LILY AUERBACH AND CONSOLIDATED AMERICAN INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLANTS,
v.
JAMES R. ALTO AND MARY T. ALTO, HIS WIFE, APPELLEES
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In this interlocutory appeal, the court affirmed summary judgment on liability in a dog bite case where the defendant's dog charged at a motorcycle, causing the rider to lose control and sustain injuries. The appellate court held that the trial court properly excluded a late-filed affidavit and correctly found no genuine issue of material fact regarding proximate cause.
The court held that the trial court was correct in refusing to consider the untimely-filed affidavit, as Florida Rules of Civil Procedure mandate that affidavits in opposition to summary judgment motions must be filed prior to the hearing. The court also held that summary judgment on liability was proper because physical contact between the dog and the victim was established, distinguishing this case from precedents where no such contact occurred.
[1] Affidavits in opposition to a motion for summary judgment must be filed prior to the day of the hearing.
[2] A trial court does not err in refusing to consider an affidavit that is not timely filed in opposition to a motion for summary judgment.
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Join FLexlaw to unlock all legal intelligence“Both the Florida Rules of Civil Procedure and the cases interpreting these rules have made it mandatory that affidavits in opposition to motions for summary judgment must be filed prior to the day of hearing.”
Establishes the procedural rule requiring timely filing of affidavits opposing summary judgment motions.
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Join FLexlaw to unlock all legal intelligenceJames Alto was riding a motorcycle with his wife on the rear when a dog owned by defendant Mrs. Auerbach charged into the street in front of the motor…
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Defendant-appellants take this interlocutory appeal from an order granting summary judgment on the issue of liability in favor of plaintiffs.
Plaintiff James Alto was riding on his motorcycle on the rear of which was seated his wife. A dog owned by Mrs. Auer-bach, the defendant, charged into the street in front of the motorcycle and began to chew on James Alto’s tennis shoe. James then attempted to get the motorcycle in gear and escape from the dog; however, he was going too slow and the cycle reared up and fell over. As a result, James broke his leg and his wife also sustained injuries. Plaintiffs filed suit against defendants, Mrs. Auerbach and the Consolidated American Insurance Company. In her deposition, Mrs. Auerbach testified that she was at work at the time of the accident, of which she learned subsequently from her son who informed her their dog “Luke” went after the motorcycle. Plaintiffs moved for summary judgment and at the time of hearing counsel *568for defendants offered the affidavit of one Mr. Thomas. The court rejected the affidavit as not timely filed and granted plaintiffs’ motion for summary judgment on the issue of liability.
On appeal, appellants contend that the trial court erred in refusing to consider the eyewitness’ affidavit proffered at the hearing on plaintiffs’ motion for summary judgment. We must reject this contention.
Both the Florida Rules of Civil Procedure and the cases interpreting these rules have made it mandatory that affidavits in opposition to motions for summary judgment must be filed prior to the day of hearing. RCP 1.510(c), 31 F.S.A.; Cleveland Trust Company v. Foster, Fla.1957, 93 So.2d 112; Siciliano v. Hunerberg, Fla.App.1961, 135 So.2d 750; Hardcastle v. Mobley, Fla.App.1962, 143 So.2d 715; Henry Stiles, Inc. v. Evans, Fla.App.1968, 206 So.2d 65. Accordingly, we hold the trial judge to be eminently correct in refusing to consider the affidavit proffered on the morning of the hearing on plaintiffs' motion for summary judgment.
Appellants further contend that the trial court erred in ruling that no genuine issue remained as to proximate cause.
In support of their argument, defendant-appellants cite Brandeis v. Felcher, Fla.App.1968, 211 So.2d 606 and English v. Seachord, Fla.App.1971, 243 So.2d 193. However, we noted that in these two cases the element of physical contact between the dog and the victim was lacking. The record on appeal in the case sub judice clearly reflects that the appellant’s dog, “Luke”, ran out in front of appellee’s motorcycle and began biting James Alto’s leg and chewing on his shoe. Thus, the case at bar is readily distinguishable from the two cases proffered by the appellants and, therefore, this argument must fail.
We also considered appellants’ remaining point on appeal and found it to be without merit.
Accordingly, the order granting summary judgment on the issue of liability is hereby affirmed.
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Allstate Ins. Co. v. Greenstein, 308 So. 2d 561 (Fla. 3d DCA 1975)…1, the owner of a dog is cast virtually in the role of an insurer, and he is strictly liable for damage done to persons by his dog. English v. Seachord, Fla.App.1971, 243 So. 2d 193, aff’d., Fla. 1972, 259 So. 2d 136; Auerbach v. Alto, Fla.App.1973, 281 So. 2d 567; Brandeis v. Felcher, Fla.App.1968, 211 So. 2d 606; Knapp v. Ball, Fla.App.1965, 175 So. 2d 808. The defense of contributory negligence, before the Supreme Court supplanted it with the doctrine of comparative negligence in Hoffman v. Jones, supra,…
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Hartford Accident & Indem. Co. v. Gillette, 519 So. 2d 1059 (Fla. 1st DCA 1988)…opposition to motions for summary judgment must be filed prior to the day of the hearing. Based on the uncon-troverted evidence before the court as of the date of the hearing, the partial summary judgment was properly granted. See Auerbach v. Alto, 281 So. 2d 567 (Fla.3d DCA 1973), cert. denied, 297 So. 2d 31 (Fla.1974). Even assuming arguendo the court was obligated to consider the affidavit and deposition of Kipp, we find the trial court properly denied the motion for rehearing since no evidence was presen…
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Burton v. GOV Contracting Corp., 552 So. 2d 293 (Fla. 2d DCA 1989)…unteraffidavits must be filed prior to the date of hearing on the motion for summary [*298] judgment. See, e.g., Davis v. Lyall & Lyall Veterinarians, P.A., 506 So. 2d 1072 (Fla. 5th DCA), review denied, 513 So. 2d 1062 (Fla.1987); Auerbach v. Alto, 281 So. 2d 567 (Fla. 3d DCA 1973), cert. denied, 297 So. 2d 31 (Fla.1974); and Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962). In addition to the cases previously discussed, Auerbach and Hardcastle also rely on the decision of Cleveland Trust Company v. F…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962)
- The Cleveland Tr. Co. v. Athene S. Foster and Jack Wentz, 93 So. 2d 112 (Fla. 1957)
- Sol Brandeis and Lona Brandeis v. Felcher, 211 So. 2d 606 (Fla. 3d DCA 1968)
- English v. Seachord, 243 So. 2d 193 (Fla. 4th DCA 1971)
- Siciliano v. Hunerberg, 135 So. 2d 750 (Fla. 2d DCA 1961)
- Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968)