SILVIA LAICHAK, APPELLANT,
v.
DEBRA BACON, A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND, MILDRED BACON, AND MILDRED BACON, INDIVIDUALLY, APPELLEES
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The defendant appeals from a summary judgment on liability in favor of the minor plaintiff and her mother for injuries sustained while operating the defendant's power lawn mower. The court reverses, finding genuine issues of material fact precluding summary judgment, including whether the mower violated child labor laws and whether the plaintiff was contributorily negligent.
The trial court erred in granting summary judgment because the plaintiffs did not conclusively demonstrate the absence of material factual issues. Genuine disputes of fact existed regarding the mower blade length and whether the plaintiff was contributorily negligent.
“the plaintiffs did not carry their burden of showing conclusively that there were no material issues of fact to be tried”
Establishes the standard for summary judgment and the basis for reversal
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Join FLexlaw to unlock all legal intelligenceA thirteen-year-old girl was injured while operating the defendant's power lawn mower with the defendant's permission. The defendant denied the materi…
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This is an interlocutory appeal, brought by the defendant, from an adverse summary judgment entered in favor of the plaintiffs on the issue of liability.
The plaintiffs’ complaint was for damages resulting from personal injuries sustained by the minor plaintiff, a thirteen year old girl, while she was being allowed by the defendant to operate defendant’s power lawn mower.
The defendant’s answer denied the material allegations of the complaint and by way of affirmative defense charged that the minor plaintiff was guilty of contributory negligence.
Interrogatories were propounded and answered. Depositions were also taken. Plaintiffs moved for summary judgment on the issue of liability and defendant filed her affidavit with photographs of the mower attached. A hearing was held on the motion which resulted in the entry of an order granting summary judgment for the plaintiffs on the issue of liability.
The determinative point on appeal is whether the trial court erred in granting plaintiffs a summary judgment on the issue of liability. We1 find error and reverse.
*753It is our view that the plaintiffs did not carry their burden of showing conclusively that there were no material issues of fact to be tried. Tompkins v. Rosenberg, Fla.App.1967, 194 So.2d 688. It appears to us, from our review of the record, that there are genuine issues of fact such as: (1) whether the power lawn mower blade was more or less than twenty-four inches long. If it were less than twenty-four inches long then there would be no violation of the provisions of the child labor laws, § 450.061(1) (a) Fla.Stat. F.S.A.; (2) whether the plaintiff was guilty of contributory negligence. E. g., Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So.2d 366.
For the reasons stated, the order granting summary judgment on the issue of liability is reversed.
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Citator
Cited By
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Gorman v. Univ. OF Miami, 340 So. 2d 1180 (Fla. 3d DCA 1976)…interrogatories, affidavits and other evidentiary matters filed in the cause show that there is a genuine issue of material fact. See Central Investments, Inc. v. Old Southern Golf Utility Corp., 197 So. 2d 17 (Fla. 4th DCA 1967); Laichak v. Bacon, 223 So. 2d 752 (Fla. 3d DCA 1969), and Stringfellow v. State Farm Fire & Casualty Co., 295 So. 2d 686 (Fla. 2d DCA 1974). Dr. Gorman contends that he had earned tenure under his contract of employment which included the provisions of the faulty manual of the Univ…
Authorities Cited
- Matson v. TIP TOP Grocery Co., Inc., 151 Fla. 247 (Fla. 1942)
- In re Application of Marion E. Sibley to Resign from the Bar of the State of Fla., 151 Fla. 225 (Fla. 1942)
- Tompkins v. Montague Rosenberg, 194 So. 2d 688 (Fla. 3d DCA 1967)