        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.

________________________________/

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




                                             2
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.




                                            4
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.




                                            4
