WILLIAM H. FORREST, AS HUSBAND AND ADMINISTRATOR OF THE ESTATE OF FRANCES JEAN FORREST, DECEASED, APPELLANT,
v.
W. D. CARTER AND LISENBY HOSPITAL, LTD., A LIMITED PARTNERSHIP, APPELLEES
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In this wrongful death and survival action, the trial court granted summary judgment for a physician and hospital in a case involving the death of a pregnant patient and her newborn. The appellate court reversed, holding that genuine issues of material fact existed regarding alleged medical negligence that precluded summary judgment and required jury determination.
Summary judgment was improper because the record revealed numerous genuine issues of material fact material to the case that could not be resolved by the trial judge on summary judgment motion but must be determined by a jury.
[1] A motion for summary judgment requires the moving party to demonstrate the absence of any genuine issue of material fact and entitlement to judgment as a matter of law.
[2] If a genuine issue of material fact exists, summary judgment is improper.
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“the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Establishes the legal standard for summary judgment—genuine issues of material fact must not exist for judgment to be rendered as a matter of law.
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Join FLexlaw to unlock all legal intelligenceOn November 11, 1970, Mrs. Frances Jean Forrest gave birth prematurely at Lisenby Hospital under the care of Dr. W.D. Carter. The baby died a few hour…
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PER CURIAM.
On the morning of November 11, 1970, Mrs. Frances Jean Forrest, a patient of Dr. W. D. Carter at Lisenby Hospital in Bay County, Florida, gave birth prematurely to a baby boy. A few hours later the baby died and that evening Mrs. Forrest died. As a result of his wife’s death, Mr. William H. Forrest, the surviving husband and administrator, sued Dr. Carter and Lisenby Hospital for damages in Bay County Circuit Court. The action was commenced under the wrongful death statute, former F.S. 768.01-768.02, and the survival statute, F.S. 46.021. The complaint, as amended, alleged various acts of professional negligence in the treatment and care of the decedent. The liability insurance carriers were joined as parties defendants. The defendants answered, denied liability, and interposed affirmative defenses of contributory negligence and assumption of risk. Various motions and orders, directed to the pleadings and discovery, were made. A mass of discovery was had, and eight depositions were taken and filed. The defendants ultimately moved for summary final judgment. An expert witness affidavit was filed by the plaintiff. Thereafter, a hearing was had on February 27, 1973, at the conclusion of which the trial court granted the motions for summary judgments. Separate summary final judgments were entered in favor of Dr. Carter and Lisenby Hospital. Separate appeals were taken by the plaintiff from each of those summary judgments. We here consider the appeal taken from the summary final judgment in favor of Dr. Carter. The sole point on appeal relates to the propriety of the entry of the summary judgment.
First, we observe that there is a clear distinction between a motion to dismiss and a motion for summary judgment. They are governed by different rules and civil procedure.- Generally, motions to dismiss are governed by Rule 1.420 RCP, motions for summary judgment by Rule 1.510 RCP. The principles controlling summary judgments have been carefully delineated in the rules and case law. (Rule 1.510 RCP; Connell v. Sledge et al., Fla.App., 306 So. 2d 194, opinion filed January 16, 1975; Holl v. Talcott, Sup.Ct.Fla.1966, 191 So. 2d 40; Visingardi v. Tirone, Sup.Ct.Fla.1966, 193 So. 2d 601; Biro v. Geiser, Sup.Ct.Fla. 1967, 199 So. 2d 461; Scanlon v. Litt, Sup.Ct.Fla. 1966, 191 So. 2d 553; Spencer v. Halifax Hospital District, Fla.App.1st 1970, 242 So. 2d 143; Wilson v. State Road Department, Fla.App.1st 1967, 201 So. 2d 619; Campbell v. Anheuser-Busch, Inc., Fla. App.1972, 265 So. 2d 557; Croft v. York, Fla.App.1st 1.971, 244 So. 2d 161; Hodor v. Sayet, Fla.App.3rd 1967,196 So. 2d 205; Lab v. Hall, Fla.App.4th 1967, 200 So. 2d 556; and Caswell v. Nethery, Fla.App.1st 1972, 258 So. 2d 846) No useful purpose will be served by repeating those principles here. Suffice to say, as the rule itself provides, “the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Emphasis added) If there is a genuine issue as to any material fact then summary judgment may not be entered.
