ANNE KOVEN AND MORREY KOVEN, HER HUSBAND, IN HIS OWN RIGHT, APPELLANTS,
v.
EUGENE W. OWENS, AS TRUSTEE OF BRUCE CONSTRUCTION CORP., A FLORIDA CORPORATION, APPELLEE
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Tenants sued their landlord's bankruptcy trustee for injuries from a falling ceiling, alleging negligence and failure to repair after notice. The court reversed summary judgment, holding that factual disputes about the tenants' prior complaints and the landlord's assurances precluded summary disposition and required jury determination of contributory negligence and assumption of risk.
Summary judgment was improper because the appellants' allegations that they had notified the appellee of the ceiling's condition and received assurances from the appellee's agents created genuine factual disputes that precluded summary disposition. The questions of contributory negligence and assumption of risk are for the jury to decide.
“That case involved a falling ceiling where the plaintiff admitted the very facts upon which the defendants rested their defense of assumption of the risk. We observed in that case that since the plaintiff had admitted the very facts upon which an issue was framed by the pleadings, there was no alternative for the trial judge except the entry of a summary judgment. Such, are not. the facts in the case at bar.”
Court distinguishes Perlman v. Kraemer, establishing that summary judgment is inappropriate when the plaintiff contests the facts supporting the defendant's defense
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Join FLexlaw to unlock all legal intelligenceThe Kovens were tenants in an apartment house owned by a construction company. The wife was injured when a ceiling portion fell on her. The husband so…
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The appeal here is from a summary final judgment adverse to the appellants.
The appellants were tenants in an apartment house owned and operated by a construction company. The appellee is the trustee for the construction company under the reorganization provisions of the Federal Bankruptcy Act. The appellant wife sued to recover for personal injuries sustained when a portion of the ceiling in her apartment fell and struck her. Her husband seeks recovery for medical expenses as a result of the alleged .injuries and for loss of consortium of his wife. It was charged in the complaint that the appellant wife’s injuries resulted from the appellee’s negligence in failing to maintain the ceiling in a safe condition and also in failing to repair the ceiling after being notified of its condition by the appellants. The appellee by answer denied these allegations and affirmatively charged the appellant wife with contributory negligence. Upon these issues framed by the pleadings, together with the depositions of the appellants the court entered the summary judgment appealed.
The appellee strenuously contends that the judgment should be affirmed on the-authority of Perlman v. Kraemer, Fla.App. 1958, 104 So.2d 609. That case involved a falling ceiling where the plaintiff admitted the very facts upon which the defendants rested their defense of assumption of the risk. We observed in that case that since the plaintiff had admitted the very facts upon which an issue was framed by the pleadings, there was no alternative for the trial judge except the entry of a summary judgment. Such, ar.e not. the facts in the case at bar.
Appellants contend that they repeatedly called the attention of the appellee or its agents to the condition of the ceiling and that actual inspections were made by ap-*312pellee’s agents who assured appellants from time to time that the ceiling would not fall. Without laboring in this opinion the reasons why this court under the circumstances refuses to follow the pronouncements in Perlman v. Kraemer, supra, we refer counsel to the case of Alzugaray v. Markowitz, Fla.App. 1964, 163 So.2d 8, where the matter is treated at length. We observe in passing, however, that the specific defense of assumption of the risk was not pleaded in the case at bar but the argument of both counsel appears to be based upon the fact that such defense was interposed. We do not feel that such a difference constitutes a distinction and in any event, the question of contributory negligence or assumption of the risk is one for the jury.
Concluding as we have that it was error to enter the summary judgment, said judgment be and the same is hereby reversed.
Reversed.
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Luckey v. City OF Orlando, 264 So. 2d 99 (Fla. 4th DCA 1972)…. 2d 215. Finally, contributory negligence in such cases has been traditionally held to be for jury evaluation. Lescrynski v. Middlebrook, Fla.App.1972, 260 So. 2d 215; Suhr v. Dade County, Fla.App.1967, 198 So. 2d 837; Koven v. Owens, Fla.App.1964, 163 So. 2d 311; Beikirch v. City of Jacksonville Beach, Fla.App.1964, 159 So. 2d 898. There are genuine issues of triable material facts and the case should not have been determined short of jury trial. Rule 1.510, Fla.R.Civ.Proc., 31 F.S.A., and Holl v. Talcott,…
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Lescrynski v. Farnham D. Middlebrook & Allstate Ins. Co., 260 So. 2d 215 (Fla. 4th DCA 1972)…y, Fla.App.1967, 198 So. 2d 837. Additionally, contributory negligence and assumption of risk are ordinarily issues for jury determination. Generally the serious posing of such defenses would preclude summary judgment. Koven v. Owens, Fla.App.1964, 163 So. 2d 311; Beikirch v. City of Jacksonville Beach, Fla.App.1964, 159 So. 2d 898; Allen v. Kamp’s Beauty Salon, Inc., Fla.App.1965, 177 So. 2d 678 and Suhr v. Dade County, supra. We hold that the critical discrepancies in the deposed testimony of the parties,…
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Owens v. Koven, 166 So. 2d 754 (Fla. 1964)…Certiorari denied without opinion. 163 So. 2d 311.…
Authorities Cited
- Perlman v. Kraemer, 104 So. 2d 609 (Fla. 3d DCA 1958)
- Alzugaray v. Markowitz, 163 So. 2d 8 (Fla. 3d DCA 1964)