NEDDA SUHR, APPELLANT,
v.
DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA AND THE GREATER MIAMI PHILHARMONIC SOCIETY, INC., A CORPORATION OF THE STATE OF FLORIDA, APPELLEES
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Nedda Suhr sued Dade County and the Greater Miami Philharmonic Society after she fell into a sprinkler hole adjacent to a sidewalk at the Dade County Auditorium while leaving a crowded concert. The trial court granted summary judgment for the defendants, but the appellate court reversed, holding that material factual questions remained regarding the defendants' duty to maintain safe premises and whether the crowded conditions were foreseeable.
Summary judgment was improper because genuine issues of material fact existed regarding the defendants' negligence in maintaining the premises and the foreseeability of the crowded conditions, and the question of the plaintiff's contributory negligence should have been submitted to the jury rather than decided as a matter of law.
“summary judgment procedures should be applied with special caution in negligence actions”
Establishes the heightened standard of review for summary judgment in negligence cases, requiring clear showing that no genuine issue of material fact exists.
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Join FLexlaw to unlock all legal intelligenceAfter attending a concert at the Dade County Auditorium, Nedda Suhr left with other attendees through a crowded walkway. She was pushed or crowded off…
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Nedda Suhr, with several lady friends, attended a concert at the Dade County Auditorium. The attendance was large, and after the concert, the walkway around the building to the parking lot was crowded. Upon leaving the concert, Miss Suhr was crowded or pushed off the sidewalk. Her foot went into a hole immediately adjacent to the sidewalk, and she fell with resulting personal injury. She sued Dade County, the owner of the auditorium, and the Greater Miami Philharmonic Society, who presented the concert. After the taking of depositions and the filing of affidavits, the court entered a summary judgment for both defendants. This appeal is from that judgment. We reverse upon a holding that there was a genuine issue of material fact upon the issue of the defendants’ compliance with their duty to provide a reasonably safe place for public entertainment.
The appellees, Dade County and the Philharmonic Society, have agreed that for the purpose of this appeal, they stand in the same relationship to the appellant. That is to say,, that there is nothing in the record to refute appellant’s allegation that they were the operators of a place of public entertainment and the appellant was a. business invitee.
We are required to view all of the facts contained in the depositions and affidavits in' the light most favorable to the appellant’s case. See Beebe v. Kaplan, Fla.App.1965, 177 So.2d 869. We must determine if there is a genuine issue of material fact in view of the admonitions in Holl v. Talcott, Fla. 1966, 191 So.2d 40, where it is pointed out that “ * * * sum*839mary judgment procedures should be applied with special caution in negligence actions” and that “The rule simply is that the burden to prove the non-existence of genuine triable issues is on the moving party”.
It is urged with vigor that the facts conclusively show that the proximate cause of appellant’s fall was not the hole near the sidewalk but the rudeness and unchivalrous conduct of the crowd. This record reveals conclusively only: (1) that appellant was pushed and (2) that she fell when her foot caught in a lawn sprinkler hole adjacent to the sidewalk. It does not show that she would have fallen regardless of the condition of the premises. Whether the appellee was negligent in placing a sprinkler hole immediately 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 pushed, was improperly constructed or operated. Thus, the complaint alleged no breach of a duty owed the business invitee and therefore, it could conclusively be said that under the allegations of the complaint, the unruly crowd was the sole proximate cause of plaintiff’s injury. Here there are facts in the depositions and affidavits from which a jury could find that the premises were not maintained in a reasonably safe condition for the purposes for which they were used.
The facts before the trial court do not when viewed in the light of these rules, conclusively establish that the appellant’s injury was not the result of the negligence of the appellees. Cf. Stock v. Gross, Fla. App.1966, 186 So.2d 827.
It is well established that the issue of contributory negligence is ordinarily for the jury. City of Williston v. Cribbs, Fla. 1955, 82 So.2d 150; Murrell v. Vick, Fla.App.1965, 178 So.2d 133. We cannot say that appellant was proved to be contributorily negligent as a matter of law because she did not wait until the crowd had thinned.
Reversed and remanded.
BARKDULL, Judge, dissents.
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Wills v. Sears, 351 So. 2d 29 (Fla. 1977)…ons where summary judgment procedures historically have been employed with special care. Holl v. Talcott, supra; Stephens v. Moody, 225 So. 2d 586 (Fla.lst DCA 1969); Maury v. City Stores, Inc., 214 So. 2d 776 (Fla.3d DCA 1968); Suhr v. Dade County, 198 So. 2d 837 (Fla.3d DCA 1967). The necessity for exercise of such caution is emphasized by virtue of this Court’s adoption of comparative negligence, Hoffman v. Jones, 280 So. 2d 431 [*31] (Fla.1973), and its recent abolition of assumption of risk as an absolut…
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U. S. Fire Ins. Co. v. Progressive Cas. Ins. Co. & Phillip Hurlock, 362 So. 2d 414 (Fla. 2d DCA 1978)…summary judgment procedures historically have been employed with special care. Holl v. Talcott, supra; Stephens v. Moody, 225 So. 2d [*417] 586 (Fla. 1st DCA 1969); Maury v. City Stores, Inc., 214 So. 2d 776 (Fla. 3d DCA 1968); Suhr v. Dade County, 198 So. 2d 837 (Fla. 3d DCA 1967). The necessity for exercise of such caution is emphasized by virtue of this Court’s adoption of comparative negligence, Hoffman v. Jones, 280 So. 2d 431 (Fla.1973), and its recent abolition of assumption of risk as an absolute def…
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Berona Leon v. City OF Miami, 312 So. 2d 518 (Fla. 3d DCA 1975)…did not see the hole in the sidewalk prior to her fall, does not in itself absolve the City of Miami from negligence. It is well established that the issue of plaintiff’s own negligence is ordinarily for the jury. Suhr v. Dade County, Fla.App.1967, 198 So. 2d 837. On the evidence presented in the record on appeal, the issues of negligence and contributory negligence could not properly be resolved by the trial court on motion for summary judgment as jury questions were posed and appellee was not entitled to…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Heps v. Burdine's, Inc., 69 So. 2d 340 (Fla. 1954)
- City OF Williston v. Cribbs, 82 So. 2d 150 (Fla. 1955)
- Beebe v. Kaplan, 177 So. 2d 869 (Fla. 3d DCA 1965)
- Foster v. Gulfstream Press, Inc., 134 So. 2d 270 (Fla. 3d DCA 1961)
- Stock v. Gross, 186 So. 2d 827 (Fla. 4th DCA 1966)
- Murrell v. Vick, 178 So. 2d 133 (Fla. 2d DCA 1965)