GENE H. LASSWELL, JR., APPELLANT,
v.
CSX TRANSPORTATION, INC., A CORPORATION, APPELLEE
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The court held that the employer conclusively demonstrated the absence of genuine issues of material fact regarding defect, notice, and foreseeability in the employee's negligence action.
[1] A defendant moving for summary judgment in a negligence action must conclusively demonstrate the absence of any genuine issue of material fact regarding defect, notice, a…
[2] Once a defendant moving for summary judgment has met its initial burden, the plaintiff must affirmatively contravene the defendant's showing of a lack of genuine issue of…
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Join FLexlaw to unlock all legal intelligenceAn employee stubbed his foot on an unidentifiable object while working, later experiencing severe pain and injury. No one observed the incident or ide…
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CAMPBELL, Chief Judge.
Appellant challenges the final summary judgment for appellee, his employer. The court found that appellee had conclusively demonstrated the absence of any genuine issue of material fact on the issues of defect, notice and foreseeability that could be the basis for appellee’s liability in appellant’s negligence action brought pursuant to the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq.
The facts show that while appellant was working as a brakeman in appellee’s train yard, he stubbed his right foot on an unidentifiable object. He felt no pain, was unconcerned about the incident and did not then or thereafter observe or have any idea as to what the unknown object was that caused him to stub his foot. Thereafter, while climbing a ladder to the engine of a train, he felt pain in his foot and noticed that it was bleeding profusely. He was immediately taken to a nearby emergency room. His right big toe was almost amputated as a result of the injury. The nearest person to appellant when the incident occurred was approximately two train car lengths away. Thus, there was no one who observed what occurred and no one ever identified the object that caused appellant to stub his foot.
Appellee had the burden to present evidence demonstrating conclusively the absence of any genuine issue of material fact to support appellant’s cause of action in appellee’s motion for summary judgment. Once appellee had initially met that burden, it then became the duty of appellant to affirmatively contravene appellee’s showing of a lack of any genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla.1966). Appellant has failed to carry his burden. Inasmuch as it has been demonstrated that it can never be shown by inference or otherwise what the object was that caused appellant to stub his foot, how long it may have been in appellee’s rail yard, how it got there and what notice by inference or otherwise, if any, that appellee had of the object, the summary judgment for appellee must be affirmed.
SCHEB and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stanford v. CSX Transp., Inc., 637 So. 2d 37 (Fla. 2d DCA 1994)…ncerning the stairs. In moving for summary judgment, the Railroad did not attempt to establish that these witnesses could not provide evidence of a defect. The Railroad relies heavily upon our prior decision in Lasswell v. CSX Transportation, Inc., 544 So. 2d 1036 (Fla.2d DCA), review denied, 553 So. 2d 1165 (Fla.1989). In Lass-well, the plaintiff stubbed his toe on an unknown object while working in the train yard. He did not immediately realize that he was hurt. There were no witnesses close to the general…
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Murray v. CSX Transp., Inc., 661 So. 2d 39 (Fla. 2d DCA 1995)…PER CURIAM. Affirmed. See Lasswell v. CSX Transportation, Inc., 544 So. 2d 1036 (Fla.2d DCA 1989), rev. denied, 553 So. 2d 1165 (Fla.1989). FRANK, C.J., and PARKER and QUINCE, JJ., concur.…
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Joetta Holloway v. Nat'l R.R. Passenger Corp., 791 So. 2d 539 (Fla. 2d DCA 2001)…ummary judgment. Likewise, we find that Holloway’s claim that she suffered a specific injury during the Tampa New York run was sufficient to present the issue to the jury. Amtrak relies on our prior decision in Lasswell v. CSX Transportation, Inc., 544 So. 2d 1036 (Fla. 2d DCA 1989). Lasswell stubbed his toe on an unknown object while working in the train yard and did not immediately realize that he was hurt. There were no witnesses close to the general scene of the accident, and Lasswell had no idea what he…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)