ULTRA MARINE CORPORATION, APPELLANT,
v.
JOHANNA J. BRYANT, APPELLEE
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The court held that genuine issues of material fact regarding scope of employment and negligence remained, making the summary judgment on liability erroneous.
[1] Summary judgment on liability is improper when genuine issues of material fact remain unresolved and reasonable minds could differ on the conclusions to be drawn from the…
[2] The burden of proving the nonexistence of genuine triable issues rests on the party moving for summary judgment.
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Join FLexlaw to unlock all legal intelligencePlaintiff sued for injuries sustained during a boat demonstration allegedly due to the operator's negligence. The trial court granted summary judgment…
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PER CURIAM.
This appeal arises out of a negligence action in the trial court. After the court had entered a summary judgment on the issue of liability the cause continued to jury trial on the issue of damages. A verdict was returned in favor of the appellee/plain-tiff and a judgment awarded. This appellant contends that under the facts of the case the issue of liability was improperly removed from the province of the jury.
The suit was filed by Johanna J. Bryant, seeking damages for injuries claimed to have been sustained as a result of the alleged negligence of the operator of a boat, an employee of appellant, Ultra Marine Corporation, who was demonstrating the boat to Bryant. Ultra Marine answered, denying inter alia : that the boat ride was a “demonstration ride”; that the boat operator was acting within the scope of his employment; that the operator was guilty of negligence.
A review of the record reveals that the facts in the record at the time the trial court granted its summary judgment on the issue of liability were in conflict and reasonable men sitting on a jury could have reached different conclusions had they been permitted to hear all the facts. As concisely stated by the Supreme Court of Florida in Holl v. Talcott, 191 So. 2d 40 (Fla.1966), at 43-44:
“The rule simply is that the burden to prove the nonexistence of genuine triable issues is on the moving party, and the burden of proving the existence of such issue is not shifted to the opposing party until the movant has successfully met his burden.”
We conclude that the appellee has not met its burden of proof to overcome all reasonable inferences which could be drawn in favor of the opposing party. Genuine issues of material fact regarding scope of employment and negligence clearly remained unresolved at the time the summary judgment was granted in favor of the appellee, thus, it was error to grant such.
Other points have been raised by appellant; however, in light of our opinion on the first point, we need not address those.
Reversed and remanded for further proceedings not inconsistent with the views expressed herein.
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Parliament Ins. Co. v. Bryant, 380 So. 2d 1088 (Fla. 3d DCA 1980)…r complaint were that the operator of the boat, an employee of the marine company, was negligent in the operation of the boat while taking Bryant on a “demonstration ride”[1] in an effort to sell her the boat. See Ultra Marine Corporation v. Bryant, 375 So. 2d 613 (Fla. 3d DCA 1979). The. marine company’s insurer, Parliament, the appellant herein, contends that there is no insurance coverage in this case; [*1089] it is asserted that the subject policy was intended to cover the marine company’s premises and a…
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Riguard Colon v. Serafín Lara and Carmen Lara, 389 So. 2d 1070 (Fla. 3d DCA 1980)…So. 2d 892, 894 (Fla.2d DCA 1966). A summary final judgment is proper when a movant sustains the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla.1966); e. g. Ultra Marine Corp. v. Bryant, 375 So. 2d 613 (Fla.3d DCA 1979). Since no genuine issue of material fact was presented, and the trial court could only speculate as to the composition of the shower door, appellees were entitled as a matter of law to summary judgment in their favor. Wentz v. Ind…
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Highlands Ins. Co. v. Lucci, 423 So. 2d 947 (Fla. 3d DCA 1982)…quitieri v. Aetna Casualty & Surety Co., 382 So. 2d 730 (Fla. 5th DCA 1980); accord Hull & Company v. McGetrick, 414 So. 2d 243 (Fla. 3d DCA 1982); Perez v. Universal Engineering Corp., 413 So. 2d 75 (Fla. 3d DCA 1982); Ultra Marine Corp. v. Bryant, 375 So. 2d 613 (Fla. 3d DCA 1979), cert. denied, 386 So. 2d 634 (Fla.1980); see Holl v. Talcott, 191 So. 2d 40 (Fla.1966). We therefore reverse the final judgment. The record discloses that doorman Vincent asked Lucci to stop annoying two girls inside the disco.…
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- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)