Zalkin v. American Learning Systems, Inc., 93-2312
| Decision Date | 05 July 1994 |
| Docket Number | No. 93-2312,93-2312 |
| Parties | 93 Ed. Law Rep. 452, 19 Fla. L. Weekly D1437 Howard ZALKIN, etc., et al., Appellants, v. AMERICAN LEARNING SYSTEMS, INC., Appellee. |
| Court | Florida District Court of Appeals |
An Appeal from the Circuit Court for Dade County; Rosemary Usher Jones, Judge.
Carlos Lidsky and Charles L. Vaccaro, Hialeah, for appellants.
Richard A. Sherman and Rosemary B. Wilder, Fort Lauderdale, Alan L. Landsberg, Hollywood, and Russell B. Karr, Miami, for appellee.
Before SCHWARTZ, C.J., and JORGENSON and GODERICH, JJ.
An injured high school football player appeals from a final judgment entered pursuant to a jury verdict for the school. For the following reasons, we reverse and remand for a new trial.
Miles Zalkin, an eleventh grade student at American Heritage School in Plantation, was a defensive tackle for the school's football team. In the last regulation game of the season, Miles injured his shoulder and informed his coach of the injury. The coach advised Miles to seek medical attention, and limited his practice and weight-lifting. Ten days later the coach placed Miles in a round-robin football game, during which Miles further injured his shoulder.
Miles, through his parents, sued the school for negligent supervision in allowing him to play while injured. The school asserted various affirmative defenses, including express assumption of risk. The trial court, over plaintiff's objection, instructed the jury that express assumption of risk was an absolute bar to a negligence action. Over further objection by the plaintiff, the jury was provided with a special interrogatory verdict form that began with questions relating to express assumption of risk, and that directed the jury to proceed no further if they determined that plaintiff had expressly assumed the risk. The jury found that Miles knew of the danger, appreciated the possibility of injury, and deliberately exposed himself to the danger. The trial court, in accordance with the jury verdict, entered judgment for the school.
We reverse, and hold that express assumption of risk is not a bar to an action for negligent supervision of a minor engaged in a contact sport. The Florida Supreme Court has held that knowing and voluntary participation in contact sports constitutes an express assumption of risk "essential to protect the other participants from unwarranted liability for injuries due to bodily contact inherent in the sport." Mazzeo v. City of Sebastian, 550 So.2d 1113, 1116 (Fla.1989) (emphasis added). See also Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla.1986). ...
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