WENCESLAO MANUEL LORA, APPELLANT,
v.
MAULE INDUSTRIES, INC., APPELLEE
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Plaintiff Wenceslao Lora appealed from a summary judgment dismissing his negligence action against Maulé Industries, Inc. The trial court held that Lora assumed the risk of the defendant's negligence as a matter of law, but the appellate court reversed, finding that a genuine issue of material fact remained regarding whether Lora appreciated the danger involved.
The court held that summary judgment was improper because the defendant failed to conclusively establish all essential elements of assumption of risk, specifically the element that the plaintiff appreciated the nature, character, and extent of the danger involved. A genuine issue of material fact remained on this element, precluding summary judgment as a matter of law.
[1] The doctrine of assumption of risk requires voluntariness of exposure to danger and knowledge and appreciation of the danger.
[2] A party moving for summary judgment must conclusively establish that there is no genuine issue of material fact.
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Join FLexlaw to unlock all legal intelligence“The essential elements of the doctrine of assumption of risk are voluntariness of exposure to danger and knowledge and appreciation of the danger.”
Establishes the three-part test for assumption of risk that the court applied to review whether summary judgment was proper.
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Join FLexlaw to unlock all legal intelligencePlaintiff Lora sued defendant Maulé Industries for damages caused by the defendant's negligence. The defendant answered and asserted defenses of contr…
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Plaintiff appeals from a final summary judgment for the defendant, Maulé Industries, Inc.
Plaintiff sued the defendant for damages allegedly caused by its negligence. Defendant answered and alleged, inter alia, the defenses of contributory negligence and assumption of risk. After some discovery the defendant moved for and was granted a summary final judgment. The plaintiff has appealed.
The question on appeal is whether the trial court erred in ruling, and holding, as a matter of law that the plaintiff assumed the risk created by the negligence of the defendant. The trial judge stated “the record * * * establishes that he (plaintiff) assumed the risk here.”
The essential elements of the doctrine of assumption of risk are voluntariness of exposure to danger and knowledge and appreciation of the danger. 23 Fla. Jur. Negligence § 70 and Bartholf v. Baker, Fla.1954, 71 So.2d 480.
Plaintiff concedes that the holding of the trial court may have been proper as to the voluntariness of exposure and knowledge of the danger. He argues that there was no evidence presented to show that he appreciated the nature, character and extent of the danger involved. We concur. While there may have been some evidence that plaintiff appreciated the danger involved we do not find that this necessary element was conclusively established by the defendant. See Bartholf, supra. A motion for summary judgment should be denied where the moving party fails to conclusively establish that there is no genuine issue of material fact. Holl v. Talcott, *744Fla.1966, 191 So.2d 40; Shollenberger v. Baskin, Fla.App. 1969, 227 So.2d 79; Chirico v. Dew, Fla.App.1959, 113 So.2d 597; and Warring v. Winn-Dixie Stores, Fla.App. 1958, 105 So.2d 915.
There remains in this cause a genuine issue of material fact as to whether the plaintiff appreciated the danger involved because the defendant did not conclusively carry its burden of establishing this element in its motion for summary judgment.
Having determined that the summary final judgment was improperly rendered, there is no need to comment on the other points plaintiff relies upon for reversal.
The summary final judgment for the defendant is reversed and the cause remanded for further action consistent herewith.
It is so ordered.
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Concetta REA and Frank Rea v. Leadership Hous., Inc., 312 So. 2d 818 (Fla. 4th DCA 1975)…sole negligence was the proximate cause of the injury ordinarily presents jury questions precluding summary judgment. 30 Fla.Jur., Summary Judgment, sec. 6; Jones v. Crews, Fla.App. 1967, 204 So. 2d 24; Lora v. Maule Industries, Inc., Fla.App.1970, 235 So. 2d 743; see also McRae v. Winn Dixie Stores, Inc., Fla.App.1969, 227 So. 2d 214; Railway Express Agency, Inc. v. Garland, Fla.App. 1972, 269 So. 2d 708; Veiga v. South Carolina Insurance Company, Fla.App.1973, 274 So. 2d 10. Specifically, the factual matt…
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Farmhand, Inc. v. Brandies, 327 So. 2d 76 (Fla. 1st DCA 1976)…, 1972) (new trial for a plaintiff against a landowner when there was conflicting evidence of whether the water pipe over which she stumbled was “patent, obvious, visible, and open to ordinary observation by anyone”); Lora v. Maule Industries, Inc., 235 So. 2d 743 (Fla.App.3rd, 1970) (assumption of risk requires appreciation of the nature, character and extent of the danger); Watson v. Drew, 197 So. 2d 53 (Fla.App.4th, 1967) (assumption of risk defense requires showing that plaintiff knew of the “very hazard”…
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Acosta v. Daughtry, 268 So. 2d 416 (Fla. 3d DCA 1972)…but a player does not assume a risk which cannot reasonably be anticipated, and which may be the result of improper and unauthorized negligent action of another player.” Again this Court, speaking in Lora v. Maule Industries, Inc, Fla.App. 3, 1970, 235 So. 2d 743, and in reversing a defendant’s summary judgment, followed plaintiff’s argument “that there was no evidence presented to show that he appreciated the nature, character and extent of the danger involved .” It is consequently the law that “actual know…
Previewing 3 of 5 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)
- Bartholf v. Baker, 71 So. 2d 480 (Fla. 1954)
- City OF Miami v. Lager, 105 So. 2d 915 (Fla. 3d DCA 1958)
- Shollenberger v. Baskin, 227 So. 2d 79 (Fla. 4th DCA 1969)
- Chirico v. Elzie L. DEW, 113 So. 2d 597 (Fla. 2d DCA 1959)