SARAH M. BELFLOWER AND CARL BELFLOWER, SR., HER HUSBAND, APPELLANTS,
v.
LEON RISHER AND GERALDINE M. RISHER, HIS WIFE, APPELLEES

Fla. 4th DCA | 1968-01-22
No. 949
CROSS and McCAIN, JJ., concur.
206 So. 2d 256 Florida District Court of Appeal, Fourth District (1968) Positive Treatment
Cited by 8 cases

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Synopsis

Sarah Belflower was injured when she stepped through a rotten plank on defendants' fishing dock. The trial court granted summary judgment for the defendants, but the appellate court reversed, holding that genuine issues of material fact regarding whether the dock was properly inspected and maintained precluded summary judgment as a matter of law.


Holding

The court reversed the summary judgment, holding that genuine issues of material fact existed regarding whether the dock planking was actually defective and whether the defendants' inspection was reasonable under the circumstances. These factual questions could not be resolved on summary judgment and must be determined by a jury.


Key Quotes

“the movant not only admits the basic facts established that are favorable to the adverse party, but also every conclusion or inference favorable to the adversary that might reasonably be inferred from the evidence”

Establishes the standard for evaluating a summary judgment motion—the movant must accept all facts and reasonable inferences favoring the opposing party

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Facts & Procedural History

Mrs. Sarah Belflower, a business invitee, was walking on defendants' fishing dock when she stepped on a rotten and decayed plank that gave way, causin…

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Opinion of the Court
WALDEN, Chief Judge.

WALDEN, Chief Judge.

This negligence suit was terminated by a summary final judgment entered in favor of the defendants. Plaintiffs appeal. We reverse.

The single appellate issue is whether the record discloses an absence of any genuine issue of material fact so as to entitle defendants to summary judgment upon , their motion as a matter of law. F.R.C.P. 1.510(c), 31 F.S.A. In the beginning we are mindful of the long established rule that the movant not only admits the basic facts established that are favorable to the adverse party, but also every conclusion or inference favorable to the adversary that might reasonably be inferred from the evidence.

While walking upon defendant’s fishing dock one day, plaintiff, Sarah Belflower, stepped upon a rotten and decayed plank. It gave way causing her leg to plunge through the wooden decking. She suffered personal injuries as a result.

It is conceded by the parties for the purpose of this appeal that Mrs. Bel-flower occupied the status of a business invitee. The duty, therefore, owed by defendants was to maintain the premises in a reasonably safe condition and to warn of latent dangers of which the defendants might reasonably have known but which were not apparent to the invitee.1

Mrs. Belflower, joined by her husband, alleged in the complaint that certain dock planking had rotted or decayed from the underside; that this was a dangerous condition which was known, or should have been known, to defendants; and that the condition was unknown to Mrs. Belflower. Affidavits of three witnesses, including Mrs. Belflower, related that, despite the strong and safe appearance of the dock, Mrs. Belflower’s leg had plunged through •a “rotten or decayed plank.” In other words, plaintiffs maintain that the applicable duty was breached by the failure of the defendants to replace or to warn of the rotten plank in the dock.

To support their motion for summary judgment the defendants filed affidavits to the effect that the dock had been repaired and inspected some days prior to the event in question, and that no defect was found.

A summary proceeding is not a trial by affidavit and we believe that the question of negligence was one to be determined by a jury. It hinges on whether the planking was defective and, if so, whether the inspection which was made was reasonable under the circumstances.2

*258The positions asserted by the parties are incompatible and, as such, create a genuine issue which bars summary judgment. The existence of the rotten plank is not reconcilable with a recent reasonable inspection. Was the inspection reasonable which failed to disclose the defect? Should defendants have known of the condition and either replaced the plank or warned Mrs. Bel-flower of it? These questions can properly be answered only by a jury, it being entitled to weigh the evidence in the light of common sense and every day experience. They cannot be answered in summary proceeding because the inferences favorable to plaintiff make it permissible to resolve the issues against the defendants and to find that a reasonable inspection would have revealed the decayed plank.

The appealed judgment is reversed and the cause remanded.

Reversed.

CROSS and McCAIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Partelow v. Edgar, 219 So. 2d 72 (Fla. 4th DCA 1969)
    …t owed to her a duty to maintain the premises in a reasonably safe condition and a further duty to warn of latent dangers of which she knew or might reasonably have known but which were not apparent to the invitee. Belflower v. Risher, Fla.App.1968, 206 So. 2d 256. Had a breach of these duties been shown, defendant would be liable for any resulting injuries absent contributory negligence. Conversely, where no breach of duty is shown, liability cannot result. An owner of property is not an insurer of the safet…
  • Egan v. Wash. Gen. Ins. Corp., 240 So. 2d 875 (Fla. 4th DCA 1970)
    …his time. Rule 1.510 (c). On a motion for summary judgment, it is not the function of the trial court to [*877] decide the disputed issues of fact, but to grant a summary judgment only if no genuine dispute exists. Belflower v. Risher, Fla.App.1968, 206 So. 2d 256; McCauley v. Eastern Steamship Lines, Inc., Fla.App.1968, 211 So. 2d 72. In this posture, defendant’s contention both below and on this appeal is that inasmuch as the bolt corroded over the 10-month period, plaintiff’s loss comes within the “gradua…
  • McCAULEY v. E. S.S. Lines, Inc., 211 So. 2d 72 (Fla. 4th DCA 1968)
    …sence of material issues of fact and is not designed as a trial by affidavit2 or deposition. Reversed. WALDEN, C. J., and DOWNEY, JAMES C., Associate Judge, concur. . Holl v. Talcott, Fla.1966, 191 So. 2d 40. . Belflower v. Risner, Fla.App.1968, 206 So. 2d 256.…

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