## Facts

- Three negligence actions were consolidated to resolve whether assumption of risk remained a complete defense after Florida adopted comparative negligence.
- In one case, a minor passenger was injured when a negligently operated dune buggy overturned.
- In another, a plaintiff was injured in a fall from a negligently operated truck.
- In a third, a bicyclist was injured while attempting to avoid holes in a driveway allegedly left unfilled by a defendant.
- Defendants in the actions raised assumption of risk as a defense to plaintiffs’ claims.

## Issues

1. After adoption of comparative negligence, whether implied assumption of risk remains a separate, complete bar to recovery in negligence actions.
2. Whether categories often described as “primary” and “secondary” assumption of risk should continue to operate as distinct doctrines or be handled through duty/breach analysis and comparative fault.

## Decision

- The Supreme Court of Florida exercised conflict certiorari jurisdiction to resolve inconsistent district court rulings on assumption of risk after comparative negligence.
- The court held that implied assumption of risk, particularly “secondary” assumption of risk, is no longer a separate, complete bar to recovery.
- The court ruled that implied assumption of risk is merged into comparative negligence and is addressed through apportionment of fault rather than an all-or-nothing defense.
- The court left express assumption of risk (typically a contractual or explicit waiver) conceptually distinct and not abolished by its ruling.
- The court explained that so-called “primary” assumption of risk is adequately handled within ordinary negligence principles concerning duty and breach.

## Legal Principles

- Under comparative negligence, plaintiff conduct that would previously have been characterized as implied assumption of risk is weighed in allocating fault and does not automatically preclude recovery.
- “Primary assumption of risk” generally reflects absence of duty or absence of breach and is not an independent affirmative defense separate from negligence analysis.
- “Secondary assumption of risk” functions as an affirmative defense to an established breach of duty; in its implied form, it is treated as comparative negligence rather than a complete defense.
- Express assumption of risk may remain a distinct defense when a plaintiff expressly agrees to accept specified risks, subject to ordinary limits on enforceability.

## Conclusion

Florida law treats implied (secondary) assumption of risk as part of comparative negligence, eliminating its use as a complete bar to recovery while preserving express waivers and addressing “primary” risk concepts through duty and breach.


Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977)