ROBERT T. DEPEW, D/B/A JET SLIDE COMPANY, APPELLANT,
v.
JOHN M. SYLVIA, APPELLEE
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A plaintiff injured while riding a Jet Slide amusement device appealed a jury verdict finding the operator liable. The appellate court affirmed the judgment, holding that the assumption of risk doctrine did not apply because the plaintiff was unfamiliar with the device and could not have fully appreciated the particular risks involved.
The doctrine of assumption of risk does not apply because the plaintiff had never seen such a device before and was unfamiliar with its operation. Merely having subjective fears while proceeding does not constitute clear knowledge and appreciation of the particular risk or danger required for assumption of risk.
[1] The doctrine of assumption of risk requires a clear showing that the injured party knew and appreciated the specific risk or danger involved.
[2] A plaintiff's fear of an amusement ride, coupled with a desire not to appear fearful to children, does not automatically establish assumption of risk.
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Join FLexlaw to unlock all legal intelligence“The doctrine of assumption of risk cannot be invoked unless it is clearly shown that the particular risk or danger shall have been known and appreciated by the person injured.”
Establishes the legal standard for assumption of risk—requires actual knowledge and appreciation of the specific risk, not mere subjective fear.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff purchased tickets and rode a Jet Slide amusement device at a Pensacola Beach location. While ascending the stairs, plaintiff observed th…
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Appellant-defendant appeals a final judgment entered upon a jury verdict in favor of appellee-plaintiff for injuries sustained while riding appellant’s “Jet Slide.”
By this appeal, appellant contends: (1) The trial court erred in not directing a verdict for appellant on the doctrine of assumption of risk, and (2) appellant was entitled to a charge on the doctrine of assumption of risk.
Pertinent facts are: Appellee with his wife and two children registered at a Pensacola Beach motel while on vacation; during the evening they traveled to the area of an amusement device known as a Jet Slide; Sylvia purchased tickets for himself and his children for the Jet Slide ride; they moved with the crowd of prospective riders toward a several-tiered stairway leading to the top of the slide; at the bottom of the stairs Sylvia picked up a burlap sack which was provided by appellant for use on the slide; about halfway up the stairs Sylvia observed that the slide looked “mighty high” and testified about his feelings at this point in the ascent as follows: “I had never been on anything like this before, and it was a little unfamiliar to me, but I saw all those people going up, so I guess I didn’t want to show the kids I was chicken, I wasn’t going to turn around and go back down. I went on up to the top.” Upon reaching the top, Sylvia crawled into the burlap sack (as he observed others doing) and began the descent. While descending, Sylvia had the sensation of “lifting off” between the inclines; he did not know of any way to slow himself; as he approached the second incline, he became airborne and then dropped about four feet to a tremendous jarring on his buttocks. Sylvia sustained a fracture and a 40% compression of the intervertebral disk space between T-12 and L-l.
The doctrine of assumption of risk cannot be invoked unless it is clearly shown that the particular risk or danger shall have been known and appreciated by the person injured. The uncontroverted testimony here is that Sylvia had never seen a device of this type prior to his riding upon same and was unfamiliar with its operation. Appellant insists that since Sylvia testified as to his own fears of using the slide and that he would have walked down except that he did not want his children to think him “chicken,” this presents a clear *77case of assumption of risk. We do not agree. An amusement device is designed to provide thrills without providing injury. The owner of the slide put wax on it to make it slide faster and Comet to slow it down. The doctrine of assumption of risk was not available to appellant.
The judgment appealed is affirmed.
CARROLL, DONALD K., Acting C. J., and JOHNSON, J., concur.
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O'Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982)…ave been known and appreciated by the person injured: The doctrine of assumption of risk cannot be invoked unless it is clearly shown that the particular risk or danger shall have been known and appreciated by the person injured. De Pew v. Sylvia, 265 So. 2d 75, 76 (Fla. 1st DCA 1972). See also Bartholf v. Baker, 71 So. 2d 480 (Fla.1954); Restatement of the Law of Torts, Second, § 496D. This court has recognized the viability of the defense of express assumption of risk as a bar to recovery in sport situat…
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Sabina van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984)…ry to any finding of express assumption of risk is a showing that the particular risk was known or should have been known and appreciated by the person injured. O’Connell v. Disney World Co., 413 So. 2d 444, 448 (Fla. 5th DCA 1982); DePew v. Sylvia, 265 So. 2d 75, 76 (Fla. 1st DCA 1972); See also Bartholf v. Baker, 71 So. 2d 480 (Fla.1954); Restatement of the Law of Torts, Second, § 496D. For express assumption of risk to be valid, either by contract or by voluntary participation in an activity, it must be…
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Donaldson v. Cenac, 675 So. 2d 228 (Fla. 1st DCA 1996)…ry to any finding of express assumption of risk is a showing that the particular risk was known or should have been known and appreciated by the person injured. O’Connell v. Disney World Co., 413 So. 2d 444, 448 (Fla. 5th DCA 1982); DePew v. Sylvia, 265 So. 2d 75, 76 (Fla. 1st DCA 1972); See also Bartholf v. Baker, 71 So. 2d 480 (Fla.1954); Restatement of the Law of Torts, Second, § 496D. For express assumption of risk to be valid, either by contract or by voluntary participation in an activity, it must be…