Blackburn v. Dorta

Supreme Court of Florida · 1977 · Torts

TortsComparative negligenceAssumption of riskContributory negligenceassumption of riskimplied assumption of riskcomparative negligencecontributory negligence

Facts

The consolidated cases presented a single legal question about the continued viability of assumption of risk after Florida adopted comparative negligence in Hoffman v. Jones. The opinion does not rely on the underlying accident facts of each case, but instead addresses the doctrinal conflict among the district courts. One district court had held that assumption of risk still operated as an absolute bar to recovery, while others held that it did not. The court limited its analysis to implied assumption of risk and expressly excluded express assumption of risk from decision.

Issue

After Hoffman v. Jones abolished contributory negligence as a complete bar and adopted comparative negligence, does the common law doctrine of implied assumption of risk remain a separate affirmative defense that completely bars recovery? Or is it equivalent to contributory negligence and therefore subject to comparative fault principles?

Rule

Express assumption of risk is not addressed. Primary implied assumption of risk is not a true affirmative defense but merely a way of stating that the defendant owed no duty or breached no duty, and it is subsumed within ordinary negligence analysis. Secondary implied assumption of risk, insofar as it reflects unreasonable voluntary exposure to a known risk, is analytically indistinguishable from contributory negligence and is merged into contributory negligence; therefore, comparative negligence principles apply and it no longer bars recovery completely.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Tampa, Olivia Mercer saw that Harborline Storage had left a loading dock trench uncovered despite repeated employee complaints. Wanting to save time, Olivia chose to cut across the dark dock rather than use a marked detour and fell into the trench.

If Olivia sues Harborline Storage for negligence, how should a Florida court treat Harborline's argument that Olivia impliedly assumed the risk by knowingly encountering the danger?

Explanation. The majority held that implied assumption of risk, as an affirmative defense, is merged into contributory negligence. Where the plaintiff unreasonably voluntarily encounters a known risk created by the defendant's breach, the plaintiff's conduct is analytically indistinguishable from contributory negligence and is governed by comparative negligence rather than operating as a total bar.