WILLIAM F. PIERSON, JR., APPELLANT,
v.
W. W. SEALE AND KATHLEEN TONI SEALE, INDIVIDUALLY AND AS PARTNERS, D/B/A WIL'S WAFFLE SHOP, APPELLEES
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In this premises liability case, the Florida District Court of Appeal reversed a summary judgment for restaurant operators in a booth-collapse injury case, holding that disputed factual issues remained regarding whether the defendants performed an adequate inspection duty. The court also found that photographs of the damaged booth should be discoverable as an exception to the work product rule.
The court held that the uncontroverted facts regarding employees' daily contact with booths did not conclusively establish adequate inspection as a matter of law, and genuine issues remained for trial regarding whether proper inspection could have disclosed the defect. The court further held that the photographs should be discoverable as an exception to the work product rule, since the bench had been repaired and the photographs were the only way to make the facts available to plaintiff.
“We hold that those uncontroverted facts are not sufficient, under the circumstances of the injury in this case, to amount to a conclusive discharge as a matter of law of the duty to inspect.”
Establishes the standard that daily employee contact with booths does not conclusively satisfy the inspection duty, leaving triable issues for a jury.
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Join FLexlaw to unlock all legal intelligencePlaintiff was injured when a booth bench at defendants' restaurant collapsed. Defendants argued they had performed their inspection duty by having emp…
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The plaintiff appeals a summary final judgment for defendants in an action for injury to the person. The complaint sought damages for an injury allegedly sustained when a booth bench in defendants’ restaurant collapsed under plaintiff. The duty charged to have been violated was failure of defendants to properly inspect this piece of furniture to determine whether it was safe for use.
Appellant contended that the showing as to inspection was insufficient, and that such issue was not resolved. Appel-lees argued that the deposition of one of the defendants established beyond issue that the duty to inspect was performed. By the deposition referred to, the operator of the restaurant brought forward the facts that each day her employees moved the booths in order to clean around them, and that from time to time she and her employees sat upon the various benches. The record also contains testimony of one apparently qualified as an expert witness that the accident which occurred could only have happened by reason of a gradual but noticeable deterioration of the supports for the bench. We hold that those uncontro-verted facts are not sufficient, under the circumstances of the injury in this case, to amount to a conclusive discharge as a matter of law of the duty to inspect. There were genuine triable issues as to whether a proper and adequate inspection, if made by defendants, could and should have disclosed the alleged defective condition of the booth bench, and, if so, whether such an inspection was made. See Farrey v. Bettendorf, Fla.1957, 96 So.2d 889; Mosqueda v. Paramount Enterprises, Inc., Fla.App.1959, 111 So.2d 63.
One other point advanced by the appellant must be discussed, because this cause is to be returned for further proceedings. Appellant contends the trial judge erred by denying his motion for the production of certain photographs of the bench, which were in the possession of defendants’ counsel or agents. It was alleged, as a basis for the motion to produce, that the offending instrument had been so effectively repaired that the facts portrayed by the photographs could not otherwise be made available to the plaintiff. The record does not contain any circumstance tending to controvert this alleged basis for the motion to produce. On remand, unless some other sufficient reason is shown to deny such discovery, it would appear that a motion to produce the photographs should be granted under the exception to the work product rule. See Ford Motor Company v. Havee, Fla.App. *8891960, 123 So.2d 572; Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
HORTON, C. J., and PEARSON and CARROLL, CHAS., JJ., concur.
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Nance v. Linzy Ball and June Ball, 134 So. 2d 35 (Fla. 2d DCA 1961)…l fact. If the proceedings failed to set forth any fact or circumstance from which such knowledge appeared or was inferable, the motion for summary judgment was correctly granted; otherwise the judgment was erroneous. Pierson v. Seale, Fla.App.1961, 128 So. 2d 887. Some cases are clearly disposable by summary judgment. There are also marginal cases posing colorable issues which the trial court may consider so weakly supported as to indicate the futility of a full hearing on the merits. In such a case, where…
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Harris v. Jewett, 200 So. 2d 619 (Fla. 3d DCA 1967)…place for the production. In ordering the production of the photographs, we do not find'that the trial judge departed from the essential requirements of law. See: Miami Transit Co. v. Hurns, Fla.1950, 46 So. 2d 390; Pierson v. Seale, Fla.App.1961, 128 So. 2d 887. However, we quash the order adjudicating the plaintiff in contempt for failure to comply with the first order of production, because this order did not comply with the Florida Rules of Civil Procedure. See: Rule 1.28, F.R.C.P., 30 F.S.A.; Fryd Cons…
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Int'l Bus. Machs. Corp. v. Jewell Elder and David S. Elder, 187 So. 2d 82 (Fla. 3d DCA 1966)…sion was caused by a mechanical failure of the brakes of his automobile, and that he was without knowledge or warning of the defective condition of the braking system. It may well he that, under the rule set forth in Pierson v. Seale, Fla.App.1961, 128 So. 2d 887, and Ford Motor Company v. Havee, Fla.App.1960, 123 So. 2d 572, respondents have shown good cause for the production of the photographs and some of the other documents mentioned in their motion. These opinions and others cited by the respondents set…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947)
- Farrey v. Bettendorf, 96 So. 2d 889 (Fla. 1957)
- Ford Motor Co. v. Havee, 123 So. 2d 572 (Fla. 3d DCA 1960)
- Cecille Mosqueda v. Paramount Enters., Inc., 111 So. 2d 63 (Fla. 3d DCA 1959)