CHARLES FOSTER, APPELLANT,
v.
GULFSTREAM PRESS, INC., APPELLEE
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Foster appeals a summary judgment ruling that he was contributorily negligent as a matter of law after a wooden bumper on defendant's loading platform failed and caused his injury. The court reversed, holding that summary judgment was improper in a negligence case presenting genuine issues of material fact about whether Foster's conduct or the defendant's defective platform caused the injury.
The trial court erred in granting summary judgment. Genuine issues of material fact existed regarding whether Foster's injury was caused by his choice to jump rather than use the stairway, or by the defendant's maintenance of a defective platform. Such negligence issues are ordinarily not susceptible to summary adjudication and must be resolved by a jury.
“Issues of negligence, including such related issues as contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved in the ordinary manner.”
Establishes the fundamental principle that negligence cases should not be decided on summary judgment but require jury resolution.
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Join FLexlaw to unlock all legal intelligenceDefendant Gulfstream Press maintained a concrete loading platform protected by a four-inch-thick wooden bumper. Foster arrived to make a delivery and …
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Plaintiff seeks review of a summary final judgment in favor of the defendant, holding that plaintiff was guilty of contributory negligence as a matter of law.
The record reflects that the defendant maintained on its premises a concrete loading platform, the outer edge of which was protected by a four-inch-thick wooden bumper. Upon arriving at defendant’s place of business for the purpose of making a delivery, plaintiff mounted the platform by way of a stairway located at one end. Later, when called upon to move his truck, plaintiff was about to jump from the platform to ground level, a distance of approximately three and one-half feet, rather than descend by the stairway, when the wooden bumper gave way and he fell to the ground and was injured.
The determinative question here is whether the trial court erred in concluding that there existed no genuine issue of fact. We find that it did.
The function of the court under the summary judgment procedure is to determine whether there exist any genuine issues of material fact, not to decide such issues. Buck v. Hardy, Fla.App.1958, 106 So.2d 428; Holmes v. Forty-five Twenty-five, Inc., Fla.App.1961, 133 So.2d 651. This rule is applied with particular caution in negligence cases which are extremely troublesome due to the varied fact situations which they present. Saunders v. Kaplan, Fla.App.1958, 101 So.2d 181; Shapiro v. F. W. Woolworth, Fla.App.1960, 120 So. 2d 806; Holmes v. Forty-five Twenty-five, Inc., supra. In Buck v. Hardy, supra, this court, citing 6 Moore’s Federal Practice (2d Ed.), said:
“[Ijssues of negligence, including such related issues as contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved in the ordinary manner.”
Where the case is close on these issues, doubt should always be resolved in favor of a jury trial. Bess v. 17545 Collins Ave., Inc., Fla. 1957, 98 So.2d 490; Holmes v. Forty-five Twenty-five, Inc., supra.
From the record, it would appear that in the instant case there was a genuine *272material issue as to whether plaintiff was guilty of contributory negligence.
Defendant relies heavily on the doctrine that one having a choice between two courses of conduct is contributorily negligent as a matter of law in pursuing a course which is dangerous rather than one which is safe where an ordinarily prudent person would not have so chosen. It should be pointed out that for this doctrine to apply it must appear that one knew and appreciated, or in the exercise of ordinary care, should have known and appreciated, that the course chosen was not unlikely to result in his injury. See 65 C.J.S. Negligence § 123; 23 Fla.Jur., Negligence, § 80. The record here indicates that there was nothing visibly wrong with the bumper. The question thus becomes one of whether plaintiff’s injury was caused by his choice of routes or by defendant’s maintenance of a defective platform. This question is properly for a jury.
Reversed and remanded for further proceedings not inconsistent herewith.
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Garris v. Robeison, 146 So. 2d 388 (Fla. 2d DCA 1962)…hysical evidence must be examined. Goff v. Miami Transit Company, Fla.1955, 77 So. 2d 636. And where the case is close on issues of negligence, doubt should always be resolved in favor of a jury trial. Foster v. Gulfstream Press, Inc., Fla.App.1961, 134 So. 2d 270. Where the evidence fully'- makes out the plaintiff’s case, and there is no evidence to contradict or rebut it, a directed verdict for the plaintiff is proper. New England Mutual Life Ins. Co. v. Huckins, 1937, 127 Fla. 540, 173 So. 696. Conflicts a…
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Quinn v. I. C. Helmly Furniture Co., Inc., 141 So. 2d 302 (Fla. 3d DCA 1962)…n. We find this contention has merit. The function of the court under the summary judgment procedure is to determine whether there exist any genuine issues of material fact, not to decide such issues. Foster v. Gulfstream Press, Inc., Fla.App.1961, 134 So. 2d 270; Holmes v. Forty-Five Twenty-Five, Inc., Fla.App. 1961, 133 So. 2d 651; Buck v. Hardy, Fla.App.1958, 106 So. 2d 428. In Buck v. Hardy, supra, this court said: “[Ijssues of negligence, including such related issues as contributory negligence, are or…
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Nedda Suhr v. Dade Cnty., 198 So. 2d 837 (Fla. 3d DCA 1967)…iately adjacent to the sidewalk, and whether the crowding and pushing after the concert were foreseeable, are both genuine issues of material fact which prohibit the granting of a summary judgment. See Foster v. Gulfstream Press, Inc., Fla.App.1961, 134 So. 2d 270. We think that the decision in Heps v. Burdine’s, Inc., Fla. 1954, 69 So. 2d 340 is not determinative because in that action the complaint was dismissed due to the fact that there was no allegation that the escalator, into which plaintiff was pushe…
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
- Bess v. 17545 Collins Ave., Inc., 98 So. 2d 490 (Fla. 1957)
- Saunders v. Kaplan, 101 So. 2d 181 (Fla. 3d DCA 1958)
- Elva Buck and Lawrence Buck v. Hardy, 106 So. 2d 428 (Fla. 3d DCA 1958)
- Holmes v. Forty-Five Twenty-Five, Inc., 133 So. 2d 651 (Fla. 3d DCA 1961)
- Shapiro v. Woolworth, 120 So. 2d 806 (Fla. 3d DCA 1960)