Herbert B. Harrison and Alice Harrison v. Holiday Inns, Inc. , 554 F.2d 259 ( 1977 )

554 F.2d 259

Herbert B. HARRISON and Alice Harrison, Plaintiffs-Appellants,
v.
HOLIDAY INNS, INC., et al., Defendants-Appellees.

No. 75-2921.

United States Court of Appeals,
Fifth Circuit.

July 27, 1977.

Donald P. Bogard, Indianapolis, Ind., John E. Roberts, Marianna, Fla., for plaintiffs-appellants.

Julius F. Parker, Jr., Tallahassee, Fla., for Holiday Inn and Wilson.

James C. Truett, Tallahassee, Fla., Richard Smoak, Panama City, Fla., for Gulf States Enterprises and Rogers.

Before JONES, COLEMAN and TJOFLAT, Circuit Judges.

PER CURIAM:

1

The instant case raised questions regarding the continued vitality of the doctrine of assumption of risk in the State of Florida. The trial court granted defendants' motions for summary judgment holding, inter alia, that the defense of assumption of risk was still viable as a complete bar to recovery.

2

On May 5, 1977, the Supreme Court of Florida for the first time expressly resolved this issue,1 holding that:

3

(T)he affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence enunciated in Hoffman v. Jones (280 So.2d 431 (Fla.1973)) shall apply in all cases where such defense is asserted. Blackburn v. Dorta, 348 So.2d 287 (Fla.1977).

4

Accordingly, the final judgment is VACATED and this case is REMANDED to the trial court for proceedings in light of Blackburn v. Dorta, supra.

5

VACATED and REMANDED.

1

The issue was before the Court under its conflict certiorari jurisdiction. Among the cases consolidated for review was Dorta v. Blackburn, 302 So.2d 450 (Fla.3d DCA 1974), the case relied upon by the trial court herein