JOE PRESCOTT, APPELLANT,
v.
B. F. ERWIN AND LAKE SHIPP FRUIT CO., INC., A FLORIDA CORPORATION, APPELLEES
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An employee sued his employer for negligence based on defective truck brakes, alleging he was directed by his employer to continue using the truck despite reporting the defect and being promised repairs. The court reversed a summary judgment for the defendants, holding that the employer's promise to repair and the employer's direction to continue work created jury issues that precluded summary judgment on an assumption of risk defense.
Summary judgment was improper. An employee's assumption of risk is suspended by the employer's promise to repair defective machinery made in response to the employee's complaint, and an employee does not assume the risk of injury if the injurious action was done under the employer's command. These issues must be submitted to the jury.
“The courts are cautious in granting summary judgments in negligence cases, for negligence is usually for the determination of the jury.”
Establishes the high bar for summary judgment in negligence cases and the preference for jury determination.
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Join FLexlaw to unlock all legal intelligencePlaintiff Prescott was an employee of defendant B. F. Erwin. While driving a truck owned by defendant Lake Shipp Fruit Co. in the course of his employ…
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In this case the court entered a summary judgment in favor of the defendants (ap-pellees) and against the plaintiff (appellant). The facts in the case are that the plaintiff was the employee of the defendant Erwin. The plaintiff sued the defendants for personal injury alleging negligence on the part of the defendants because of the defective condition of the brakes on a truck which the plaintiff was driving in the course of his employment. With other pleas, the defendants plead assumption of risk. The plaintiff employee informed the defendant Erwin, his employer, of the defective condition of the brakes on the truck; and after some discussion on the matter, the employer directed the plaintiff employee to continue using the truck and promised that he would have the brakes on the truck repaired. The next day the plaintiff was injured in his use of that truck. In the summary judgment, the court found that there was no genuine issue as to any material fact and the court concluded that if the brakes of the truck were defective that, as a matter of law, the plaintiff assumed the risk involved.
The courts are cautious in granting summary judgments in negligence cases, for negligence is usually for the determination of the jury. Saunders v. Kaplan, Fla.App., 101 So.2d 181. The burden of proof in a summary judgment is always on the moving party and all doubts must be resolved against him, Chirico v. Dew, Fla.App., 113 So.2d 597. The movant for summary judgment not only admits the basic facts established that are favorable to the adverse party, but also every conclusion or inference favorable to the adverse party that might be reasonably inferred from the evidence, Warring v. Winn-Dixie Stores, Inc., Fla.App., 105 So.2d 915.
An employee’s assumption of risk is suspended by the employer’s promise, made in response to the employee’s complaint, to repair a defective piece of machinery. In addition, an exception to the rule of assumption of risk is that an employee does not assume the risk of injury incident to his employment if the action causing the injury is done under the command of the employer. Where such evidence is produced, it may be properly submitted to the jury. 21 Fla.Jur., Master-Servant, Sections 52-53, pages 582-583; 35 Am.Jur., Master-Servant, Sections 315 and 320, pages 743-747; Bartholf v. Baker, Fla., 71 So.2d 480.
For the reasons stated, it was error for the court to enter the summary judgment, and the judgment is reversed and the cause is remanded.
Reversed.
SHANNON, C. J., and ICANNER and SMITH, JJ., concur.
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Sonnenborn v. Blanche Murray Gartrell, 179 So. 2d 385 (Fla. 3d DCA 1965)…entitled to assume or interpret her employer’s remark about herself using the stool as a direction for the servant to do so. In those circumstances the doctrine would not be applicable. See Bartholf v. Baker, supra; Prescott v. Erwin, Fla.App.1961, 133 So. 2d 332; 21 Fla.Jur., Master and Servant § 53. Cf. Schumaker v. King, Fla.App.1962, 141 So. 2d 807. Moreover, if it was error to strike the defense of assumption of risk, the error was rendered harmless. This is so because, as pointed out by appellee, the c…
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Colton v. The Great Atl. & Pac. TEA Co., Inc., 136 So. 2d 361 (Fla. 2d DCA 1962)…ny negligence which proximately caused Plaintiff’s' damages. * * * ” It has been stated on many occasions by the courts of this state that caution is used in granting summary judgment in negligence cases. See e. g., Prescott v. Erwin, Fla.App.1961, 133 So. 2d 332. It is only when there is no genuine issue as to any material fact and when the mov-ant is entitled to judgment as a matter of law that summary judgment is properly granted. Clark v. City of Atlantic Beach, Fla.App.1961, 124 So. 2d 305. In the inst…
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Leffie H. Ritter v. Brengle, 185 So. 2d 7 (Fla. 2d DCA 1966)…n the moving party and he not only admits the established facts favorable to the opposing party but also all favorable conclusions or inferences reasonably inferred from the evidence. This [*9] was clearly set out in Prescott v. Erwin, Fla.App.1961, 133 So. 2d 332: “The courts are cautious in granting summary judgments in negligence cases, for negligence is usually for the determination of the jury. Saunders v. Kaplan, Fla.App., 101 So. 2d 181. The burden of proof in a summary judgment is always on the movin…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bartholf v. Baker, 71 So. 2d 480 (Fla. 1954)
- City OF Miami v. Lager, 105 So. 2d 915 (Fla. 3d DCA 1958)
- Saunders v. Kaplan, 101 So. 2d 181 (Fla. 3d DCA 1958)
- Chirico v. Elzie L. DEW, 113 So. 2d 597 (Fla. 2d DCA 1959)