Blackburn v. Dorta

Opinion by: Sundberg, J.

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.

At the outset, we note that assumption of risk is not a favored defense. There is a puissant drift toward abrogating the defense. 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. 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 "at times the line of demarcation between contributory negligence and assumption of risk is exceedingly difficult to define." [. . .] 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. 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; between primary and secondary; and between reasonable and unreasonable or, as sometimes expressed, strict and qualified. 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. [. . .]

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. [. . .]

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. [. . .] 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. [. . .] 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. [. . .]

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. [. . .] 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 thorn in the judicial side. The affirmative defense brand of assumption of risk can be subdivided into the type of conduct which is reasonable but nonetheless bars recovery (sometimes called pure or strict assumption of risk), and the type of conduct which is unreasonable and bars recovery (sometimes referred to as qualified assumption of risk). Application of pure or strict assumption of risk is exemplified by the 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 a blazing inferno with his infant child trapped within. He rushes in to retrieve the child and is injured in so doing. Under the pure doctrine of assumption of risk, the tenant is barred from recovery because it can be said he voluntarily exposed himself to a known risk. Under this view of assumption of risk, the tenant is precluded from recovery notwithstanding the fact that his conduct could be said to be entirely reasonable under the circumstances. [. . .] There is little to commend this doctrine of implied-pure or strict assumption of risk, and our research discloses no Florida case in which it has been applied. Certainly, in light of Hoffman v. Jones, supra, there is no reason supported by law or justice in this state to give credence to such a principle of law.

There remains, then, for analysis only the principle of implied-qualified assumption of risk, and it can be demonstrated in the hypothetical recited above with the minor alteration that the tenant rushes into the blazing premises to retrieve his favorite fedora. Such conduct on the tenant's part clearly would be unreasonable. Consequently, his conduct can just as readily be characterized as contributory negligence. It is the failure to exercise the care of a reasonably prudent man under similar circumstances. It is this last category of assumption of risk which has caused persistent confusion in the law of torts because of the lack of analytic difference between it and contributory negligence. If the only significant form of assumption of risk (implied-qualified) is so readily characterized, conceptualized, and verbalized as contributory negligence, can there be any sound rationale for retaining it as a separate affirmative defense to negligent conduct which bars recovery altogether? In the absence of any historical imperative, the answer must be no. We are persuaded that there is no historical significance to the doctrine of implied-secondary assumption of risk. As pointed out earlier in this opinion, the affirmative defense developed from a misapplication of principles applicable to the standard of care imposed upon an employer in the master-servant relationship. The opinion of the United States Supreme Court in Tiller v. Atlantic Coast Line R. R., demonstrates that the doctrine has not only been indiscriminately misapplied historically but also represents a morally unacceptable social policy which was calculated to advance the industrial revolution regardless of the cost in human suffering.

[. . .]

. . . A primary function of a court is to see that legal conflicts are equitably resolved. In the field of tort law, the most equitable result that can ever be reached by a court is the equation of liability with fault. Comparative negligence does this more completely than contributory negligence, and we would be shirking our duty if we did not adopt the better doctrine. 280 So.2d 431, 438.


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.

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It is so ordered.

OVERTON, C.J., ADKINS, BOYD, ENGLAND and HATCHETT, JJ., Concur.