The Daily

Assumption Of The Risk


In the Summer of 1985, I was just out of 1L and clerking at my Father’s office in Ft. Lauderdale. My first assignment involved reading depositions in the case of an amateur boxer being maintained on life support after an AAU bout in Miami. The allegation was that the bout had been negligently staged without sufficient medical support. Head gear was made mandatory immediately after the bout for all AAU fights. Our young man had been left alone in the locker room after an extended and brutal beating and had fallen off a table unconscious where he was left unfound and unattended for a long period of time. He never regained consciousness and remained on life support throughout the case and for the rest of his life.

In my first year of law school, we’d already covered Torts – the famous hornbook on the subject written by Prosser. Discussing the concepts of consent and the legal defense of “assumption of the risk”, Prosser wrote,

In the field of negligence, this policy has been given effect by the doctrine of assumption of risk, which relieves the defendant of the obligation to exercise care. As to intentional invasion of the plaintiff’s interests, his consent negatives the wrongful element of the defendant’s act, and prevents the existence of a tort. “The absence of lawful consent,” said Mr. Justice Holmes “is part of the definition of assault.” … One who enters a sport, game or contest maybe taken to consent to physical contacts consistent with the understood rules of the game.

The express example, I was taught, was a boxer: by entering the ring, he was consenting to physical violence and the consequences that flow from it.

I took my notes, file materials and research into my Father’s office. I even brought my Hornbook. I explained why the case couldn’t stand and ought to be resolved quickly before it was thrown out of court. I might have added, “You can’t do this.”

My Father listened patiently, waiting for me to finish. Then, he pushed my materials back across the desk to me and said,

“Watch me.”

Your lawyer’s skills and judgment are critical to the outcome of your case. In the next weekly blog, we return to the recent Supreme Court decision in Charles v. Baptist Hospital and how this lesson informs that result and its implications for Florida law.