent, Johnson, Roth, Romano, Eriksen & Kupfer, P.A., West Palm Beach, for petitioner.

Roberts & Reynolds, and Jane Kreusler-Walsh and John Beranek of Klein, Beranek & Walsh, P.A., West Palm Beach, for respondent.

Cathy Jackson Lerman of Cathy Jackson Lerman, P.A., Fort Lauderdale, amicus curiae, for Academy of Florida Trial Lawyers.

Bonita L. Kneeland of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, amicus curiae, for Florida Ass'n for Ins. Review.

GRIMES, Justice.

This case is before the Court upon the certification of the Fourth District Court of Appeal as a matter of great public importance. Mazzeo v. City of Sebastian, 526 So.2d 1003 (Fla. 4th DCA 1988). Pursuant to article V, section 3(b)(4), Florida Constitution, we have jurisdiction. The certified question reads:

IS THE DOCTRINE OF EXPRESS ASSUMPTION OF RISK RESTRICTED TO EXPRESS CONTRACTS NOT TO SUE AND CONTACT SPORTS, OR DOES IT ALSO INCLUDE OTHER ACTIVITIES IN WHICH A PERSON, FULLY APPRECIATING THE DANGER INHERENT IN THE ACTIVITY, VOLUNTARILY AND DELIBERATELY PARTICIPATES IN THE ACTIVITY?

Mazzeo, 526 So.2d at 1007.

Petitioner Mary Rose Mazzeo brought a negligence action against respondent City of Sebastian (city) in the Circuit Court of Indian River County for maintaining a dangerous condition in a public park and for failure to warn.

Petitioner suffered a broken neck when she dived off a platform into Swim Lake, an artificial lake located in a municipal park. There was no boating activity in the lake. Swimming was permitted, though no lifeguards were provided. The water was between three and four feet deep where Mazzeo dived. The city was aware that from time to time persons dived off the platform. The city had periodically posted "no diving" signs, but on the day of the accident these signs were gone. Only a faded, stenciled "no diving" warning that had been painted on the surface of the dock remained the day of Mazzeo's injury. Mazzeo, an experienced swimmer, dived off the platform in order to demonstrate correct diving form to her young daughter, including placing her hands over her head to protect it.

Linda Martino testified that before diving Mazzeo had stood in the very area of water where she was later injured. Martino said that Mazzeo at first rejected the entreaties of her boyfriend, James Roberts, to demonstrate her diving form because the water was not deep enough, but later went ahead with the dive. Roberts denied that Mazzeo had said anything about the water being not deep enough to dive. Mazzeo testified that she had no recollection of standing in the water near the dock nor saying anything to Roberts about the water being too shallow to dive. A swimming pool expert expressed the opinion that to maintain a platform two and one-half feet over the surface of water only four feet deep constituted a dangerous condition.

In a special verdict, the jury found negligence on the part of the city. However, the jury also concluded that Mazzeo knew of the existence of the shallow water, realized and appreciated the possibility of injury as a result of diving into the water, and having had a reasonable opportunity to avoid it, voluntarily and deliberately exposed herself to the danger by diving into the water. Because of its determination that Mazzeo had assumed the risk, the jury was not asked to make a finding with respect to comparative negligence. Concluding that Mazzeo's recovery was barred under the doctrine of assumption of the risk, the court entered judgment for the city. In a split decision, the district court of appeal affirmed the judgment.

In Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), this Court addressed the continuing viability of the doctrine of assumption of risk following the adoption of the rule of comparative negligence. In analyzing the various aspects of the doctrine, we first distinguished express assumption of risk from that which arises by implication. We then explained that implied assumption of risk may be divided into categories of primary and secondary. The term primary assumption of risk was simply another way of saying 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 which was owed. Thus, implied primary assumption of risk is subsumed within the principle of negligence.

We then turned to an analysis of implied secondary assumption of risk. We explained that this affirmative defense could also be broken down into two categories based upon whether the plaintiff's conduct was reasonable (pure or strict assumption of the risk) or unreasonable (qualified assumption of the risk). We gave as an example a hypothetical situation in which a landlord has negligently permitted his tenant's premises to become highly flammable and a fire ensues. The tenant returns from work to find the premises on fire with his infant child trapped inside. He rushes in to save the child and is burned in the fire. Under the pure or strict doctrine of assumption of risk, the tenant is precluded from recovery because he voluntarily exposed himself to a known risk even though his conduct was reasonable under the circumstances. However, if the tenant was burned when he went into the blazing premises to retrieve his favorite hat, he would have assumed the same risk but his conduct would clearly be unreasonable. We observed that it was this last category of assumption of risk (qualified) which has caused so much confusion in the law of torts because of the lack of analytical difference between it and contributory negligence. We then held:

We find no discernible basis analytically or historically to maintain a distinction between the affirmative defense of contributory negligence and assumption of risk. The latter appears to be a viable, rational doctrine only in the sense described herein as implied-qualified assumption of risk which connotes unreasonable conduct on the part of the plaintiff. This result comports with the definition of contributory negligence appearing in Restatement (Second) of Torts, § 466 (1965). Furthermore, were we not otherwise persuaded to elimination of assumption of risk as a separate affirmative defense in the context herein described, the decision of this Court in Hoffman v. Jones, [280 So.2d 431 (Fla.1973) ], supra, would dictate such a result.... Is liability equated with fault under a doctrine which would totally bar recovery by one who voluntarily, but reasonably, assumes a known risk while one whose conduct is unreasonable but denominated "contributory negligence" is permitted to recover a proportionate amount of his damages for injury? Certainly not. 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.

348 So.2d at 292-93.

The rationale adopted in Blackburn has been generally approved by a number of scholars. 4 F. Harper, F. James & O. Gray, The Law of Torts § 21.8 (1986); Fleming, Comparative Negligence at Last--By Judicial Choice, 64 Calif.L.Rev. 239 (1976); Kionka, Implied Assumption of the Risk: Does It Survive Comparative Fault?, 1982 S.Ill.U.L.J. 371; Comment, Assumption of Risk in a Comparative Negligence System--Doctrinal, Practical, and Policy Issues: Kennedy v. Providence Hockey Club, Inc.; Blackburn v. Dorta, 39 Ohio St.L.J. 364 (1978). The majority of jurisdictions which have adopted comparative negligence...