BURTON GOLDBERG, APPELLANT,
v.
COLLEEN MCCABE, APPELLEE
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Florida appellate court reversed summary judgment for plaintiff on liability in premises liability case, holding that negligence is a jury question when facts are close and disputed.
Summary judgment on liability is improper in a premises liability case where the facts regarding negligence are close and disputed between the parties.
[1] Summary judgment on the issue of negligence is improper when the facts are close and disputed, and the question should be submitted to the jury.
Previewing 1 of 1 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 issue of negligence is to be determined by the jury rather than the judge”
Citing Maury v. City Stores Company, the court stated the general rule governing negligence determinations.
Plaintiff McCabe fell into a three-foot hole caused by septic tank deterioration while walking a dog at night on defendant Goldberg's unlighted premis…
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NATHAN, Judge.
This is an interlocutory appeal by the defendant, Goldberg, from an order of the trial court granting plaintiff McCabe’s motion for summary judgment as to liability in an action for personal injuries.
Plaintiff McCabe alleges that while walking a dog at night in an unlighted area as a guest or invitee on the defendant’s premises, she fell into a hole approximately three feet wide caused by deterioration of the ground above and around a septic tank and as a result thereof sustained serious injuries. The defendant answered, denied negligence and asserted comparative negligence. Defendant’s manager on the premises testified on deposition that she was advised that the hole was there during the day of the incident and that she had covered it with a heavy air conditioner grating shortly before the plaintiff’s fall. At the time of plaintiff’s fall there was no grating at or near the hole.
The defendant contends that based upon the facts presented, it was error for the trial court to grant summary judgment as to liability. We agree. The general rule is that the issue of negligence is to be determined by the jury rather than the judge. Maury v. City Stores Company, Fla.App.1968, 214 So. 2d 776. As a general rule, where, as here, the case is extremely close on the question of negligence as between the respective parties, doubt should always be resolved in favor of a jury trial. Strickland v. Bradford County Hospital Corporation, Fla.App.1967, 196 So. 2d 765., See also Jones v. Crews, Fla.App.1967, 204 So. 2d 24.
Accordingly, the summary judgment is reversed.
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McCABE v. Walt Disney World Co., 350 So. 2d 814 (Fla. 4th DCA 1977)…ough the vehicle of summary judgment. In short, the questions of the negligence of the appellee and the comparative negligence of the appellant are material issues of fact which exist so as to preclude entry of summary judgment. Goldberg v. McCabe, 313 So. 2d 47 (Fla. 3d DCA 1975). Accordingly, the summary final judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed. Reversed and remanded. ALDERMAN, C. J., and DAUKSCH, J., concur.…
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Passaro v. The City OF Sunrise, 415 So. 2d 162 (Fla. 4th DCA 1982)…CA 1981). Even more importantly, there is an issue as to the comparative negligence of the respective parties and the contribution to be made under § 768.31 Florida Statutes (1981). Hoffman v. Jones, 280 So. 2d 431 (Fla.1973) and Goldberg v. McCabe, 313 So. 2d 47 (Fla. 3d DCA 1975). In our view the foregoing issues are properly issues for the jury. Reversed and remanded for further proceedings. HURLEY and DELL, JJ., concur.…
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Arellano v. Broward K-9/Miami K-9 Servs., Inc., 207 So. 3d 351 (Fla. 3d DCA 2016)…te prescribes a limited exception to such strict liability: the plaintiffs comparative negligence.3 Whether and to what extent a plaintiff is comparatively negligent for her own injuries generally is a fact question for the jury. Goldberg v. McCabe, 313 So. 2d 47 (Fla. 3d DCA 1975). III. Conclusion Genuine issues of material fact exist as to whether, and to what extent, K-9’s liability for Arellano’s injuries should be reduced because of Arellano’s actions. We reverse the trial court’s final summary judgme…
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
- Jones v. Crews, 204 So. 2d 24 (Fla. 4th DCA 1967)
- Nezzie A. Strickland and Cassius B. Strickland v. Bradford Cnty. Hosp. Corp., 196 So. 2d 765 (Fla. 1st DCA 1967)
- Maury v. City Stores Co., 214 So. 2d 776 (Fla. 3d DCA 1968)