The record before us reveals numerous genuine issues of fact which are material to a proper resolution of the case. Such facts are to be determined by a jury (in cases wherein timely demand for jury trial has been made) and such issues may not be resolved by a trial judge on motion for summary judgment.
At the conclusion on the hearing on the motion for summary judgment the. trial judge, after stating' that the motion would be granted, said “I don’t know what else he could have done.” Neither do we and perhaps a jury will not either. But that determination is not ours. The parties are entitled to have the issues of material fact, including those facts relative to any affirmative defenses (see Hoffman v. Jones, Sup.Ct.Fla.1973, 280 So. 2d 431) resolved by a jury.
Reversed and remanded for further proceedings consistent herewith.
RAWLS, C. J., and BOYER and Mc-CORD, JJ., concur.
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Graff v. McNEIL, 322 So. 2d 40 (Fla. 1st DCA 1975)…RCP . Rule 1.480 RCP . Rule 1.420 RCP . Rule 1.140 RCP . See Dawson, v. Blue Cross Assaociation, Fla. App. 1st 1974, 293 So. 2d 90; Bradham v. Haynes Enterprises, Inc., Fla.App. 1st 1975, 306 So. 2d 568 and Forrest v. Carter, Fla.App. 1st 1975, 308 So. 2d 141. .The procedural propriety of the entry of the summary judgment is the only issue presented squarely for our determination. . Thompson v. City of Jacksonville, Fla.App. 1st 1961, 130 So. 2d 105 . Sup.Ct.Fla.1956, 89 So. 2d 482 . Fla.App. 1st 196…
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Giallanza v. Sands, 316 So. 2d 77 (Fla. 4th DCA 1975)…’s constitutional right to a hearing on genuinely triable issues and a defendant’s inconvenience until the issue of liability is resolved the court is constrained to follow- the precedent of a jury determination. See Forrest v. Carter, Fla.App.1975, 308 So. 2d 141. Accordingly, the summary judgment is reversed and the cause remanded for further proceedings consistent herewith. CROSS and MAGER, JJT., concur. WALDEN, C. J., dissénts, with opinion.…
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Florus F. Norman v. Bank OF Hawthorne, 321 So. 2d 112 (Fla. 1st DCA 1975)…t, may not resolve controverted issues of fact. The principles of law applicable to summary judgment have been heretofore thoroughly discussed by this Court (Connell v. Sledge, Fla.App. 1st 1975, 306 So. 2d 194, Forrest v. Carter, Fla.App. 1st 1975, 308 So. 2d 141 and Burlingham v. Allen, Fla.App. 1st 1975, 317 So. 2d 781, opinion filed August 13, 1975) and nothing will be added to the juris [*113] prudence of this State by again reciting those principles here. We here express no view as to what the true fac…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966)
- Grady Scott Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975)
- Croft v. York, 244 So. 2d 161 (Fla. 1st DCA 1971)
- LAB v. Hall, 200 So. 2d 556 (Fla. 4th DCA 1967)
- Birdsall Constr. Co. & Commercial Union Ins. Co. of N.Y. v. Good Samaritan Hosp. & Fla. Indus. Comm'n, 199 So. 2d 461 (Fla. 1967)
- Hoder v. Maxwell M. Sayet, 196 So. 2d 205 (Fla. 3d DCA 1967)
- Wilson v. State Rd. Dep't of Fla., 201 So. 2d 619 (Fla. 1st DCA 1967)
- Scanlon v. Edward T. Litt, M.D., 191 So. 2d 553 (Fla. 1966)