PAULA COOK, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF SHEILA COOK, A MINOR, APPELLANT,
v.
JOHN MARTIN ET AL., APPELLEES
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Paula Cook appealed a summary judgment entered in favor of Seville Court, Inc., a trailer court, in a negligence action arising from her minor daughter's injury when struck by a car while exiting the trailer court's private driveway. The Fourth District reversed, finding that material facts regarding whether the trailer court's landscaping and trailer positioning obstructed visibility remained for jury determination.
Summary judgment was improper because the moving party failed to conclusively show the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Material facts regarding the shrubbery's effect on visibility and defendant's potential breach of duty must be submitted to a jury for determination.
[1] A party moving for summary judgment must conclusively demonstrate the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
[2] When reviewing a summary judgment, the record must be viewed in the light most favorable to the non-moving party.
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Join FLexlaw to unlock all legal intelligence“It is the burden of the moving party to show conclusively that a genuine issue of material fact does not exist before a summary judgment should be entered, and it should be further shown that the moving party is entitled to judgment as a matter of law.”
Establishes the legal standard for summary judgment that the defendant failed to meet in this case.
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Join FLexlaw to unlock all legal intelligenceSheila Cook, a minor, was struck by a car operated by John Martin as she exited from Seville Court, Inc.'s trailer court private drive. Paula Cook all…
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SCHULZ, GEORGE E., Associate Judge.
Plaintiff/appellant, Paula Cook, mother of Sheila Cook, in a personal injury action appeals from a summary final judgment granted in favor of defendant/appellee, Seville Court, Inc., a Florida corporation. The minor plaintiff, Sheila Cook, was struck by a car operated by John Martin as she was exiting from appellee’s trailer court private drive. Plaintiff alleged defendant failed to maintain its property in a safe condition in that certain shrubbery and positioning of trailers on the premises obstructed the view of anyone leaving the property in the manner similar to Sheila Cook’s exiting, and that as a direct result of defendant’s negligence in failing to maintain its property in a safe condition, Sheila Cook was injured.
After discovery was completed appellee moved for summary judgment contending the proximate cause of the accident was not because of the height of the shrubbery or positioning of the trailers, and the appellant had failed to show any breach of duty owed by the appellee; hence, a final summary judgment was entered in favor of appellee.
It is the burden of the moving party to show conclusively that a genuine issue of material fact does not exist before a summary judgment should be entered, and it should be further shown that the moving party is entitled to judgment as a matter of law. See, Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Visingardi v. Tirone, 193 So. 2d 601 (Fla.1966).
We feel that the appellee does not meet the summary judgment rule. Appellant is entitled to a review of the record in the light most favorable to her. Thus it appears that the deposition of Officer Smith, an investigating officer, and the deposition of the injured child, Sheila Cook, raises an issue of material fact relative to the shrubbery and its effect on visibility of someone exiting from the private driveway where the accident occurred.
When the existence of such an issue appears in the record, it must be submitted to the jury under proper instructions for a determination of questions of fact and liability.
REVERSED and REMANDED.
CROSS and DOWNEY, JJ., concur.
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Ileana Whitt v. Eli Silverman, 788 So. 2d 210 (Fla. 2001)…ize involves an unreasonable risk of harm to others outside his land, and therefore imposes on him, as an owner or possessor of the land, the duty of abating or obviating the use or condition from which the risk is encountered. See, Cook v. Martin, 330 So. 2d 498 (Fla. 4th DCA 1976), cert. denied, 339 So. 2d 1170 (Fla.1976). The majority suggests that the imposition of liability in this case would be improperly contrary to “the traditional rule that the owner of land is under no affirmative duty to remedy c…
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Evans v. S. Holding Corp. & Ins. Co. of N. Am., 391 So. 2d 231 (Fla. 3d DCA 1980)…ys, Streets and Bridges § 119 (1957), and 39 Am.Jur.2d Highways, Streets and Bridges § 359 (1968). A recent Florida case involving the obstruction of the view of approaching traffic, which is cited by both parties to this appeal, is Cook v. Martin, 330 So. 2d 498 (Fla. 4th DCA 1976). This opinion held without discussion that a summary judgment must be reversed when there is an issue as to whether a private driveway of a trailer park was so unsafe because of obstructions as to constitute a trap for lawful use…1 / 2
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Burland v. Hasam Realty, 344 So. 2d 880 (Fla. 4th DCA 1977)…l as a result of the negligence of the Appellee. Upon a review of this matter we find the trial court erred in granting a Summary Judgment for the Appellee because genuine issues of fact remain to be resolved by a trier of the facts. Cook v. Martin, 330 So. 2d 498 (Fla. 4th DCA 1976); Topercer v. Knox, 330 So. 2d 520 (Fla. 4th DCA 1976); Clark v. Van De Walle, 332 So. 2d 360 (Fla. 2d DCA 1976). REVERSED and REMANDED. MAGER, C. J., and WEAVER, SIDNEY M., Associate Judge, concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966)