IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
THOMAS PETRUZZELLA AND
JUDY PETRUZZELLA,
Appellants,
v. Case No. 5D16-2877
CHURCH ON THE ROCK OF PALM COAST, INC.,
Appellee.
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Opinion filed May 19, 2017
Appeal from the Circuit Court
for Flagler County,
Scott C. Dupont, Judge.
Frederick C. Morello, of Frederick C.
Morello, P.A., Daytona Beach, for
Appellants.
Paul M. Eza and Michael L. Glass, of
Stone, Glass & Connolly, LLP,
Jacksonville, for Appellee.
PER CURIAM.
Thomas and Judy Petruzzella, husband and wife plaintiffs below, timely appeal a
final summary judgment in favor of Church on the Rock of Palm Coast, Inc., defendant
below. The Petruzzellas contend that the trial court improperly applied the express
assumption of the risk doctrine in granting a summary judgment to the property owner in
this trip and fall negligence case. We agree and reverse.
Thomas Petruzzella was a volunteer musician drummer and member of the
Church on the Rock of Palm Coast, Inc. In May of 2011, he tripped on the bass player’s
unsecured cord and fell off the stage during a rehearsal. As a result of the fall, he
sustained substantial injuries. The Petruzzellas filed suit against the property owner
alleging that the Defendant was negligent for failing to maintain the premises in a
reasonably safe condition; that the Defendant failed to correct a dangerous condition
which the Defendant either knew or should have known of by using reasonable care, and
his wife Judy Petruzzella’s claim for loss of consortium. The Defendant answered the
complaint by generally denying the allegations of negligence and raised the affirmative
defense of contributory negligence on the part of Mr. Petruzzella. Discovery in the case
revealed that Mr. Petruzzella had been a member of the church since 2008 and, beginning
in 2009, served as a member of the Church’s Praise Group. He performed on the
Church’s stage, either in rehearsal or during a service at least three to four times a week
and, as a result, he was familiar with the various cords attached to the instruments that
would be unsecured. Discovery further revealed that no person other than Mr. Petruzzella
had ever been involved in any accident causing injury due to the cords being unsecured.
The Defendant moved for summary judgment, arguing that "[s]ummary judgment
must be granted in favor of Defendant because Plaintiff Thomas Petruzzella knew of the
alleged dangerous condition and willfully accepted the risk", asserting "[t]he condition
itself was not concealed, but was open and obvious", that "Defendant breached no duty
to Plaintiffs because Plaintiff Thomas Petruzzella's injuries were not in fact caused by any
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of Blackburn v. Dorta, 348 So. 2d. 287 (Fla. 1977), and more recently, in Mazzeo v. City
of Sebastian, 550 So. 2d 1113 (Fla. 1989), the Florida Supreme Court specifically
discussed the continuing viability of the doctrine of assumption of risk following the rule
of comparative negligence and whether the doctrine should be expanded beyond express
contracts not to sue and injuries resulting from contact sports. The Court specifically
found that the doctrine of express assumption of the risk should not be expanded beyond
express contracts not to sue and injuries resulting from contact sports, that conduct
characterized as implied secondary assumption of risk, which is unreasonable in nature,
should be evaluated by the jury under the principles of comparative negligence. Mazzeo,
550 So. 2d at 1114-17. Here, given that no express contract or contact sport is involved,
Mr. Petruzzella's conduct of repeatedly walking across a stage with unsecured electrical
cords on it is properly characterized as an implied assumption of risk that must be
evaluated by the jury under principles of comparative negligence. Accordingly, the
summary judgment in favor of the Defendant, Church on the Rocks of Palm Coast, Inc.,
is reversed, and the matter is remanded for further proceedings consistent with this
opinion.
REVERSED and REMANDED.
EVANDER and LAMBERT, JJ., and JACOBUS, B.W., Senior Judge, concur.
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of Blackburn v. Dorta, 348 So. 2d. 287 (Fla. 1977), and more recently, in Mazzeo v. City
of Sebastian, 550 So. 2d 1113 (Fla. 1989), the Florida Supreme Court specifically
discussed the continuing viability of the doctrine of assumption of risk following the rule
of comparative negligence and whether the doctrine should be expanded beyond express
contracts not to sue and injuries resulting from contact sports. The Court specifically
found that the doctrine of express assumption of the risk should not be expanded beyond
express contracts not to sue and injuries resulting from contact sports, that conduct
characterized as implied secondary assumption of risk, which is unreasonable in nature,
should be evaluated by the jury under the principles of comparative negligence. Mazzeo,
550 So. 2d at 1114-17. Here, given that no express contract or contact sport is involved,
Mr. Petruzzella's conduct of repeatedly walking across a stage with unsecured electrical
cords on it is properly characterized as an implied assumption of risk that must be
evaluated by the jury under principles of comparative negligence. Accordingly, the
summary judgment in favor of the Defendant, Church on the Rocks of Palm Coast, Inc.,
is reversed, and the matter is remanded for further proceedings consistent with this
opinion.
REVERSED and REMANDED.
EVANDER and LAMBERT, JJ., and JACOBUS, B.W., Senior Judge, concur.
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