Mazzeo v. City of Sebastian
550 So.2d 1113, 1989 WL 128591 (1989)
Rule of Law:
The doctrine of express assumption of risk in Florida is narrowly limited to explicit contractual agreements not to sue or to inherent, known risks in contact sports where participants implicitly waive liability, and it does not extend to general activities where a person merely appreciates a danger and voluntarily participates; such conduct falls under comparative negligence principles.
Facts:
- Mary Rose Mazzeo dove off a platform into Swim Lake, an artificial lake located in a municipal park operated by the City of Sebastian.
- Swimming was permitted in Swim Lake, but no lifeguards were provided, and the water where Mazzeo dove was between three and four feet deep.
- The City of Sebastian was aware that from time to time, persons dove off the platform into the lake.
- Although the City of Sebastian had periodically posted "no diving" signs, on the day of the accident, these signs were gone, with only a faded, stenciled "no diving" warning visible on the surface of the dock.
- Mazzeo, an experienced swimmer, dove off the platform with the intention of demonstrating correct diving form to her young daughter, including placing her hands over her head for protection.
- There was conflicting testimony regarding Mazzeo's specific awareness of the water depth, but the jury found that Mazzeo knew of the existence of the shallow water, realized and appreciated the possibility of injury as a result of diving, and voluntarily and deliberately exposed herself to the danger by diving.
Procedural Posture:
- Mary Rose Mazzeo brought a negligence action against the City of Sebastian in the Circuit Court of Indian River County for maintaining a dangerous condition in a public park and for failure to warn.
- A jury found negligence on the part of the city but also concluded that Mazzeo had assumed the risk.
- The Circuit Court of Indian River County entered judgment for the City of Sebastian, concluding that Mazzeo's recovery was barred under the doctrine of assumption of the risk.
- The Fourth District Court of Appeal affirmed the judgment of the circuit court in a split decision.
- The Fourth District Court of Appeal certified the case to the Supreme Court of Florida as a matter of great public importance.
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Issue:
Is the doctrine of express assumption of risk restricted to express contracts not to sue and contact sports, or does it also include other activities in which a person, fully appreciating the danger inherent in the activity, voluntarily and deliberately participates in the activity?
Opinions:
Majority - Grimes, Justice
No, the doctrine of express assumption of risk is restricted to express contracts not to sue and contact sports, and does not encompass other activities where a person merely appreciates a danger and voluntarily participates. The Court reaffirmed its decision in Blackburn v. Dorta, which merged all forms of implied assumption of risk (both primary and secondary) into the defense of comparative negligence. The Blackburn decision explicitly carved out express assumption of risk as a contractual concept or one applicable to situations of actual consent in contact sports, where participants inherently waive liability for risks integral to the activity. The Court clarified that this exception is narrow, intended to protect other participants from unwarranted liability for injuries due to bodily contact inherent in contact sports, as recognized in Kuehner v. Green. It rejected the expansion of express assumption of risk to include "aberrant conduct in noncontact sports" or general situations where a plaintiff merely appreciates a danger and voluntarily participates, characterizing such conduct as implied secondary assumption of risk, which, under Blackburn, must be evaluated by the jury under principles of comparative negligence. The Court acknowledged Mazzeo's "foolhardy conduct" but noted she did not intend to injure herself or expressly agree to absolve the city of liability. Therefore, Mazzeo's conduct should have been analyzed under comparative negligence principles, not as a complete bar to recovery under express assumption of risk.
Concurring in part and dissenting in part - McDonald, Justice
Justice McDonald agreed with the majority that the doctrine of assumption of risk, as defined, did not apply to the facts of this case. However, he dissented from the decision to quash the lower court's judgment and remand for a new trial. He argued that any alleged negligence by the City of Sebastian, such as the failure to post readable "no diving" signs or the presence of the pier over shallow water, was not the legal cause of Mazzeo's injury. He contended that Mazzeo's intentional conduct of diving, despite knowing both the depth of the water and that it was unsafe to dive, broke the nexus between any claimed negligence by the city and her injuries. Therefore, he would have approved the judgment for the city, concluding that there was no legal cause linking the city's actions to the injury.
Analysis:
This case significantly clarifies and narrows the application of the express assumption of risk doctrine in Florida, reinforcing the preeminence of comparative negligence as the primary framework for allocating fault. By strictly limiting express assumption of risk to contractual waivers or inherent risks in contact sports, the court prevents defendants from using the doctrine to completely bar recovery in situations where a plaintiff's conduct, though risky, should instead lead to a reduction in damages through comparative fault. This decision ensures that even "foolhardy" behavior does not automatically preclude recovery if a defendant was also negligent, thereby promoting a more equitable proportional allocation of fault rather than an all-or-nothing outcome. It underscores that merely knowing of a danger and choosing to proceed does not, by itself, constitute an express assumption of risk.
