AGUSTIN CARVAJAL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RODOLFO CARVAJAL, A MINOR, FOR THE BENEFIT OF AGUSTIN CARVAJAL, INDIVIDUALLY, AND IRMINA CARVAJAL, APPELLANT,
v.
RAFAEL ALVAREZ, SR., ELVIRA ALVAREZ, RAFAEL ALVAREZ, JR., OSVALDO ALVAREZ, A MINOR, AND SOUTHEASTERN FIRE INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEES
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The court affirmed judgment for defendants in a wrongful death case, holding that a minor's assumption of risk in riding a horse in an allegedly dangerous manner barred recovery where the jury could properly conclude the conduct constituted an aberrant form of the sport.
A minor who engages in an aberrant form of horseback riding and voluntarily encounters the specific dangers that cause injury assumes the risk of those dangers as a matter of law.
[1] A minor's assumption of risk defense bars recovery in a horseback riding injury case where the minor engaged in an aberrant form of the sport and voluntarily encountered…
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Join FLexlaw to unlock all legal intelligenceA fifteen-year-old boy fell off a horse while riding in an allegedly dangerous fashion behind another rider on a single saddle. The trial court instru…
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SCHWARTZ, Chief Judge.
The plaintiff-appellant’s decedent, a fifteen year-old boy, fell off a horse as a result of riding in an allegedly dangerous fashion behind another rider on a single saddle. The sole point on appeal claims that the trial court improperly instructed the jury on the question of whether the boy had assumed the risk of injury so as to bar recovery. Since the jury could properly have concluded that his conduct constituted an “aberrant” form of the sport of horseback riding, the dangers of which the decedent voluntarily encountered and which were the very ones which caused the accident in question, we reject this contention. Gary v. Party Time Company, Inc., 434 So. 2d 338 (Fla. 3d DCA 1983); O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447-48 (Fla. 5th DCA 1982); Strickland v. Roberts, 382 So. 2d 1338 (Fla. 5th DCA 1980), review denied, 389 So. 2d 1115 (Fla.1980); see Kuehner v. Green, 436 So. 2d 78 (Fla.1983); Leahy v. School Board of Hernando County, 450 So. 2d 883 (Fla. 5th DCA 1984). The judgment under review entered for the defendants pursuant to the affirmative answer to the special interrogatory on that issue is therefore
Affirmed.1
. It is unnecessary to treat the appellees' contention on cross-appeal that they were entitled to a directed verdict on the ground that no breach of duty had been established as to any of the defendants.
FERGUSON, Judge
(specially concurring).
I agree with appellant that the act of riding double on a horse which only walked and trotted did not constitute aberrant behavior on the part of the deceased or his friend. I would reach the same result as the majority, however, for the reason set forth in the cross-appeal, i.e., that appellees breached no duty owed to the deceased.
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Luann Black v. Dist. Bd. of Trs. of Broward Cmty. Coll. Fla., 491 So. 2d 303 (Fla. 4th DCA 1986)…express assumption of risk to a variety of situations, including riding a “mechanical bull,” Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318 (Fla. 4th DCA 1984); horseback riding with another rider on a single saddle, Carvajal v. Alvarez, 462 So. 2d 1156 (Fla. 3d DCA 1984); knowingly diving into shallow water, Robbins v. Department of Natural Resources, 468 So. 2d 1041 (Fla. 1st DCA 1985); and racing horses professionally, Ashcroft v. Calder Race Course, Inc., 464 So. 2d 1250 (Fla. 3d DCA 1985). Alt…
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Ashcroft v. Calder Race Course, Inc., 464 So. 2d 1250 (Fla. 3d DCA 1985)…e danger complained of was not inherent in the activity). Furthermore, Ashcroft’s participation in the race did not involve any aberrant or intentional conduct on his part for which he might be held to have assumed the risk. See Carvajal v. Alvarez, 462 So. 2d 1156 (Fla. 3d DCA 1984) (assumption of risk instruction was proper where jury could have concluded that rider’s conduct constituted aberrant form of horseback riding); Strickland (plaintiff injured while engaging in aberrant form of water skiing expressl…
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Donaldson v. Cenac, 675 So. 2d 228 (Fla. 1st DCA 1996)…d 979 (Fla.1994) (cheerleader performing stunt without “spotters” did not expressly assume the risk of inadequate instruction and supervision and did not expressly agree to absolve school of its responsibility). The decision in Carvajal v. Alvarez, 462 So. 2d 1156 (Fla. 3d DCA 1984) (holding that risk of injury was expressly assumed by engaging in “aberrant” horseback riding — two persons in a saddle designed for one) cannot be reconciled with the view the supreme court later expressed in Mazzeo that “aberran…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- O'Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982)
- Kuehner v. Green, 436 So. 2d 78 (Fla. 1983)
- Strickland v. Roberts, 382 So. 2d 1338 (Fla. 5th DCA 1980)
- Leahy v. The Sch. Bd. OF Hernando Cnty., 450 So. 2d 883 (Fla. 5th DCA 1984)
- Gary v. Party Time Co., Inc., 434 So. 2d 338 (Fla. 3d DCA 1983)