Rea v. Leadership Housing, Inc., 74--612

• Decision Date: 16 May 1975
• Docket Number: No. 74--612,74--612
• Citation: 312 So.2d 818
• Parties: Concetta REA and Frank Rea, her husband, Appellants, v. LEADERSHIP HOUSING, INC., Appellee.
• Court: Florida District Court of Appeals

Page 818

312 So.2d 818

Concetta REA and Frank Rea, her husband, Appellants, v. LEADERSHIP HOUSING, INC., Appellee.

No. 74--612.

District Court of Appeal of Florida, Fourth District.

May 16, 1975.

Rehearing Denied June 12, 1975.

James W. Dawson of Fazio & Dawson, Fort Lauderdale, for appellants.

Frank E. Maloney, Jr. and Robert D. McIntosh of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee.

MAGER, Judge.

This is an appeal by Concetta Rea and Frank Rea, her husband, plaintiffs below, from a final summary judgment entered in favor of Leadership Housing, Inc., defendant below.

Plaintiffs filed a complaint for damages against defendant for injuries suffered by plaintiff Concetta Rea resulting from her stepping or falling into a hole in the driveway leading to her home. The complaint contained multiple counts and sought recovery based upon defendant's alleged negligent installation of the driveway and based upon defendant's alleged breach of express or implied warranty by failing to provide a driveway reasonably safe for its intended use.

The facts as contained in the pleadings and depositions of the plaintiffs reflected that plaintiff Frank Rea and his wife, Concetta Rea, purchased a new residence in Tamarac, Florida, taking possession on or about October 31, 1972. The plaintiffs moved into the home in question on November 7, 1972, and discovered that the driveway which had been covered by a pile of debris had two large holes. Plaintiffs alleged and asserted that they had notified the defendant of the holes in the driveway the day after discovery; that various complaints were made thereafter; and that defendant promised to repair the holes.

The facts reflect that there were no sidewalks leading from the street to the house and that the only path from the frong door to the street (and vice versa) was the driveway with a cement patio from the front door leading to the driveway.

On January 26, 1973, plaintiff Concetta Rea went bicycle riding for the first time since moving to her home. Upon her return, at twilight, she proceeded up the driveway and attempted to stop short of the bigger of the two holes which was on her left. In attempting to do so she placed her right foot on the ground; apparently her right foot touched the edge of the right hole causing her to step into the hole and as a result she fell down and broke her hip.

The facts reflect that Mrs. Rea was fully aware of the existence of two holes and that there was enough room to park a car on the driveway without going into either of the holes and enough room to negotiate a bicycle up the driveway also without going into either one of the holes.

The defendant filed an answer denying each and every allegation and raised the affirmative defenses of assumption of the risk, sole negligence, and contributory negligence of the plaintiff. Subsequently defendant filed a motion for summary judgment alleging that there was no genuine issue as to any material facts and that the defendant was entitled to a final judgment as a matter of law.

Our review of the pleadings and depositions measured against the basic principles applicable to summary judgment leads us to the conclusion that there Were genuinely triable issues of fact precluding summary disposition.

As a general proposition whether a plaintiff has assumed the risk, is guilty of contributory negligence or whether the plaintiff's sole negligence was the proximate cause of the injury ordinarily presents jury questions precluding summary judgment. 30 Fla.Jur., Summary Judgment, sec. 6; Jones v. Crews, Fla.App.1967, 204 So.2d 24; Lora v. Maule Industries, Inc., Fla.App.1970, 235 So.2d 743; see also McRae v. Winn Dixie Stores, Inc., Fla.App.1969, 227 So.2d 214; Railway Express Agency, Inc. v. Garland, Fla.App.1972, 269 So.2d 708; Veiga v. South Carolina Insurance Company, Fla.App.1973, 274 So.2d 10.

Specifically, the factual matters contained in the pleadings and depositions reflect the existence of a triable issue with respect to plaintiff's assumption of the risk precluding summary disposition. Veiga v. South Carolina Insurance Company, supra. The two essential elements of the doctrine of assumption of the risk are (1) voluntariness of exposure to danger and (2) knowledge and appreciation of the danger. Jones v. Crews, supra and Lora v. Maule Industries, Inc., supra. In determining whether a plaintiff knows, understands and appreciates the risk a subjective test or standard must be utilized, i.e., what the particular plaintiff In fact sees, knows, understands and appreciates. Byers v. Gunn, Fla.1955, 81 So.2d 723; Restatement of Torts, 2d, sec. 496D.

