RUBY O. LADY, A WIDOW, AND RUBY O. LADY, AS ADMINISTRATRIX OF THE ESTATE OF MILTON J. T. LADY, DECEASED, APPELLANTS,
v.
RANDY GRIFFIN, D/B/A CASSELBERRY SHELL SERVICE STATION, ET AL., APPELLEES
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In this wrongful death appeal, the court reversed summary judgment granted to a gas station owner whose pneumatic jack allegedly malfunctioned and caused the death of a customer repairing his car on the premises. The court held that conflicting expert testimony and affidavits regarding the jack's condition and the decedent's potential contributory negligence created genuine material fact disputes precluding summary judgment.
Summary judgment was improper because material fact disputes existed regarding negligence, faulty construction, and contributory negligence. The defendant did not sustain the burden of overcoming all reasonable inferences that there were no genuine material fact issues, and the serious posing of a contributory negligence defense precluded summary judgment.
[1] Summary judgment is premature when conflicting inferences and allegations of fact exist.
[2] Summary judgment procedures should be cautiously applied in negligence cases.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Summary judgment procedures should be cautiously applied in negligence cases.”
Establishes the heightened caution required before granting summary judgment in negligence matters, supporting reversal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMilton Lady was repairing his personal car at Randy Griffin's gas station using a pneumatic bumper jack that Griffin had permitted him to use. While L…
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This is an appeal from an award of final summary judgment in a wrongful death action. We feel, based on the conflicting inferences and allegations of fact, that summary judgment was premature. We therefore reverse.
Milton Lady was repairing his personal car in Randy Griffin’s gas station. Griffin had given Lady permission to use his equipment, including a large pneumatic bumper jack. Lady jacked up his car and was working underneath it when the jack, for some unexplained reason, shot out from underneath causing the car to fall on Lady, killing him.
Numerous affidavits were available to the court; both lay and expert witnesses testified that the jack was of sound construction and worked properly. Different lay and expert witnesses testified concerning the jack’s propensity to malfunction and concerning its unstable and dangerous characteristics of construction.
There is also an issue presented whether Lady was contributorily negligent in not following safety procedures which were outlined to him by Griffin.
In our opinion the defendant did not sustain the burden under Holl v. Talcott, Fla.1966, 191 So.2d 40, of overcoming all reasonable inferences that there were no genuine material fact issues. Further, as this court recently said in Lescrynski v. Middlebrook, Fla.App.1972, 260 So.2d 215, “Summary judgment procedures should be cautiously applied in negligence cases.” See also Stephens v. Moody, Fla.App.1969, 225 So.2d 586, and Suhr v. Dade County, Fla.App.1967, 198 So.2d 837. It is also axiomatic that if there are issues of fact and the slightest doubt remains, summary judgment cannot be granted. Torrence v. Sacred Heart Hospital, Fla.App.1971, 251 So.2d 899.
Additionally, the serious posing of the defense of contributory negligence usually would preclude the issuance of summary judgment. See the cases mentioned in Lescrynski v. Middlebrook, supra.
We hold that there were critical discrepancies in the affidavits presented. These discrepancies involve the material issues of negligence, faulty construction and contributory negligence. Therefore, this cause is reversed and remanded for a full trial on these issues, and consistent with these theories.
Reversed and remanded.
REED, C. J., and WALDEN and CROSS, TJ., concur.
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Berona Leon v. City OF Miami, 312 So. 2d 518 (Fla. 3d DCA 1975)…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.” See Lady v. Griffin, Fla.App. 1972, 264 So. 2d 436. The general rule in Florida is that while a city is not an insurer of the motorist or the pedestrian who travels its streets and sidewalks, City of St. Petersburg v. Roach, 1941, 148 Fla. 316, 4 So. 2d 367, it is, of course, responsible for damage…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Nedda Suhr v. Dade Cnty., 198 So. 2d 837 (Fla. 3d DCA 1967)
- Torrence v. Sacred Heart Hosp., 251 So. 2d 899 (Fla. 1st DCA 1971)
- Lescrynski v. Farnham D. Middlebrook & Allstate Ins. Co., 260 So. 2d 215 (Fla. 4th DCA 1972)
- Stephens v. Moody, 225 So. 2d 586 (Fla. 1st DCA 1969)