FRANK GULEWICZ, INDIVIDUALLY AND FRANK GULEWICZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EMILY GULEWICZ, DECEASED, APPELLANT,
v.
PETER CZIESLA AND BRIDGETTE CZIESLA, HIS WIFE, SECURITY INSURANCE COMPANY OF HARTFORD, AND THE CITY OF ST. PETERSBURG, FLORIDA, APPELLEES
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Appellant Gulewicz sought damages for personal injuries and wrongful death arising from an apartment fire, alleging the City of St. Petersburg negligently enforced safety codes by allowing smoke detectors instead of fire-resistant doors. The lower court granted summary judgment for the city, and the appellate court affirmed, holding that the city had discretion in code enforcement and that the late-submitted expert affidavit did not warrant rehearing.
The court affirmed the summary judgment and the denial of the motion for rehearing, finding no error in the original judgment and no abuse of discretion in denying rehearing for failure to submit the expert affidavit prior to the original hearing absent exigent circumstances.
[1] A municipality is permitted a certain amount of discretion in the enforcement of safety codes, and the substitution of safety measures is not improper or negligent unless…
[2] A motion for rehearing may be denied for failure to assert exigent circumstances excusing the failure to submit an expert affidavit at or prior to the original hearing on…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the city was permitted a certain amount of discretion in the enforcement of safety codes and that the substitution of smoke detectors was not shown to be an improper or negligent exercise of that discretion”
Establishes the basis for summary judgment—that discretionary enforcement of safety codes shields the city from liability absent a showing of improper exercise.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA fire occurred in an apartment building in St. Petersburg, injuring Gulewicz and causing the death of his wife. The building had been permitted to in…
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OTT, Judge.
Appellant appeals from the lower court’s order granting summary judgment to appellee and the lower court’s order denying appellant’s motion for rehearing. We affirm.
Appellant filed a complaint for personal injury and for the wrongful death of his wife which arose out of a fire in their apartment building. The appellee/City of St. Petersburg was named as a defendant due to an allegation that a city safety inspector had negligently allowed the apartment building to meet city safety codes. Appellant alleged that the building was allowed to have installed smoke detectors rather than being required to enclose the stairwells with fire resistant doors.
The lower court granted the city’s motion for summary judgment on the basis that the city was permitted a certain amount of discretion in the enforcement of safety codes and that the substitution of smoke detectors was not shown to be an improper or negligent exercise of that discretion.
Thereafter, appellant filed a motion to rehear the city’s motion for summary judgment.1
Attached to appellant’s motion for rehearing was an affidavit of a qualified expert in fire safety. The affidavit was to the effect that the city had improperly or negligently exercised its discretion because the use of smoke detectors in lieu of fire resistant doors was contrary to accepted practices in the field of fire safety.2 The lower court denied appellant’s motion for rehearing for failure to assert exigent circumstances excusing the failure to submit the expert’s affidavit at or prior to the original hearing on the motion for summary judgment. The court cited as authority for this proposition this court’s holding in Willis v. L. W. Foster Sportswear Co., Inc., 352 So. 2d 922 (Fla. 2d DCA 1977).
Appellant contends that a Fourth District case, namely, Hatmaker v. Advance Mortgage Corp., 351 So. 2d 728 (Fla. 4th DCA 1977) is a better reasoned opinion on the same point of law. Our examination of Hatmaker does not, in our opinion, necessarily indicate conflict, but even if there is we are not persuaded to recede from our decision in Willis under the statement of facts presented in this case.
In the absence of the late affidavit we find no error in the original summary judgment nor do we find any abuse of discretion in the order denying the motion for rehearing.
HOBSON, Acting C. J., and SCHEB, J., concur. . By this stage, appellant had retained new counsel.
. An affidavit by the same expert to like effect had been filed in a companion case prior to the date of the hearing on the city’s motion for summary judgment.
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Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164 (Fla. 5th DCA 1980)…judgment, we now recede from that holding and align ourselves with the Second District’s opinion that it is not an abuse of discretion for a trial judge to hold that an affidavit filed with a petition for rehearing is too late. Gulewicz v. Cziesla, 366 So. 2d 507 (Fla. 2d DCA 1979); Willis v. Foster Sportswear Co., 352 So. 2d 922 (Fla. 2d DCA 1977).4 It is not without difficulty that we reach the result in this case. To do so we have been required to edge our way through a minefield of procedural problems,…
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Krouse v. AVIS Rent-A-Car Sys., Inc., 459 So. 2d 1132 (Fla. 3d DCA 1984)…413 So. 2d 1 (Fla.1982), adopting, 381 So. 2d 1164 (Fla. 5th DCA 1980); Stolzenberg v. Forte Towers South, Inc., 430 So. 2d 558, 559 (Fla. 3d DCA 1983); Morgan v. Continental Casualty Co., 382 So. 2d 351, 353 (Fla. 3d DCA 1980); Gulewicz v. Cziesla, 366 So. 2d 507, 508 (Fla. 2d DCA 1979). The final summary judgment under review is in all respects Affirmed.…
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Wiskeman v. First Bank OF Hollywood Beach, 405 So. 2d 1044 (Fla. 3d DCA 1981)…9 (Fla.3d DCA 1973); Fernandez v. Cunningham, 268 So. 2d 166 (Fla.3d DCA 1972); see Holl v. Talcott, 191 So. 2d 40 (Fla.1966); but see Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164 (Fla. 5th DCA 1980); Gulewicz v. Cziesla, 366 So. 2d 507 (Fla.2d DCA 1979); Willis v. L. W. Foster Sportswear Co., Inc., 352 So. 2d 922 (Fla.2d DCA 1977) (all holding that the trial court should reject affidavit filed on rehearing of summary judgment unless exigent circumstances exist to excuse the late f…
Authorities Cited
- Willis v. L. W. Foster Sportswear Co., Inc., 352 So. 2d 922 (Fla. 2d DCA 1977)
- Concepcion Sosa v. Allstate Ins. Co., 351 So. 2d 728 (Fla. 3d DCA 1977)
- Hatmaker v. Advance Mortg. Corp., 351 So. 2d 728 (Fla. 4th DCA 1977)