BEVERLY HOLLAND AND THOMAS HOLLAND, APPELLANTS,
v.
GUSTAV VERHEUL AND ELIZABETH VERHEUL, D/B/A MEADOWS COIFFURES BEAUTY SALON, APPELLEES
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The court held that the trial court erred in granting summary judgment because a genuine issue of material fact existed regarding the cause of the plaintiff's fall.
[1] Summary judgment is improper if the record raises even the slightest doubt that a genuine issue of material fact might exist.
[2] A party opposing a motion for summary judgment may raise a genuine issue of material fact through an expert affidavit detailing a hazardous condition.
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Join FLexlaw to unlock all legal intelligencePlaintiff fell and was injured at a beauty salon, allegedly due to a raised tile. Despite the plaintiff's inability to pinpoint the exact cause, witne…
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RYDER, Judge.
Beverly and Thomas Holland seek review of the trial court’s order of final summary judgment in favor of appellees in this personal injury action. We reverse.
On June 17, 1989, Mrs. Holland was present as a patron at Meadows Beauty Salon owned by appellees. After Mrs. Holland’s beauty appointment, as she was departing from the premises, she realized that she had left a package on the counter next to the station where she had been seated. While walking in a normal fashion, Mrs. Holland came abruptly to a halt, lurched forward and fell onto the tile floor. As a result of the fall, Mrs. Holland sustained injuries including a fractured left hip. Mr. Holland, as Mrs. Holland’s spouse, suffered derivative damages.
The Hollands filed suit against appellees based on negligence, specifically that appel-lees failed to properly maintain the premises in a reasonably safe condition and to warn of the danger present upon the premises. Appellees denied liability and subsequently filed a motion for summary judgment. The motion for summary judgment alleged that the Hollands were unable to identify a particular defect that caused Mrs. Holland’s injuries. Appellants filed an affidavit in opposition to the motion for summary judgment by engineer/contractor Norman Nixon. In his affidavit, Mr. Nixon stated that he personally inspected the beauty salon and the condition of the floor on the premises. Upon inspection, Mr. Nixon found a tile which was over one-eighth of an inch higher than the rest of the flooring. Mr. Nixon also stated that the difference in the height of the tiles “creates a dangerous, hazardous, and/or unsafe condition for persons traversing said premises.” The trial court granted appel-lees’ motion for summary judgment.
Shirley Robertson, a patron of appellees’ business, present at the time of the incident, testified that after Mrs. Holland’s fall there was discussion among the customers and beauticians about what had caused the fall. There was discussion of the appearance of a slight raise in the floor in the area where Mrs. Holland had fallen. Ms. Robertson testified that Mrs. Holland was walking and then lurched as she fell as if she bumped something or caught her foot on something.
Sharon Leverone, an employee of appel-lees’ business, testified that there was one tile on the floor that was a little raised. She also stated that she had tripped on the raised tile before and had complained to appellees about it before Mrs. Holland’s fall. She testified that she saw Mrs. Holland’s shoe come down on a tile in the area of the floor where the raised tile was located. Ms. Leverone also testified that another employee, Carol Christensen, had complained about a raised tile in the same area. Ms. Leverone stated that there is only one tile in the immediate vicinity of Mrs. Holland’s fall which is raised and which she had tripped on previously.
Mrs. Holland testified that she had visited the salon once a week for the one and one-half to two years prior to the incident. The tile floor had been down for at least six months prior to the fall. Mrs. Holland also testified that she was wearing two and one-half to three-inch heels at the time of the incident. Mrs. Holland could not identify which tile allegedly caused her to fall. She could only give the general area of the fall and could not be specific. Mrs. Holland testified that her body came to a very abrupt stop and she flew forward. As to what caused that motion to occur she does not know. Mrs. Holland testified that she did not check the floor area at any time after the fall to see what had caused her to fall. She has no personal knowledge as to whether or not the tiles were even or uneven.
A motion for summary judgment may only be granted if the pleadings, depositions, answers to interrogatories and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c). In addition, the burden is on the movant to demonstrate conclusively that the nonmoving party cannot prevail. Cohen v. Wall, 576 So. 2d 945 (Fla. 2d DCA 1991); Gomes v. Stevens, 548 So. 2d 1163 (Fla. 2d DCA 1989). If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Cohen; Crandall v. Southwest Florida Blood Bank, Inc., 581 So. 2d 593 (Fla. 2d DCA 1991); Gomes.
Although none of the witnesses in the case sub judice are absolutely sure about what caused Mrs. Holland to fall, different inferences can reasonably be drawn from the facts. See Crandall. The witnesses here identified a slightly raised tile in the area of the floor where Mrs. Holland fell. The affidavit in opposition to the motion for summary judgment showed that a raised tile was found in the area where Mrs. Holland fell. The testimony in this case presents a question for the trier of fact. Under these circumstances, it was error for the trial court to enter summary judgment in favor of appellees.
Accordingly, the case is reversed and remanded for proceedings consistent with this opinion.
SCHEB, A.C.J., and DANAHY, J., concur.
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Hervey v. Alfonso, 650 So. 2d 644 (Fla. 2d DCA 1995)…specific area where appellant slipped and fell. Thus, because these are issues which only the trier of fact can resolve, appellee has failed to show conclusively as a matter of law that the appellant cannot prove his case. E.g., Holland v. Verheul, 583 So. 2d 788 (Fla. 2d DCA 1991). In view of our disposition of this case, we need not reach appellant’s alternative argument that, assuming summary judgment was appropriate as to the cause of action alleged, the trial court erred in denying him leave to file an…
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Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995)…rposes of a summary judgment motion, is a fact that is essential to the resolution of the legal questions raised in the case. If the record raises the slightest doubt that an issue might exist, then summary judgment is improper.” Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991); see Fine Arts Museums Found. v. First Nat. in Palm Beach, a Div. of First Union Nat. Bank of Florida, 633 So. 2d 1179 (Fla. 4th DCA), review denied sub nom. Olean Gen. Hosp., Inc. v. Fine [*303] Arts Museums Found., 641 So.…
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Yosvani Gonzalez and Yenisleidy Perez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031 (Fla. 3d DCA 2019)…3d DCA 2010). "If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991). Significantly, in considering a motion for summary judgment, a trial court is not permitted to weigh material conflicting evidence or adjudge the credibility of the witnesses. Garcia v. First Cmty. Ins. Co., 241 So. 3d 254,…
Previewing 3 of 41 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gomes v. Stevens, 548 So. 2d 1163 (Fla. 2d DCA 1989)
- Crandall v. Sw. Fla. Blood Bank, Inc., 581 So. 2d 593 (Fla. 2d DCA 1991)
- Cohen v. Wall, 576 So. 2d 945 (Fla. 2d DCA 1991)