KENNETH BLYTHE, APPELLANT,
v.
R. W. WILLIAMS AND DOROTHY WILLIAMS, HIS WIFE, D/B/A PEACE VALLEY CAMPGROUNDS, AND FLORIDA FARM BUREAU INSURANCE COMPANY, A FLORIDA CORPORATION, APPELLEE
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A diver injured his head while using a cable swing at a campground swimming hole. The trial court granted summary judgment for the campground defendants, but the appellate court reversed, finding that factual disputes regarding negligence and comparative fault precluded summary judgment.
The court held that summary judgment was improper because reasonable persons could differ on the factual issues of whether the campground was negligent in providing or maintaining the swing, whether adequate warnings were given, and whether Blythe was comparatively negligent in using the swing after checking the water depth.
[1] Summary judgment is improper when reasonable persons could differ on factual issues regarding negligence or contributory negligence.
[2] A jury question exists as to whether a campground was negligent in providing a cable swing over shallow water without adequate warnings.
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Join FLexlaw to unlock all legal intelligence“We believe that reasonable persons could differ on these factual issues as to whether the campground was negligent in providing the swing or in failing to provide warnings as to its use, and the issue of Blythe's negligence in using the swing after checking the water depth.”
Establishes that disputed material facts preclude summary judgment; reasonable jurors could find negligence or comparative fault.
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Join FLexlaw to unlock all legal intelligenceKenneth Blythe was injured when he struck his head diving into shallow water from a cable swing at Peace Valley Campgrounds. Blythe had checked the wa…
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PER CURIAM.
This is an appeal from a summary judgment entered against the appellant, Kenneth Blythe, on his claim against the appel-lees, R. W. Williams and Dorothy Williams, his wife, d/b/a Peace Valley Campgrounds, and Florida Farm Bureau Insurance Company, for injuries sustained when Blythe struck his head while diving into a “swimming hole” located in the Peace Valley Campgrounds. Blythe charged the campgrounds with negligence in the erection and maintenance of a cable swing provided at the swimming hole for the use of campground tenants such as Blythe. Specifically, it was claimed that the swing was unsafe in that it extended over an area of shallow water; and further, that no warnings were provided as to the possible danger involved in diving from the swing into the shallow waters near the shore. The appel-lees claim that Blythe is precluded from recovering because he concedes that he checked the depth of the water near the swing before using the swing. Blythe testified in deposition that he did not know where in the water he landed when he was injured. He contends that he had little control as to where he could dive into the water because of the nature of the swing and that it was unsafe to provide the swing at all. We believe that reasonable persons could differ on these factual issues as to whether the campground was negligent in providing the swing or in failing to provide warnings as to its use, and the issue of Blythe’s negligence in using the swing after checking the water depth. We do not believe it was proper to resolve these issues by summary judgment. Holl v. Talcott, 191 So. 2d 40 (Fla.1966). Accordingly, the judgment of the trial court is hereby reversed with directions for further proceedings consistent with this opinion.
REVERSED WITH DIRECTIONS.
DOWNEY and ANSTEAD, JJ., and FO-GLE, HARRY W., Associate Judge, concur.
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Robbins v. Dep't OF Natural Res., 468 So. 2d 1041 (Fla. 1st DCA 1985)…DNR, is distinguishable because, as the opinion pointed out, the plaintiff actually tested the depth of the water before executing his dive and there was no factual dispute with respect thereto. The instant case is more akin to Blythe v. Williams, 356 So. 2d 334, 335 (Fla. 4th DCA 1978), another “diving” case, in which the Fourth District reversed summary judgment in favor of the defendant. See also Blankenship v. Davis, 251 So. 2d 141 (Fla. 1st DCA 1971); compare Switzer v. Dye, 177 So. 2d 539 (Fla. 1st DC…
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Lael N. Clark v. Flagship Bank OF Melbourne, 368 So. 2d 377 (Fla. 4th DCA 1979)…the trial court been acting as the trier of fact we might agree, but in considering the motion for summary judgment we believe the trial court was faced with conflicting versions of the facts and erred in resolving that conflict. Blythe v. Williams, 356 So. 2d 334 (Fla. 4th DCA 1978). Also see City of Pensacola v. Owens, 369 So. 2d 328 (Fla.1979). The transcripts of the will contest appear to support a finding of probable cause. But the plaintiff’s affidavits-directly contradicted the sworn statements in the…
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