CLIFFORD R. KUEHNER, APPELLANT,
v.
HENRY MICHAEL GREEN, INDIVIDUALLY, AND THE AETNA CASUALTY & SURETY COMPANY, A CONNECTICUT CORPORATION, APPELLEES
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Kuehner appeals from a judgment denying recovery for injuries sustained during karate sparring when his partner Green performed a leg sweep that caused him to fall. The court affirms the judgment based on express assumption of risk but certifies to the Florida Supreme Court the question of whether express assumption of risk absolutely bars recovery in contact sports.
Express assumption of risk remains an absolute bar to recovery in this case. The court affirmed the judgment for Green based on the jury's finding that Kuehner expressly assumed the risk of leg sweeps during karate practice.
[1] Express assumption of risk, as a contractual concept, may serve as an absolute bar to recovery in tort actions.
[2] Participation in a contact sport can constitute express assumption of risk, barring recovery for injuries sustained during the sport.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It should be pointed out that we are not here concerned with express assumption of risk which is a contractual concept outside the purview of this inquiry, and upon which we express no opinion. . . . Included within the definition of express assumption of risk are express contracts not to sue for injury or loss which may thereafter be occasioned by the covenantee's negligence as well as situations in which actual consent exists, such as where one voluntarily participates in a contact sport.”
From Blackburn v. Dorta, establishing that express assumption of risk is contractual and includes voluntary participation in contact sports; the Supreme Court declined to rule on whether it bars recovery.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKuehner and Green were karate sparring partners practicing together. During a practice session on a concrete floor, Green performed a leg sweep that c…
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SHARP, Judge.
Kuehner appeals from a final judgment denying him any recovery from Green, his karate “sparring” partner, for injuries Kuehner sustained when he fell as a result of a “leg sweep”1 performed by Green during a practice session. The case was tried before a jury which found Kuehner and Green both 50% responsible for the injuries. It also answered in the affirmative a special interrogatory establishing the defense of express assumption of risk.2 On the basis of Blackburn v. Dorta, 348 So. 2d 287 (Fla.1977), the trial court entered a final judgment for Green. We affirm, but certify the issue of whether or not Green’s defense of assumption of risk absolutely bars Keuh-ner’s recovery.
In Blackburn v. Dorta, the Florida Supreme Court ruled that the defense of “implied” assumption of risk, like contributory negligence, would no longer completely bar a plaintiff’s recovery in tort on the new litigation field of comparative negligence. However, with regard to “express” assumption of risk, the court refused to express any opinion:
It should be pointed out that we are not here concerned with express assumption of risk which is a contractual concept outside the purview of this inquiry, and upon which we express no opinion. . . . Included within the definition of express assumption of risk are express contracts not to sue for injury or loss which may thereafter be occasioned by the covenantee’s negligence as well as situations in which actual consent exists, such as where one voluntarily participates in a contact sport.
348 So. 2d at 290. On the basis of this dicta, we have held that express assumption of risk remains an absolute bar to recovery. Strickland v. Roberts, 382 So. 2d 1338 (Fla. 5th DCA 1980).
Kuehner argues that the jury’s finding that he was aware of the danger of “leg sweeps” in karate practice and that he voluntarily assumed the risks of injury resulting therefrom is not supported by the evidence. We have reviewed the record, and find there is conflicting testimony as to whether “leg sweeps” should be done on concrete floors, as occurred here, and whether Kuehner realized Green might “sweep” him without catching him, in the practice session. The conflict was resolved against Kuehner by the jury and we cannot interfere with its conclusion.3 This finding, for purposes of this case, established Green’s defense of express assumption of risk. See Bartholf v. Baker, 71 So. 2d 480 (Fla.1954); Alexander v. 50th St. Heights Co., 324 So. 2d 161 (Fla. 3d DCA 1976). Further, the testimony did not indicate that Green willfully or deliberately harmed Kuehner, or that the leg sweep was performed in violation of recognized or formal karate rules designed to protect the participants.4
Accordingly, we affirm the lower court, but certify the following question to the Florida Supreme Court, pursuant to Article V, Section 3(b)(4), Florida Constitution as a matter of great public importance:
DOES EXPRESS ASSUMPTION OF RISK ABSOLUTELY BAR A PLAINTIFF’S RECOVERY WHERE HE ENGAGES IN A CONTACT SPORT WITH ANOTHER PARTICIPANT WHO INJURES HIM WITHOUT DELIBERATE ATTEMPT TO INJURE? AFFIRMED and QUESTION CERTIFIED.
DAUKSCH, C. J., and ORFINGER, J., concur. . Green caught Kuehner’s right foot in mid-air and swept Kuehner’s left leg from under him, causing Kuehner to fall backwards.
. The jury answered a special interrogatory that Kuehner did “know of the existence of the danger complained of, realize and appreciate the possibility of injury as a result of such danger; and, having a reasonable opportunity to avoid it, voluntarily and deliberately exposed himself to the danger complained of.”
. Williston v. Cribbs, 82 So. 2d 150 (Fla.1955); Keith v. Amrep Corp., 312 So. 2d 234 (Fla. 1st DCA 1975).
.See McAdams v. Windham, 208 Ala. 492, 94 So. 742 (1922); Tavernier v. Maes, 242 Cal.App.2d 532, 51 Cal.Rptr. 575 (1966); Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E. 2d 258 (1975); Griggas v. Clauson, 6 Ill.App.2d 412, 128 N.E. 2d 363 (1955); Bourque v. Duplechin, 331 So. 2d 40 (La.App.), cert. denied, 334 So. 2d 210 (La.1976); Averill v. Luttrell, 44 Tenn.App. 56, 311 S.W. 2d 812 (1957); Restatement (Second) of Torts § 496B, Comments a, d (1965).
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O'Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982)…may thereafter be occasioned by the covenantee’s negligence, as well as situations in which actual consent exists such as where one voluntarily participates in a contact sport. Blackburn v. Dorta, 348 So. 2d 287, 290 (Fla.1977). . Kuehner v. Green, 406 So. 2d 1160 (Fla. 5th DCA 1981); Strickland v. Roberts, 382 So. 2d 1338 (Fla. 5th DCA 1980).…
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Kuehner v. Green, 436 So. 2d 78 (Fla. 1983)…ADKINS, Justice. This cause comes before us on certification from the District Court of Appeal, Fifth District, as a matter of great public importance. Kuehner v. Green, 406 So. 2d 1160 (Fla. 5th DCA 1981). Our jurisdiction vests under article Y, section 3(b)(4), Florida Constitution. Petitioner Kuehner, plaintiff in the trial court, brought a negligence action against respondent Green, defendant in the trial court, in the Circuit…
Authorities Cited
- Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977)
- Bartholf v. Baker, 71 So. 2d 480 (Fla. 1954)
- City OF Williston v. Cribbs, 82 So. 2d 150 (Fla. 1955)
- Strickland v. Roberts, 382 So. 2d 1338 (Fla. 5th DCA 1980)
- Alexander v. Fiftieth Street Heights, 334 So. 2d 161 (Fla. 3d DCA 1976)
- Keith v. Amrep Corp., 312 So. 2d 234 (Fla. 1st DCA 1975)