ETHEL G. BYRNES, APPELLANT,
v.
PUBLIX SUPER MARKETS, INC., A FLORIDA CORPORATION, AND FLORIDA DUST CONTROL SERVICE, INC., A FLORIDA CORPORATION, APPELLEES
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Ethel Byrnes appealed a summary judgment dismissing her negligence claim against Publix Super Markets for injuries sustained when she tripped over a dust mat at the store entrance. The appellate court reversed, finding genuine issues of material fact precluded summary disposition and the case should proceed to trial.
Summary judgment was inappropriate because genuine issues of material fact precluded summary disposition of this negligence case. The issues of the premises condition, mat placement, duty owed to plaintiff, and plaintiff's contributory negligence required fact-finding by a jury rather than summary determination.
[1] Genuine issues of material fact preclude summary disposition.
[2] Negligence cases, particularly those involving questions of negligence or contributory negligence, should be resolved in favor of a jury trial when the case is close.
Previewing 2 of 4 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“Negligence cases are extremely troublesome due to the varied fact situations which they present. It has been held that where the case is extremely close on the question of negligence or contributory negligence, 'doubt * * * should always be resolved in favor of a jury trial'”
Establishes the standard that doubtful negligence cases should go to a jury rather than be resolved by summary judgment
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Join FLexlaw to unlock all legal intelligencePlaintiff Ethel Byrnes alleged she tripped and fell at a Publix Super Markets location upon entering the premises, claiming the fall was caused by a d…
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Plaintiff appeals a summary final judgment entered in favor of the defendants. Our review of the record convinces us that there are genuine issues of material fact so as to preclude a summary disposition. Allen v. Kamp’s Beauty Salon, Inc., Fla.App.1965, 177 So.2d 678; Holmes v. Forty-Five Twenty-Five, Inc., Fla.App.1961, 133 So.2d 651; Humphrys v. Jarrell, Fla.App.1958, 104 So.2d 404; Cowan v. Turchin, Fla.App.1972, 270 So.2d 449, Fourth District Court of Appeal opinion filed December 20, 1972; Jenkins v. Brackin, Fla.App.1965, 171 So.2d 589. See also Luckey v. City of Orlando, Fla.App.1972, 264 So.2d 99.
As was pointed out in Holmes v. Forty-Five Twenty-Five, Inc., supra, 133 So.2d at p. 652:
“Negligence cases are extremely troublesome due to the varied fact situations which they present. It has been held that where the case is extremely close on the question of negligence or contributory negligence, ‘doubt * * * should always be resolved in favor of a jury trial’ ...”
In the instant case plaintiff alleged that upon entering the premises of Publix that “she was caused to trip and fall over said dust rug or mat because of the dangerous and defective condition of said mat and/or by reason of the improper placement of said mat and/or by reason of the fact that said mat was placed in a negligent and careless manner upon the floor of the Defendant’s PUBLIX premises in the entrance way thereof.”
In addition to denying the allegations with respect to the circumstances under which plaintiff was alleged to have tripped and fallen defendants claim, among other things, that plaintiff was guilty of contributory negligence. There are genuine issues of fact with respect to the duty owed to the plaintiff, the condition of the premises including the placement of the dust rug as well as the plaintiff’s own contributory negligence which should be evaluated and determined by a jury. The following observations made by the court in Nance v. Ball, Fla.App. 1961, 134 So.2d 35, 37-38, are pertinent:
“Some cases are clearly disposable by summary judgment. There are also marginal cases posing colorable issues which the trial court may consider so weakly supported as to indicate the futility of a full hearing on the merits. In such a case, where adherence to the rule of caution results in a denial of summary judgment, the court may feel that there has been an unjustified extension of fruitless litigation. Our own experience attests an occasional impulse to amputate at once rather than face the prospect of surgery by painful stages, but herein lies the occasional margin of error.
“The trial court may be convinced that a doubtful or marginal case would be practically unprovable, and most frequently that could be the net result. We do not apprehend, however, that the denial of summary judgment in such cases would likely result in ultimate miscarriage of justice. There are other stages along the procedural panorama where the court may terminate a case or control its direction, viz., (1) on motion for directed verdict at the conclusion of *220plaintiff’s case, (2) on motion for directed verdict at the conclusion of all the evidence, (3) on motion for a new trial, and (4) on motion for judgment notwithstanding the verdict. There remains also the possibility that further proceedings might bring out added factors which could change the complexion of the case.”
Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent herewith.
Reversed and remanded.
CROSS and MAGER, JJ., concur.
OWEN, J., dissents.
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Stewart v. Boho, Inc., 493 So. 2d 95 (Fla. 4th DCA 1986)…ublesome due to the varied factual situations which they present. It has been held that where the case is extremely close on the question of negligence ... doubt ... should always be resolved in favor of a jury trial.” Byrnes v. Publix Supermarkets, 272 So. 2d 218, 219 (Fla. 4th DCA 1973), quoting from Holmes v. Forty-Five Twenty-Five, Inc., 133 So. 2d 651, 652 (Fla. 3d DCA 1961). With specific reference to the issue of the reasonable forseeability of Stewart’s injuries, Florida law embodies a strong prefere…
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Bella Phillips and Thom Phillips v. Hartford Cas. Ins. Co., 373 So. 2d 415 (Fla. 4th DCA 1979)…e said the business invitee was entitled to be warned by the storekeeper of any defects and a jury should decide the issues of lack of warning, existence of defects, [comparative] negligence and others. See also Brynes v. Publix Super Markets, Inc., 272 So. 2d 218 (Fla. 4th DCA 1973); Suhr v. Dade County, 198 So. 2d 837 (Fla. 3d DCA 1967). The summary judgment is reversed and the cause remanded for further proceedings. REVERSED and REMANDED. CROSS, J., concurs. LETTS, J., dissents with opinion.…
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LE Mieux v. Miami Dade Cmty. Coll., 448 So. 2d 560 (Fla. 3d DCA 1984)…t, 191 So. 2d 40 (Fla.1966); McCoy v. Hoffmeister, 435 So. 2d 989 (Fla. 5th DCA 1983); Moore v. Freeman, 396 So. 2d 276 (Fla. 3d DCA 1981), and cases cited; Dawson v. Scheben, 351 So. 2d 367 (Fla. 4th DCA 1977); Byrnes v. Publix Super Markets, Inc., 272 So. 2d 218 (Fla. 4th DCA 1973). Therefore, the judgment appealed is reversed and the cause is remanded for further proceedings. Reversed and remanded.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Humphrys v. Jarrell, 104 So. 2d 404 (Fla. 2d DCA 1958)
- Nance v. Linzy Ball and June Ball, 134 So. 2d 35 (Fla. 2d DCA 1961)
- Jenkins v. Brackin, 171 So. 2d 589 (Fla. 2d DCA 1965)
- Holmes v. Forty-Five Twenty-Five, Inc., 133 So. 2d 651 (Fla. 3d DCA 1961)
- Luckey v. City OF Orlando, 264 So. 2d 99 (Fla. 4th DCA 1972)
- Cowan v. Turchin, 270 So. 2d 449 (Fla. 4th DCA 1972)
- Allen v. Kamp's Beauty Salon, Inc., 177 So. 2d 678 (Fla. 3d DCA 1965)