MICHAEL CAHILL, A MINOR BY HIS NEXT FRIEND AND MOTHER, ELEANOR K. UTZ, FORMERLY ELEANOR K. CAHILL, AND ELEANOR K. UTZ, FORMERLY ELEANOR K. CAHILL, FOR HERSELF, APPELLANTS,
v.
EVELYN CASE COONEY, APPELLEE
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In this personal injury case arising from a bicycle-automobile collision, the appellate court affirmed the trial court's summary judgment for the defendant, finding that the plaintiff failed to establish negligence on the defendant's part even when viewing the facts most favorably to the plaintiff.
The court affirmed the summary judgment, finding no negligence on the defendant's part even under the most favorable interpretation of the facts for the plaintiff. The trial court properly denied the plaintiff's untimely motion for continuance to depose an additional investigating officer.
“Necessarily, in determining the propriety of the entry of the summary final judgment, all reasonable inferences are to be drawn in favor of the party moved against.”
Establishes the standard of review that appellate courts must apply when reviewing summary judgments, requiring favorable inferences for the non-moving party.
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Join FLexlaw to unlock all legal intelligenceThe defendant was traveling south on 31st Road in Broward County when her automobile collided with a minor plaintiff riding his bicycle eastbound on a…
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The appellants, plaintiffs in the trial court, seek review of an adverse summary final judgment in a personal injury action. Necessarily, in determining the propriety of the entry of the summary final judgment, all reasonable inferences are to be drawn in favor of the party moved against. See: Smith v. Musso, Fla.App. *331963, 151 So.2d 475; Michalski v. Peaslee, Fla.App.1965, 174 So.2d 427.
From the record on appeal, it appears that the defendant was traveling south on 31st Road in Broward County, when she approached an intersection [an alleyway which crossed the road at right angles]. The minor plaintiff was riding his bicycle on this alleyway, west of 31st Road, proceeding east. It was raining considerably and an accident occurred when the minor plaintiff’s bicycle collided with the right side of the defendant’s automobile. Following an answer denying negligence on the part of the defendant and urging contributory negligence, the defendant moved for a summary judgment which, following hearing was denied. At the time of the denial of this motion, there was an affidavit on file by Officer Hagen that the point of impact was approximately eight feet south of the south curb of the alley intersecting North 31st Road, on the edge of 31st Road.
Subsequently, following the taking of a deposition of the investigating officer, Hagen, [whose affidavit had first been introduced at the hearing on the motion for summary judgment] the defendant again moved for a summary judgment, after which hearing the summary final judgment here under review was entered. We find no error and affirm. At the time the oral deposition of Hagen was taken, he clearly indicated that notwithstanding his statement in his affidavit, he was unable to establish the point of impact.1 The trial court had a right to consider successive motions for summary judgment, provided additional affidavits, depositions or other form of evidence was relied on, and we find no error because of the original denial of the motion.
Viewing the record before the trial court most favorably to the plaintiff, we fail to find negligence on the part of the defendant and, therefore, find the smmary judgment to have been correctly entered by the trial court. See: Griffis v. DuBow, Fla.App. 1959, 114 So.2d 207; Harper v. Mangel, Fla.App.1963, 151 So.2d 346; Lake v. Stiegler, Fla.App.1963, 156 So.2d 785.
The appellants also urge error in the failure of the trial court to grant them additional time to locate and depose another investigating officer. The court’s ruling on this motion clearly indicates that same came too late, as the following is found in the summary final judgment:
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“ * * * Thereafter, the counsel for the plaintiffs orally moved for a continuance of the hearing until the deposition of an Officer Masterson whom he represented as one of the investigating police officers (the other being Officer John Hagen whose deposition was taken by the plaintiffs) could be found and deposed, but the Court felt such oral motion was not timely and that counsel chose to first await the Court’s ruling before making such oral motion, therefore, such motion is hereby denied, * * * ”
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We find that the trial judge was eminently correct in denying this motion for continuance, upon the authority of Banco Nacional de Cuba v. Steckel, Fla.App.1961, 134 So.2d 23; McNutt v. Sherrill, Fla.App. 1962, 141 So.2d 309; Cia. Ecuatoriana de Aviacion v. United States & Overseas Corp., *34Fla.App.1962, 144 So.2d 338; Raydel, Ltd. v. Medcalfe, Fla.App.1964, 162 So.2d 910.
Therefore, for the reasons stated above the summary final judgment here under review is hereby affirmed.
Affirmed.
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Lake v. Ilias Konstantinu and Parke, 189 So. 2d 171 (Fla. 2d DCA 1966)…n complete presentation by both parties of proper supporting or opposing evidence, the motion for summary judgment might properly be granted. At least the defendant should have the opportunity of renewing its motion. Cahill v. Cooney, 3d D.C.A.1966, 182 So. 2d 32. SHANNON, Acting C. J., and PIERCE, J., concur.…
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Cora Lee Cline v. Flagler Sales Corp. & O. H. Schwartz, 207 So. 2d 709 (Fla. 3d DCA 1968)…ial court’s ruling, all reasonable inferences from the record are to be taken in the light most favorable to the party moved against in the summary judgment proceedings. Harper v. Mangel, Fla.App.1963, 151 So. 2d 346; Cahill v. Cooney, Fla.App.1966, 182 So. 2d 32. Viewing the record in light of this principle, it reveals the following: The plaintiff purchased a chattel from the defendant, Flagler Sales Corp., and executed a retain title sales contract calling for monthly installment payments. The plaintiff…
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Danni Gail Byrd v. Leach, 226 So. 2d 866 (Fla. 4th DCA 1969)…or a finding that he ought to have seen such. When no evidence of negligence is present, summary judgment is appropriate. Griffis v. Du Bow, Fla.App.1959, 114 So. 2d 207; Bailey v. Keene, Fla.App.1960, 122 So. 2d 498; Cahill v. Cooney, Fla.App.1966, 182 So. 2d 32. For similar fact situations where the issue was decided as a matter of law, see Jackson v. Haney, Fla.App.1960, 124 So. 2d 719; Green v. Loudermilk, Fla.App.1962, 146 So. 2d 601. Based on the circumstances, was there some requirement in law for th…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- CIA. Ecuatoriana de Aviacion v. U. S. & Overseas Corp., 144 So. 2d 338 (Fla. 3d DCA 1962)
- Griffis v. DU BOW, 114 So. 2d 207 (Fla. 1st DCA 1959)
- John P. McNUTT Ad Litem of the Estate of Morris Margolis v. Sherrill, 141 So. 2d 309 (Fla. 3d DCA 1962)
- Raydel, Ltd. v. Medcalfe, 162 So. 2d 910 (Fla. 3d DCA 1964)
- Michalski v. Peaslee, 174 So. 2d 427 (Fla. 2d DCA 1965)
- Harper v. Alba D. Mangel, 151 So. 2d 346 (Fla. 3d DCA 1963)
- Banco Nacional de Cuba v. Steckel, 134 So. 2d 23 (Fla. 3d DCA 1961)
- Smith v. Musso, 151 So. 2d 475 (Fla. 2d DCA 1963)
- Lake v. Bernhardt R. Stiegler, Jr., 156 So. 2d 785 (Fla. 3d DCA 1963)
- PAN Am. Life Ins. Co. v. Raij, 156 So. 2d 785 (Fla. 3d DCA 1963)