RAFAEL SALGUEIRO, ADMINISTRATOR OF THE ESTATE OF RAFAEL SALGUEIRO, DECEASED AND RAFAEL SALGUEIRO, INDIVIDUALLY, APPELLANT,
v.
MIRIAM HELLER FIUMARA, APPELLEE
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In this negligence action, the court reversed a summary judgment granted to defendant Miriam Heller Fiumara in a vehicular accident case. The plaintiff-administrator of the deceased Rafael Salgueiro's estate appealed after the trial court found no genuine issues of material fact. The appellate court found conflicting testimony about the accident's circumstances precluded summary judgment.
The appellate court held that genuine issues of material fact existed precluding summary judgment because the evidence presented conflicting accounts of the accident's circumstances, and such factual disputes must be resolved at trial.
[1] On appeal, facts must be viewed in a light most favorable to the plaintiff when determining the propriety of an entry of summary judgment for the defendant.
[2] Genuine issues as to material facts preclude the granting of summary final judgment in a negligence action.
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Join FLexlaw to unlock all legal intelligence“It is fundamental that for the purposes of determining the propriety of an entry of summary judgment for the defendant, on appeal the facts will be viewed in a light most favorable to the plaintiff.”
Establishes the standard of review for summary judgment appeals, requiring plaintiff-favorable interpretation of facts.
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Join FLexlaw to unlock all legal intelligenceOn September 29, 1971, Rafael Salgueiro was struck by an automobile operated by Miriam Heller Fiumara while crossing the street. Salgueiro filed a com…
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PER CURIAM.
Plaintiff-appellant appeals a final summary judgment entered in favor of defendant-appellee in this negligence action.
On September 29, 1971 at approximately 6:45 P.M. the deceased, Rafael Salgueiro, while crossing the street was struck by an automobile owned and operated by the defendant-appellee, Miriam Heller Fiumara, and thereby sustained personal injuries. In May 1972 Rafael Salgueiro filed a complaint for damages against the defendant and shortly thereafter on October 28, 1972 complainant died. Subsequently the administrator of Rafael Salgueiro’s estate, plaintiff-appellant herein, filed a second amended complaint alleging that the death of the deceased resulted from the accident on September 29, 1971. Defendant-appel-lee answered denying that she negligently operated her vehicle and further alleging that the deceased’s conduct was so negligent as to constitute the sole cause of his injuries and death. Thereafter, defendant moved for summary judgment. After hearing oral argument thereon, the trial court, finding no genuine issues as to any material facts, entered final summary judgment in favor of defendant-appellee. Plaintiff appeals therefrom. We reverse.
It is fundamental that for the purposes of determining the propriety of an entry of summary judgment for the defendant, on appeal the facts will be viewed in a light most favorable to the plaintiff. See, 2 Fla.Jur. Appeals § 307 (1963) and cases cited therein.
A review of the record on appeal reflects that at her deposition the defendant testified that at the time of the accident it was still daylight, the road was dry and her view was clear and unobstructed.
She further testified that she had driven her vehicle across the intersection by a car length or two when she felt an impact and out of her right rear window saw the deceased fall. One of the police officers who arrived at the scene testified that he detected the odor of alcohol emanating from the deceased, but could not state whether the deceased was in an intoxicated state. Rafael Salgueiro by answer to written interrogatories propounded to him prior to his death stated that before crossing the intersection he saw defendant’s vehicle down the block and it had not reached the corner stop sign. He then proceeded to cross the street and was approximately a foot or two from the opposite curb at the time he was struck. Based upon the above pretrial testimony, we conclude that there were genuine issues as to material facts to preclude the granting of summary final judgment. Cf. Metropolitan Dade County v. Lucas, Fla.App.1969, 228 So. 2d 292.
Accordingly, the judgment herein appealed is reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
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Johnson v. Rinker Materials, Inc., 520 So. 2d 684 (Fla. 3d DCA 1988)…y law, all conflicts in the evidence and inferences therefrom are stated in a light most favorable to the plaintiff, the party against whom the summary judgment was entered. See, e.g., Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Salgueiro v. Fiumara, 305 So. 2d 5 (Fla. 3d DCA 1974); 49 Fla.Jur.2d Summary Judgment § 54 (1984). . Cf. Marks v. Delcastillo, 386 So. 2d 1259 (Fla. 3d DCA 1980) (no active security in face of continuing trespass; plaintiff was licensee), rev. denied, 397 So. 2d 778 (Fla.1981); Libb…
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Wilford Alexander and Cynthia Alexander v. Allen, 538 So. 2d 1372 (Fla. 3d DCA 1989)…e motion and entered judgment accordingly. In reviewing an order on final summary judgment, this court must view the record in a light most favorable to appellants and indulge every reasonable inference of fact in their favor. Salgueiro v. Fiumara, 305 So. 2d 5 (Fla.3d DCA 1974). We assume, therefore, that Allen began to scream and continued to scream until the gunmen started shooting. Where an injury is caused by the active conduct of the putative tortfeasor, an ordinary negligence standard applies.1 Hix…
Authorities Cited
- Metro. Dade Cnty. v. Lucas, 228 So. 2d 292 (Fla. 3d DCA 1969)