Mazzeo v. City of Sebastian

526 So. 2d 1003, 13 Fla. L. Weekly 1406, 1988 Fla. App. LEXIS 2492, 1988 WL 59434
CourtDistrict Court of Appeal of Florida
DecidedJune 15, 1988
DocketNo. 87-1605
StatusPublished
Cited by1 cases

This text of 526 So. 2d 1003 (Mazzeo v. City of Sebastian) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mazzeo v. City of Sebastian, 526 So. 2d 1003, 13 Fla. L. Weekly 1406, 1988 Fla. App. LEXIS 2492, 1988 WL 59434 (Fla. Ct. App. 1988).

Opinions

DOWNEY, Judge.

This is a timely appeal from a final judgment in favor of the defendant/appellee, City of Sebastian (City), in an action for damages due to personal injuries sustained when the plaintiff/appellant, Mary Rose Mazzeo, dove from a platform into shallow .water in Swim Lake. The judgment was entered pursuant to a jury verdict which found that there was negligence on the part of the City, but also found that Maz-zeo knew of the existence of the shallow water, realized and appreciated the possibility of injury as a result of diving into the water, and, having had a reasonable opportunity to avoid it, voluntarily and deliberately exposed herself to the danger by diving into the water, thereby barring her recovery as a matter of law under the doctrine of express assumption of risk. Mazzeo also appeals from the trial court’s orders denying her motions to reinstruct the jury regarding assumption of risk, to interview a juror who had advised the clerk that the jury misunderstood the verdict and for a new trial based on the alleged jury confusion.

We hold that no error has herein been demonstrated by the appellate points presented. However, because of the importance of the point involving the doctrine of express assumption of risk we have treated that aspect of the case preparatory to certification to the Supreme Court of Florida.

The factual setting giving rise to this cause of action is a diving accident in Swim Lake, a public recreation park owned and operated by the City. The park contains an artificial lake with an island in the center that can be reached by walking through the water, along with playground equipment, a pavillion, various picnic tables and a wooden dock extending thirty-eight feet out onto the lake. The dock, which is elevated about two and one-half to three feet above the water, was built as a platform to enable people to walk out on the lake rather than for boating, since the lake is too shallow for boating activity. Although “no diving” signs were exhibited in various places from time to time by the City, people occasionally dove off of the dock.

On the date in question, Mazzeo, an experienced swimmer and diver, had been swimming at the point where the accident took place. She had also been seen standing in the water at the end of the dock and, thus, was well aware of the water’s depth. Her boyfriend was trying to teach Mazzeo’s young daughter how to dive, but the child was afraid and would only jump in. The boyfriend then importuned Mazzeo to dive in herself and show the child how to do it — but Mazzeo refused his repeated urgings because she said the water was not deep enough. Finally, Mazzeo agreed to show the child how to dive and, in doing so, broke her neck. At the time of the accident, a somewhat faded “no diving” sign was stenciled on the surface of the dock.

At the trial of this case, the court instructed the jury, among other things:

[1005]*1005On the first offense [sic] the issues for your determination are whether Mary Rose Mazzeo knew of the existence of the danger complained of, realized and appreciated the possibility of injury as a result of such danger, and having a reasonable opportunity to avoid it voluntarily and deliberately exposed herself to the danger complained of.
If the greater weight of the evidence supports the defense of the City of Sebastian then your verdict should be for the Defendant.

The jury returned a verdict in which it found that there was negligence on the part of the City that was the legal cause of Mazzeo’s injuries, but it also found that Mazzeo knew of the existence of the shallow water, realized and appreciated the possibility of injury as a result of diving into the water, and, having had a reasonable opportunity to avoid it, voluntarily and deliberately exposed herself to the danger by diving into the water. The verdict form apprised the jury that, if they found Maz-zeo fully realized the danger involved as set out above, their verdict should be for the City. From a judgment for the City and against Mazzeo the latter has appealed.

Mazzeo summarizes her appellate position in her brief as follows:

The supreme court has held that assumption of the risk has been merged into comparative negligence, except for an express contractual assumption of risk, or where consent is exhibited and relied on by participating in a contact sport. The contact sport exception is premised on Plaintiff’s consent to have other participants (who are relying on such consent) engage him in bodily contact which would be deemed tortious under other circumstances and which may injure him. That rationale is totally absent in this case. The City has never claimed to have relied on the Plaintiff assuming any particular risk. The Florida Supreme Court has not extended the doctrine any farther than the contact sport scenario and has most recently narrowed the doctrine in a premises liability case.

The City, on the other hand, contends that the supreme court did not intend to so delineate the holding of Kuehner v. Green, 436 So.2d 78 (Fla.1983), and cites to a number of district court cases, including one from this court, which support the City’s contention and extend the doctrine beyond contact sports and express contracts not to sue. We believe that this court has aligned itself with those cases supporting the City’s contention that express assumption of risk as a complete defense is not limited to contact sports or express contracts not to sue. Van Tuyn v. Zurich American Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984). Lest there be any doubt as to this court’s stance, we so align ourselves with that position at this time.

Another district court case very much on point is Robbins v. Department of Natural Resources, 468 So.2d 1041 (Fla. 1st DCA 1985), wherein a teenage plaintiff was paralyzed as a result of a shallow water dive in a public swimming area at Wekiva Springs State Park, operated by the Department of Natural Resources. From a final summary judgment in favor of the department based upon the doctrine of express assumption of risk, the First District reversed, holding the matter was not ripe for summary judgment. In doing so, the court stated:

Appellant urges not only that the defense of express assumption of risk was not properly before the court for summary judgment because not pled, but also that such defense cannot, as a matter of law, be implicated in a case such as this. We disagree with appellant on this point. If the evidence in this case were to be evaluated by a jury under the express assumption of risk criteria approved in Kuehner v. Green, 436 So.2d 78 (Fla.1983), the jury could find the following: (1) that the plaintiff had, in fact, upon his first entry into the water, become fully aware of the shallow depth of the water and the existence of the protruding rocks; (2) that he had been able to see the bottom clearly from the platform; and (3) that he subjectively recognized the risk, but nevertheless proceeded to [1006]*1006execute his dive. Such an aberrant form of participation in the recreational activity of diving would be an appropriate occasion for application of the defense of express assumption of risk, notwithstanding the fact that diving is, of course, not a contact sport and involves no other participants, Gary v. Party Time Co., Inc., 434 So.2d 338 (Fla. 3rd DCA 1983), and that no formal release, consent or waiver form was involved, Kuehner, supra.

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Related

Mazzeo v. City of Sebastian
550 So. 2d 1113 (Supreme Court of Florida, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
526 So. 2d 1003, 13 Fla. L. Weekly 1406, 1988 Fla. App. LEXIS 2492, 1988 WL 59434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mazzeo-v-city-of-sebastian-fladistctapp-1988.