SIDNEY KESSLER, APPELLANT,
v.
NATHAN S. GUMENICK, HARRY GRANDIS AND JEROME GUMENICK, A PARTNERSHIP, D/B/A SOUTHGATE TOWERS HOTEL AND APARTMENTS, AND HOME INSURANCE COMPANY, APPELLEES
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Appellant appealed from a summary judgment granted in favor of defendants in a slip-and-fall negligence action. The court dismissed the appeal on procedural grounds, holding that an order granting a motion for summary judgment is not appealable as an interlocutory order, though the court noted that a properly entered final summary judgment would have been affirmed on the merits.
An order granting a motion for summary judgment is not appealable as an interlocutory order and the appeal must be dismissed. Additionally, even if the order were properly appealed, the summary judgment would have been affirmed because the plaintiff failed to present evidence of the defendants' actual or constructive knowledge of the hazardous condition.
[1] An order granting a motion for summary judgment is not a final, appealable order.
[2] A plaintiff in a slip and fall negligence action must present evidence, either direct or circumstantial, demonstrating the defendant had actual or constructive knowledge…
Previewing 2 of 3 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“from a procedural standpoint, the order appealed is but an order granting a motion and is not appealable as such”
Establishes the primary reason for dismissal—that interlocutory orders granting motions are not appealable under Florida law.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant slipped and fell on water on the floor in front of an apartment house elevator at Southgate Towers Hotel and Apartments. The water apparentl…
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HENDRY, Judge.
Appellant/plaintiff appeals from an “order granting motion for summary judgment” in favor of appellees/defendants in a negligence action that can be categorized as a “slip and fall.”
Appellant contends that there were genuine issues of material fact left unresolved by the trial judgment thus precluding the entrance of a summary judgment. We disagree with appellant’s contention; however, before discussing the merits, we note that from a procedural standpoint, the order appealed is but an order granting a motion and is not appealable as such. Accordingly, as urged by counsel for appellees, this appeal should be, and is hereby dismissed. Shupack v. Allstate Insurance Company, 356 So. 2d 1298 (Fla. 3d DCA 1978); see also Florida Roofing & Sheet Metal Contractors Self-Insurers Fund v. Citizens National Bank of Orlando, 223 So. 2d 757 (Fla. 4th DCA 1969); Harris v. Mosteller, 253 So. 2d 275 (Fla. 2d DCA 1971); and Washington Security Co. v. Tracy’s Plumbing & Pumps, Inc., 166 So. 2d 680 (Fla. 2d DCA 1964).
For the sake of argument, a properly entered final summary judgment would have nevertheless been affirmed. While appellant did present an issue of fact as to whether or not there existed water on the floor directly in front of the apartment house elevator (apparently tracked into the building via bathers returning from the apartment’s swimming pool) thereby causing a hazardous condition, the record is completely devoid of any evidence, either direct or circumstantial, addressed to the issue of whether or not appellees had either actual or constructive knowledge of the danger prior to the time of appellant’s slip and fall and thus, could have with reasonable diligence, remedied the situation. In that no proof was offered with respect to the knowledge of appellees, it is our opinion that, sub judice, appellant failed to present a prima facie case of negligence. Padilla v. Tulso Enterprises, Inc., 307 So. 2d 884 (Fla. 3d DCA 1974); Haley v. Harvey Building Inc., 168 So. 2d 330 (Fla. 2d DCA 1964). Accordingly, a summary final judgment would have been proper. For the reason stated at the' outset, this appeal is dismissed.
Appeal dismissed.
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Citator
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AETNA Cas. & Sur. Co. & Morton Ins. Agency, Inc. v. Meyer, 385 So. 2d 10 (Fla. 3d DCA 1980)…tion for summary judgment against Meyer is dismissed. An order denying or granting a motion for summary judgment is not an appealable final order. Donnell v. Industrial Fire & Casualty Company, 378 So. 2d 1344 (Fla.3d DCA 1980); Kessler v. Gumenick, 358 So. 2d 1167 (Fla.3d DCA 1978); Shupack v. Allstate Insurance Company, 356 So. 2d 1298 (Fla.3d DCA 1978). Moreover, since the order granting Morton’s motion for summary judgment did not determine an issue of liability in favor of the party seeking affirmative re…
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Deal Farms, Inc. v. Farm & Ranch Supply, Inc., 382 So. 2d 888 (Fla. 1st DCA 1980)…Shupack v. Allstate Ins. Co., 356 So. 2d 1298 (Fla. 3rd DCA 1978), which was held to be merely authorization for a summary judgment, not a final judgment, nor an order from which interlocutory appeal would properly lie. See also Kessler v. Gumenick, 358 So. 2d 1167 (Fla. 3rd DCA 1978); Rule 9.130, Florida Rules of Appellate Procedure. We therefore conclude that we have jurisdiction of Deal Farms’ appeal. REVERSED AND REMANDED. McCORD and SHIVERS, JJ„ concur.…
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Honesto Alegre v. Shurkey, 396 So. 2d 247 (Fla. 1st DCA 1981)…ng also a patent, obvious danger, I wrote that “[t]his is a murky area of the law .. .. ” The majority’s affirmance of the order below, and the opinions following Hoffman and Blackburn which persevere in applying no-duty, e. g., Kessler v. Gumenick, 358 So. 2d 1167 (Fla. 3d DCA 1978); Vermont Mut. Ins. Co. v. Conway, 358 So. 2d 123 (Fla. 1st DCA 1978); Ball v. Ates, 369 So. 2d 1023 (Fla. 1st DCA 1979), all serve to reinforce my belief.6 Unless, however, no-duty remains alive and well, the above decisions canno…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shupack v. Allstate Ins. Co., 356 So. 2d 1298 (Fla. 3d DCA 1978)
- Wash. Sec. Co. v. Tracy's Plumbing & Pumps, Inc., 166 So. 2d 680 (Fla. 2d DCA 1964)
- Ocie M. Haley v. Harvey Bldg., Inc., 168 So. 2d 330 (Fla. 2d DCA 1964)
- Padilla v. Tulso Enters., Inc., 307 So. 2d 884 (Fla. 3d DCA 1974)
- Harris v. Mosteller, 253 So. 2d 275 (Fla. 2d DCA 1971)
- State v. Joseph, 253 So. 2d 275 (Fla. 3d DCA 1971)
- Fla. Roofing & Sheet Metal Contractors Self-Insurers Fund v. Citizens Nat'l Bank OF Orlando, 223 So. 2d 757 (Fla. 4th DCA 1969)