NATHANIEL HIGGS AND DOLORES HIGGS, HIS WIFE, APPELLANTS,
v.
HOLLAND PAVING COMPANY AND EMPLOYERS INSURANCE OF WAUSAU, APPELLEES

Fla. 3d DCA | 1983-09-13
No. 82-826
Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
438 So. 2d 112 Florida District Court of Appeal, Third District (1983)

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Synopsis

The Third District Court of Appeal reversed a summary judgment for Holland Paving Company in a negligence case arising from a traffic accident, holding that conflicting evidence about whether a required traffic sign was present at the time of injury created a genuine issue of material fact precluding summary judgment.


Holding

Holland Paging Company was not entitled to summary judgment because it failed to conclusively show that it provided, placed, and maintained a stop sign at the intersection. The conflicting evidence—that a sign was placed at 4:30 p.m. but was absent at 6:00 p.m.—created a genuine issue of material fact as to whether Holland breached its duty.


Headnotes

[1] A contractor responsible for maintaining traffic signs during street construction has a duty to provide, place, and maintain such signs at all times during the work.

[2] Summary judgment is inappropriate when there is conflicting evidence regarding whether a contractor fulfilled its duty to provide and maintain a traffic sign.

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Key Quotes

“Holland's duty being thus in existence, it was entitled to the summary judgment entered in its favor only if it conclusively showed that it provided, placed and maintained a stop sign at the intersection where Higgs was injured.”

Establishes the legal standard for summary judgment in this duty-based negligence case

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Facts & Procedural History

Holland Paving Company was contractually obligated to provide, place, and maintain traffic signs during street construction work for the City of Miami…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Holland Paving Company, under a contract with the City of Miami, was responsible for providing, placing and maintaining traffic signs at all times during the street construction work contemplated by the contract, which work, arguably, if not indisputably, was not completed as of March 8, 1978, the date upon which Higgs was injured in an automobile accident allegedly caused, at least in part, by the absence of a traffic sign. Holland’s duty being thus in existence, it was entitled to the summary judgment entered in its favor only if it conclusively showed that it provided, placed and maintained a stop sign at the intersection where Higgs was injured. While there is evidence in the record to show that at 4:30 on the afternoon of the accident Holland’s employee placed a stop sign at the intersection, there is also evidence that .no stop sign was at the intersection at approximately 6:00 p.m. when the accident occurred. This latter evidence creates a genuine issue of fact as to whether Holland breached its duty to provide, place and maintain a traffic sign. As this court observed in a different context:

“The third point presented urges that the trial court erroneously excluded evidence of the absence of barricades subsequent to the end of defendant’s work day at the job site. The court reasoned that since the negligence alleged was the failure to place barricades and that since barricades might be removed by a third party that therefore the only critical time was the period immediately after the close of the working day. While this is true it is also true that the testimony as to the absence of the barricades at other times subsequent to the end of the working day has some probative value. The issue was whether or not barricades were placed at 5:00 p.m. Their absence an hour or two hours later or even at the time of the accident has a relevancy to the issue of fact as to whether they were placed at all. In the present instance, there is a conflict in the testimony as to whether the barricades were placed. This conflict makes even more important evidence which would tend to show that the barricades were never placed at all because of their absence sometime later. See II Wigmore on Evidence § 437 (3rd ed. 1940); cf. Renninger v. Foremost Dairies, Inc., Fla.App.1965, 171 So. 2d 602. We therefore conclude that the objection to the evidence should have been denied.” Walton v. Robert E. Haas Construction Corporation, 259 So. 2d 731, 734-35 (Fla. 3d DCA 1972).

Accordingly, the summary judgment for Holland is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


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