Assumption of the risk is a common defense used by many defendants in Florida personal injury cases. When it applies, the doctrine prevents a plaintiff from pursuing a claim against a defendant if the plaintiff was engaging in a dangerous activity for which the risks were known. For example, a football player may be prevented from suing another player based on injuries received on the field because the injured player likely knew the risks involved with playing football but continued to play nonetheless.
In Florida, strict assumption of the risk is very limited. In fact, pursuant to a recent case decided earlier this year, the doctrine only applies when there is an express contract not to sue or in the context of contact sports. That being said, the doctrine of assumption of the risk can still work against a Florida personal injury plaintiff because a jury can take a plaintiff’s assumption of the risks involved in an activity into account when determining the relative fault of each party.
A recent case illustrates how courts apply the assumption of the risk doctrine. While Florida’s law is different from that applied in the case, the case is still instructive to Florida personal injury plaintiffs because the division of fault between the plaintiff and the defendant is an issue for the jury to determine.
The Facts of the Case
The plaintiffs were the parents of a college student who was on a study abroad trip to Costa Rica. Prior to leaving for the trip, school administrators asked the students if they were good swimmers, and the plaintiffs’ son responded that he was. The plaintiffs’ son also signed a release waiver, stating that he would not sue due to the university’s negligence.
While on the trip, the plaintiffs’ son drowned while swimming in the ocean. The plaintiffs filed a wrongful death case against the university, claiming that it was grossly negligent in allowing the students to swim unsupervised at the beach.
The university argued that the plaintiffs’ son assumed the risk of any injury, knowing the risks that were involved with swimming in the open waters. The court agreed, dismissing the lawsuit as a matter of law.
As noted above, Florida law is different as it pertains to assumption of the risk in this context. In Florida, it is likely that the plaintiffs’ case against the university would not have been dismissed at this early stage, at least not under this reasoning. Instead, the case would likely proceed to trial, where the university would be able to argue to the jury that the plaintiff assumed the risk of injury. If the jury was persuaded, it would be free to apportion fault accordingly.
Have You Lost a Loved One in a Florida Accident?
If you have recently lost a loved one in a Florida accident, you may be entitled to compensation through a Florida wrongful death lawsuit. The skilled personal injury and wrongful death attorneys at the law firm of Friedman, Rodman & Frank have extensive experience assisting those who have lost loved ones due to the negligent acts of others. Call 877-448-8585 to schedule a free consultation with a dedicated South Florida injury attorney to discuss your case today.
More Blog Posts:
Establishing Causation in South Florida Car Accidents, South Florida Personal Injury Lawyers Blog, published August 24, 2017.
Who Is Responsible in Florida When Someone Causes an Accident Using a Borrowed or Stolen Car?, South Florida Personal Injury Lawyers Blog, published August 10, 2017.