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Assumption of Risk in Florida Limited by Appellate Court

November 3, 2017

When a plaintiff undertakes a dangerous task or activity, the law will generally not allow recovery for any damages if the plaintiff assumed the risk.  This basic principle is referred to as Assumption of Risk, and its parameters have been narrowly defined under Florida law.  The assumed risk may be express or implied and the defendant must show that the plaintiff knew the risk and voluntarily assumed the risk.  However, a recent Florida decision reiterates the narrow application of this principle as previously held by the Florida Supreme Court.

In Petruzella v. Church of the Rock of Palm Coast, the District Court of Appeal of Florida, Fifth District, decided on May 19, 2017, the appellate court held that “the doctrine of express assumption of the risk should not be expanded beyond express contracts not to sue and injuries resulting from contact sports.”  The plaintiff in Petruzella, a “volunteer musician drummer and member of the Church on the Rock of Palm Coast”, sued his church after “he tripped on the bass player’s unsecured cord and fell off the stage during a rehearsal. As a result of the fall, he sustained substantial injuries.”  Evidence showed that the plaintiff performed on the church’s stage “at least three to four times a week” starting in 2009.  The church moved for summary judgment arguing that the plaintiff was familiar with the stage, he assumed the risk of performing, and the dangerous condition was open and obvious.

The appellate court in Petruzella held that the “trial court’s finding that Mr. Petruzzella expressly assumed the risk of performing on that stage is contrary to the law of Florida regarding express assumption of risk, implied assumption of risk, and principles of comparative negligence.”  The appellate court explained that the Florida Supreme Court had narrowed the application of the doctrine of Assumption of Risk in a 1977 decision and again in 1989.  In those decisions the Court held that express contracts not to sue, and injuries sustained from contact sports were the only cases in which the doctrine was applicable.  The case was remanded to the trial court to be evaluated under comparative negligence.

Comparative negligence limits the amount a plaintiff can recover by apportioning fault between the parties.  Rather than a complete bar to recovery under the doctrine of Assumption of Risk, comparative negligence, as applied in the Petruzella case, would mean that the plaintiff’s recovery is limited if the jury finds that he contributed to his injury.  As a general rule, depending on how this doctrine is applied in your jurisdiction, this is advantageous for plaintiffs.

Plaintiffs that suffer injuries during the course of participating in a contact sport may be barred from recovery if the defendant asserts the affirmative defense of Assumption of Risk.  For example, a hockey player that sustains injuries from a check, a trip, a puck, or any other contact may be barred from recovery because they assumed the risk of injury when they decided to participate in a contact sport.  In Kuehner v. Green, a case decided by the Florida Supreme Court in 1983, it held that “[i]f contact sports are to continue to serve a legitimate recreational function in our society express assumption of risk must remain a viable defense to negligence actions spawned from these athletic endeavors.”  There, the Court evaluated whether a plaintiff who was “injured as the result of a karate takedown maneuver executed by [the defendant] during a sparring exercise at [defendant’s] home” could recover from the defendant.  The Court explained that “[w]hen a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.”

If you have been injured, contact Bryan W. Crews, your Orland personal injury attorney.  Bryan W. Crews and his staff will evaluate your case, and work diligently on your behalf to protect your rights.

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