Petruzzella v. Church on the Rock of Palm Coast, Inc.
219 So. 3d 239
| Fla. Dist. Ct. App. | 2017Background
- Thomas Petruzzella, a long-time volunteer drummer for Church on the Rock, regularly performed on the church stage multiple times per week and was aware of unsecured instrument cords on the stage.
- In May 2011, Petruzzella tripped on an unsecured bass-player cord during rehearsal, fell off the stage, and sustained substantial injuries.
- Plaintiffs sued the church for negligence: failure to maintain premises in a reasonably safe condition and failure to correct a dangerous condition; Judy Petruzzella asserted loss of consortium.
- Defendant generally denied negligence, plead contributory negligence as an affirmative defense in its answer, and later moved for summary judgment arguing the danger was open and obvious; in its reply the defendant asserted express assumption of the risk.
- The trial court granted summary judgment for the church, finding Mr. Petruzzella had repeatedly and expressly assumed the risk by continuing to perform on the stage despite knowing of the unsecured cords.
- The appellate court reversed, holding the trial court misapplied express assumption of the risk and that the volunteer’s conduct is an implied assumption of risk matter for the jury under comparative negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper based on assumption of risk | Petruzzella argued case alleges failure to maintain premises; open-and-obvious does not negate duty to maintain; no express assumption alleged | Church argued danger was open and obvious and that plaintiff had willfully accepted the risk (express assumption) | Reversed: express assumption inapplicable; issue characterized as implied assumption of risk for jury under comparative negligence |
| Whether defendant may rely on express assumption of risk raised in a reply brief | Plaintiffs noted assumption of risk is an affirmative defense that must be pled in the answer | Defendant asserted express assumption in its reply and at hearing | Court noted assumption of risk must be pled; defendant did not plead it properly; reliance on reply insufficient |
| Whether repeated awareness of danger converts conduct to express assumption | Petruzzella contended continued performances do not create an express contract not to sue | Church claimed repeated, knowing exposure amounted to express acceptance of risk | Court held repeated exposure is implied, not express, assumption of risk; jury should assess under comparative negligence |
| Whether open-and-obvious condition negates owner's duty to maintain | Petruzzella argued open-and-obvious may negate duty to warn but not duty to maintain | Church argued no similar past injuries and condition was open and obvious, negating liability | Court agreed open-and-obvious does not resolve implied-assumption/comparative-negligence issue on summary judgment; triable issue remains |
Key Cases Cited
- Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977) (discusses assumption of risk and its limits after adoption of comparative negligence)
- Mazzeo v. City of Sebastian, 550 So. 2d 1113 (Fla. 1989) (refuses expansion of express assumption of risk beyond express waivers and sports; directs implied assumption be assessed under comparative negligence)