VELIA GOMEZ, A WIDOW INDIVIDUALLY, AND VELIA GOMEZ, AS ADMINISTRATRIX OF THE ESTATE OF LUIS BONIFACIO GOMEZ, DECEASED, APPELLANT,
v.
THE LOWELL DUNN COMPANY, A FLORIDA CORPORATION, APPELLEE

Fla. 3d DCA | 1969-04-22
No. 68-692
Before CHARLES CARROLL, C. J., and PEARSON and SWANN, JJ.
221 So. 2d 800 Florida District Court of Appeal, Third District (1969) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

Summary judgment was improper because material issues of fact existed regarding negligence, contributory negligence, and proximate cause.


Facts & Procedural History

The plaintiff's decedent, an invitee, was driving a loaded dump truck on the defendant's road when the insecure road edge gave way, causing the truck …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the plaintiff below from a summary judgment entered in favor of the defendant, in an action for damages brought under the wrongful death act (§§ 768.01 and 768.02 Fla.Stat., F.S.A.) and survival statute (§ 46.021 Fla.Stat., F.S.A.), alleging negligence of the defendant caused the death of the appellant’s husband.

The plaintiff’s decedent was in the status of an invitee. In McNulty v. Hurley, Fla.1957, 97 So.2d 185, 187, the Supreme Court said: “The owner or occupant owes an invitee the duty of keeping the premises in a reasonably safe condition, and, as plaintiff contends, also to guard against subjecting such person to dangers of which the owner or occupant is cognizant or might reasonably have foreseen.”

The invitee was driving a loaded dump truck, hauling material incident to certain excavation and property development business of the defendant. He was using the most convenient of several roadways maintained and utilized by defendant for its purposes over lands owned by another. The loaded truck weighed over 50,000 *801pounds. There were depressions in the road, avoidance of which could be made by driving to one side. It was alleged the road edge along a bordering waterway was insecure and dangerous, for protection against which there was no barrier or warning, and that it gave way resulting in the accident in which the decedent met his death by drowning in the adjacent water. } & 1

In our opinion the evidence and inferences reasonably to be drawn therefrom favorable to the plaintiff, before the trial court on defendant’s motion for summary judgment, disclosed evidentiary conflict on material issues relating to negligence, contributory negligence and proximate cause, that were properly for a jury’s determination rather than for summary disposition on motion. As the cause is being remanded for trial, we omit a further or detailed comment on the facts or evidence shown.

Reversed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Chimeno v. Fontainebleau Hotel Corp., 251 So. 2d 351 (Fla. 3d DCA 1971)
    …led from is reversed, and the cause is remanded to the circuit court with direction to reinstate the verdict rendered in favor of the plaintiff against the defendant hotel and to enter judgment thereon. . Gomez v. Lowell Dunn Company, Fla.App.1969, 221 So. 2d 800; Prosser Torts, 3rd Ed., § 61, p. 395 (and eases cited, note 69).…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw