OSCAR FRANCIS AND MATTIE FRANCIS, HIS WIFE, APPELLANTS,
v.
GENERAL MOTORS CORPORATION, A DELAWARE CORPORATION, APPELLEE
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The court held that the presence of genuine issues of material fact, even with cross-motions for summary judgment, precludes granting summary judgment.
[1] Summary judgment is improper when genuine issues of material fact exist regarding negligence, contributory negligence, and proximate cause.
[2] The presence of genuine issues of material fact precludes summary judgment, even when both parties move for summary judgment.
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued for injuries allegedly caused by an automobile undercoating product, claiming it was inherently dangerous and lacked warnings. The def…
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PER CURIAM.
This appeal is by the plaintiffs below from an adverse summary judgment. Plaintiff Oscar Francis alleged injuries, proximately caused by his use over an extended period of an automobile undercoating product supplied by the defendant; that the product was inherently dangerous; and that the danger to users was not labeled or shown on the products containers. His wife Mattie Francis joined, claiming loss of consortium. Compensatory and punitive damages were sought.
The defendant denied that the product was inherently dangerous to users; averred it had no duty to give a warning with respect thereto, or to instruct the plaintiff on the use thereof; and pleaded contributory negligence.
We are impelled to conclude it was error to enter summary judgment for the defendant. The pleadings and evidence before the court showed the existence of genuine issues of material fact, relating to negligence, contributory negligence and proximate cause, which properly could not be resolved on motion for summary judgment. See Tampa Drug Co. v. Wait, Fla. 1958, 103 So. 2d 603; Williams v. Caterpillar Tractor Co., Fla.App.1963, 149 So. 2d 898; Edwards v. California Chemical Co., Fla.App. 1971, 245 So. 2d 259.
We hold to be without merit the contention of the appellee that where the plaintiffs as well as the defendant moved for summary judgment the court thereby became entitled to decide the case by summary judgment notwithstanding the presence of triable issues as to material facts which were in dispute. Where genuine issues of material fact are shown to exist, the fact that both plaintiff and defendant filed motions for summary judgment claiming the non-existence of such issues, will not serve to dissipate them, nor will it entitle the court to decide such triable issues without trial. Shaffran v. Holness, Fla.1957, 93 So. 2d 94, 98; West Shore Restaurant Corp. v. Turk, Fla.1958, 101 So. 2d 123, 126. See 6 Moore’s Federal Practice, 2 Ed., § 56.13, wherein it is stated: ‘.‘The well-settled rule is that cross-motions for summary judgment do not warrant the court in granting summary judgment unless one of the moving parties is entitled to judgment as a matter of law upon facts that are not genuinely disputed.”
Accordingly, the summary judgment is reversed.
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Sanford Ratner v. Willa Mae Hensley, 303 So. 2d 41 (Fla. 3d DCA 1974)…[*44] Initially, we point out that it has been held that even though both parties move for summary judgment, the court may not enter a summary judgment if a genuine issue of material fact exists. Francis v. General Motors Corporation, Fla.App.1973, 287 So. 2d 146. The courts of this State are bound to give full faith and credit to a judgment of a sister state. Workingmen’s Co-Operative Bank v. Wallace, 151 Fla. 329, 9 So. 2d 731 (1942). This rule is subject to the principle that the courts of this State are…
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Daniel Laurent, Inc. v. Coral Television Corp., 431 So. 2d 1047 (Fla. 3d DCA 1983)…7); General Development Utilities, Inc. v. Davis, 375 So. 2d 20 (Fla. 2d DCA 1979); State Farm Fire and Casualty Co. v. Oskierko, 334 So. 2d 61 (Fla. 3d DCA 1976); Spear v. Martin, 330 So. 2d 543 (Fla. 4th DCA 1976); Francis v. General Motors Corp., 287 So. 2d 146 (Fla. 3d DCA 1973), cert. denied, 293 So. 2d 716 (Fla.1974); Lovelace v. Sobrino, 280 So. 2d 514 (Fla. 3d DCA 1973); Coquina Ridge Properties v. East West Co., 255 So. 2d 279 (Fla. 4th DCA 1971); Spencer v. Halifax Hospital District, 242 So. 2d 143…
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State Farm Fire & Cas. Co. v. Oskierko, 334 So. 2d 61 (Fla. 3d DCA 1976)…ved for summary judgment, the trial court is not required, to enter a summary judgment. Osceola County v. Goodman, Fla.App.1973, 276 So. 2d 210; Lovelace v. Sobrino, Fla.App. 1973, 280 So. 2d 514; Francis v. General Motors Corporation, Fla.App.1973, 287 So. 2d 146.…
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
- Tampa Drug Co. v. Wait, 103 So. 2d 603 (Fla. 1958)
- Shaffran v. Holness, 93 So. 2d 94 (Fla. 1957)
- W. Shore Rest. Corp. v. Turk, 101 So. 2d 123 (Fla. 1958)
- The City OF Miami v. Hamilton, 101 So. 2d 123 (Fla. 1957)
- Gen. Cap. Corp. v. TEL Serv. Co., Inc., 245 So. 2d 259 (Fla. 2d DCA 1971)
- Williams v. Caterpillar Tractor Co., Inc., 149 So. 2d 898 (Fla. 2d DCA 1963)