Assumption of Risk

The doctrine of Assumption of Risk has a tortured history. While it is still listed as an Affirmative Defense in the Florida Rules of Civil Procedure, outside of the contractual express assumption of risk, it has largely been merged into the defense of Contributory Negligence.

As noted by the Court::Florida Supreme Court in 1977:


 * 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, Case::280 So.2d 431 (Fla.1973), shall apply in all cases where such defense is asserted. Blackburn v. Dorta, Case::348 So.2d 287, 293 (Fla. 1977).

Adding to the confusion, case law has often confused Contributory Negligence and assumption of risk and created multiple divisions within the assumption of risk doctrine. Distinctions exist between:
 * express and implied;
 * primary and secondary;
 * reasonable (strict) and unreasonable (qualified).

Express
Express assumption of risk arises by contract. Blackburn, 348 So.2d at 293 (Fla. 1977), citing Meistrich v. Casino Arena Attractions'', Case::155 A.2d 90 (N.J. 1959).

Implied
Implied assumption of risk has historically been 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." Blackburn, 348 So.2d at 290.

History
As explained by the Florida Supreme Court in Blackburn:


 * 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. See Leavitt v. Gillaspie, Case::443 P.2d 61 (Alas.1968). 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. Taylor v. Chicago, Rock Island & Pacific Ry., Case::170 N.W. 388 (1919).


 * 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. Meistrich v. Casino Arena Attractions.

Modern Application
While the assumption of risk doctrine muddled on, it was largely abandoned as an independent legal doctrine in Blackburn. There, the Florida Supreme Court systematically reviewed the various forms of implied assumption of risk and found that each failed to serve any useful purpose, not otherwise embodied in some other area of the law.


 * 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 “(a)t times the line of demarcation between contributory negligence and assumption of risk is exceedingly difficult to define.” Blackburn v. Dorta, Case::348 So.2d 287, 289 (Fla. 1977), citing Byers v. Gunn, Case::81 So.2d 723, 727 (Fla.1955).

Reviewing the above quoted history of the implied assumption of risk doctrine, the Florida Supreme Court found no discernible basis analytically or historically to maintain a distinction between the affirmative defense of contributory negligence and assumption of risk. Finding 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, Case::280 So.2d 431 (Fla.1973), shall apply in all cases where such defense is asserted. Blackburn, 348 So.2d at 293.

Primary
The Florida Supreme Court has recognized that "no useful purpose is served by retaining terminology which expresses the thought embodied in primary assumption of risk." The court explained: "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."

Secondary
Secondary assumption of risk, which is an Affirmative Defense, can be subdivided into (1) "the type of conduct which is reasonable but nonetheless bars recovery (sometimes called pure or strict assumption of risk)", and (2) "the type of conduct which is unreasonable and bars recovery (sometimes referred to as qualified assumption of risk)." Only the second survives as an affirmative defense in Florida.

Strict 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." Blackburn 348 So.2d at 291, citing Morrison & Conklin Construction Co. v. Cooper, Case::256 S.W.2d 505 (Ky.1953); Restatement (Second) of Torts, s 496C, Comments d-g (1965).

Qualified assumption of risk
Qualified assumption of risk "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." Blackburn, 348 So.2d at 291.