It would appear that the record reflects a material issue of fact as to whether plaintiff's use of the driveway was free and voluntary And whether plaintiff knew and understood the risk she was incurring by driving her bicycle up the driveway near the two holes. See Conroy v. Briley, Fla.App.1966, 191 So.2d 601; but see Perlman v. Kraemer, Fla.App.1958, 104 So.2d 609. Moreover, since the accident occurred along an area (driveway) which apparently was the usual (and only) means of egress and ingress to the front door and would reasonably be the pathway through which a bicycle would travel when going to and from the house, there is a material factual question as to whether plaintiff's acceptance of the risk was, indeed, voluntary; and whether defendant's alleged negligent conduct left the plaintiff with no reasonable alternative choice or course of conduct. Conroy v. Briley, supra; see also Restatement of Torts, 2d, sec. 496E.

Additionally, whether plaintiff's conduct constituted contributory negligence on her part either in relation to the claim of negligent construction or breach of implied warranty was a jury question, as was the issue of the sole negligence of plaintiff.

Quite apart from the propriety of the of a summary judgment (because of the material issues of fact raised by the pleadings, depositions and affirmative defenses) is the proposition that even if the pleadings, depositions, etc. conclusively demonstrate an assumption of the risk or contributory negligence a plaintiff would Not be barred from recovery as a matter of law. An examination of the summary final judgment reflects an apparent determination by the trial court that assumption of the risk and contributory negligence constitute a Complete bar to plaintiff's recovery in her actions for negligence and implied warranty. The cases cited by the trial court ¹ in support of its summary final judgment relate Solely to implied warranty and do not speak to the applicability of a defense of assumption of the risk (as a complete bar) in a purely tort action.

The recent decision of the Supreme Court of Florida in Hoffman v. Jones, Fla.1973, 280 So.2d 431 (affirming this court's decision in Jones v. Hoffman, Fla.App.1973, 272 So.2d 529), has laid to rest the efficacy of Contributory negligence as a complete bar to recovery in a tort action. The court in Hoffman announced 'that a plaintiff in an action based on negligence will no longer be denied any recovery because of his contributory negligence'; instead, if a plaintiff and a defendant are both at fault, the doctrine of comparative negligence would be applicable. The court, however, declined to consider what effect the adoption of comparative negligence would have on the defense of Assumption of the risk.

From our examination of the cases discussing assumption of the risk and contributory negligence and from our analysis of the underlying rationale of Hoffman v. Jones, supra, we conclude that the defense of assumption of the risk does Not constitute a complete bar to a plaintiff's recovery. A plaintiff should not be denied recovery solely because of assumption of the risk. Instead, assumption of the risk ought to be treated as a special form of contributory negligence and merged with contributory negligence in light of the adoption of comparative negligence. ²

If the legal cause of the injury to the plaintiff is a combination of the defendant's negligence and the plaintiff's conduct (whether denominated as contributory negligence or assumption of the risk) a plaintiff's right of recovery is not defeated. The amount of recovery would be in proportion to the degree of the negligence of both parties. Hoffman v. Jones, supra, at p. 438.

We are not unmindful of the theoretical distinction between contributory negligence and assumption of the risk. Oftentimes it is a distinction without a difference. In light of the comparative negligence concept, it becomes an unrealistic distinction as well.

In Byers v. Gunn, supra, Mr. Justice Thornal, in discussing the difference between contributory negligence and assumption of the risk, stated as follows:

'At times the line of demarcation between contributory negligence and assumption of risk is exceedingly difficult to define. A generally safe rule to follow is that the latter involves a choice made more or less deliberately and negatives liability. Contributory negligence, on the other hand, implies the failure of the plaintiff to exercise due care. Some courts have stated that assumption of risk is a Mental condition of willingness, whereas contributory negligence is more A matter of conduct.'

The theoretical distinction between the two defenes is that assumption of the risk rests upon the Voluntary consent (and conduct) of the plaintiff to encounter the risk and take his changes; whereas, contributory negligence rests upon the plaintiff's Failure to exercise the care of a reasonable man for his own protection. Restatement, 2d, Assumption of the Risk, sec. 496A. While a Subjective standard is applied to assumption of the risk in determining whether the plaintiff knows, understand and appreciates the risk, an Objective standard is applied to contributory negligence; the plaintiff is required to have the knowledge, understanding and judgment of the standard of a reasonable man....