Blackburn v. Dorta
Supreme Court of FL - 1977
- Is assumption of risk a valid defense or is it superseded by the doctrine of comparative negligence?
- Assumption of risk is not a valid defense since is superseded by the doctrine of comparative negligence.
- Assumption of risk is not a favored defense since it sometimes unjustly denies recovery.
- Assumption of risk is subsumed by either the doctrine of comparative negligence of the common law concept of duty.
- Implied assumption of risk can be primary or secondary.
- Primary means that the D was not negligence because he owed no duty to the P in the first instance or because he did not breach the duty owed. This is no different than the principle of negligence.
- Secondary is an affirmative defense to an established breach of a duty owed by the D to the P.
- Implied Pure means that the P's conduct was reasonable. (rush into burning building caused by D to save baby)
- Implied Qualified means that the P's conduct was not reasonable. (rush into burning building caused by D to save fedora)
- These can both be disposed of through contributory negligence. In cases where contributory negligence defenses are asserted, comparative negligence will be used by the court to determine the outcome.