RED TOP SEDAN AND EMANUEL D. MUSTILLO, APPELLANTS,
v.
ISADORE APPLEBAUM, JANET APPLEBAUM, FRANCINE APPLEBAUM, UNITED BUS OWNERS OF AMERICA, HENRI C. JANNEAU AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLEES
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The court reversed summary judgment for defendant Janneau in an automobile negligence action, holding that genuine issues of material fact remained regarding whether Janneau's speed and evasive actions under wet conditions were reasonable, precluding summary judgment even though witnesses testified a phantom vehicle caused the initial collision.
Summary judgment for a defendant driver is improper when material factual issues remain regarding the reasonableness of the defendant's speed and evasive maneuvers under the prevailing weather conditions, despite witness testimony that a phantom vehicle caused the initial collision.
[1] Summary judgment is improper in a negligence action when material factual issues remain regarding a defendant driver's speed and evasive actions under adverse weather con…
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Join FLexlaw to unlock all legal intelligenceA phantom automobile ran a stop sign and pulled in front of defendant Janneau's vehicle. The plaintiffs' vehicle struck Janneau's vehicle and then was…
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PER CURIAM.
We reverse the summary final judgment entered in this automobile negligence action in favor of one of the defendant drivers, Henri C. Janneau. In doing so we acknowledge that all of the known witnesses to the accident gave testimony which in essence concluded that there was nothing that Janneau could do to avoid a collision with a phantom automobile that ran a stop sign and pulled out in front of him. The appellants, codefendants in the action, are the owner and driver of a vehicle which struck the plaintiffs’ vehicle in the rear, after the plaintiffs' vehicle had come to a stop in order to avoid colliding with the phantom vehicle and Janneau’s vehicle. Notwithstanding the opinions expressed by the witnesses, we believe issues remain as to the reasonableness of the speed of Jan-neau under the wet conditions prevailing and his actions in attempting to avoid the collision. We are especially concerned that the trier of fact have the opportunity to evaluate the actions of all of the drivers involved in attempting to determine how this accident took place and assessing responsibility. We also acknowledge the standing of the appellants to bring this appeal but reject their contention of harmful error in the trial court’s limitation of their argument at the summary judgment hearing. See Holton v. H.J. Wilson Co., 482 So. 2d 341 (Fla.1986).
ANSTEAD and DELL, JJ., concur. LETTS, J., dissents without opinion.
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Goodberry v. Phoenix Rent-A-Car, Inc., 533 So. 2d 1193 (Fla. 2d DCA 1988)…nt stated: “We are especially concerned that the trier of fact have the opportunity to evaluate the actions of all the drivers involved in attempting to determine how the accident took place and assessing responsibility.” Red Top Sedan v. Applebaum, 495 So. 2d 786 (Fla. 4th DCA 1986). We reverse the final judgment entered by the trial court and remand the case for proceedings consistent with this opinion. REVERSED AND REMANDED. LEHAN, A.C.J., and HALL, J., concur.…
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Elba Marie Valle and Elba N. Valle v. Childs, 585 So. 2d 478 (Fla. 3d DCA 1991)…the absence of any material issue on the question of whether the plaintiff was comparatively negligent, that is, whether [*479] Childs was inattentive and whether Childs had the opportunity to take any evasive action. See Red Top Sedan v. Applebaum, 495 So. 2d 786 (Fla. 4th DCA 1986); Linguist v. Boyd, 473 So. 2d 22 (Fla.3d DCA 1985). The order under review is reversed and the cause remanded for further proceedings consistent herewith.…
Authorities Cited
- Holton v. H.J. Wilson Co., Inc., 482 So. 2d 341 (Fla. 1986)