DELLA M. LESCRYNSKI AND WILLIAM LESCRYNSKI, APPELLANTS,
v.
FARNHAM D. MIDDLEBROOK AND ALLSTATE INSURANCE COMPANY, APPELLEES
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The court held that summary judgment was inappropriate due to conflicting facts and affirmative defenses that typically require jury determination.
[1] Summary judgment is cautiously applied in negligence cases.
[2] In summary judgment proceedings, all facts and inferences must be resolved against the moving party.
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Join FLexlaw to unlock all legal intelligencePlaintiffs were pruning trees on defendant's property when one plaintiff was injured. The plaintiffs sued the defendant for negligence, alleging inade…
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Della and William Lescrynski, plaintiffs below, were pruning trees on defendant Middlebrook’s rental property. William cut a large limb but it lodged in a fork of the tree. He offered to kick it loose while balancing on a ladder.
Della was concerned for her husband’s safety, so she volunteered to steady the ladder. The limb dislodged, striking Della’s head and causing the injuries complained of.
Della and William sued defendant, claiming negligence in his active supervision, failure to properly warn of danger and utilization of inadequate equipment and personnel for the specialized job.
Defendant denied negligence and affirmatively alleged contributory negligence and assumption of risk. Summary judgment was awarded in defendant’s favor. We reverse.
The facts are in massive conflict. For instance, defendant claims he was a mere spectator for only one minute before the accident. Plaintiffs say he was actively supervising for approximately three hours.
In summary judgment law all facts and inference are to be resolved *216against the moving party. He had the burden of proving the nonexistence of material, genuine fact issues. Further, summary judgment procedures should be cautiously applied in negligence cases. Stephens v. Moody, Fla.App.1969, 225 So.2d 586; Holl v. Talcott, Fla.1966, 191 So.2d 40; Suhr v. Dade County, 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, plus the affirmative defenses raised, necessite resolution through a full trial. We reverse and remand for that purpose.
Reversed and remanded.
REED, C. J., and MAGER, J., concur.
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U. S. Fire Ins. Co. v. Progressive Cas. Ins. Co. & Phillip Hurlock, 362 So. 2d 414 (Fla. 2d DCA 1978)…against the party seeking a summary judgment and in favor of the party opposing it. Stringfellow v. State Farm Fire & Casualty Co., 295 So. 2d 686 (Fla. 2d DCA 1974); Goodman v. Anthony, 269 So. 2d 756 (Fla. 3d DCA 1972); Lescrynski v. Middlebrook, 260 So. 2d 215 (Fla. 4th DCA 1972). Justice Sundberg, speaking for the majority in Wills v. Sears, Roebuck & Co., 351 So. 2d 29, 30 (Fla.1977), recently commented upon the movant’s burden: A party moving for summary judgment must meet a twofold requirement: The…
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Luckey v. City OF Orlando, 264 So. 2d 99 (Fla. 4th DCA 1972)…nston, Fla.1958, 104 So. 2d 3; Maximo Moorings Marine Center, Inc. v. Walke, Fla.App.1967, 196 So. 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…
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Claboen Norris et ux. v. City OF Miami & Fla. Power & Light Co., 367 So. 2d 1038 (Fla. 3d DCA 1979)…ty, we are of the opinion that genuine issues of material fact exist which preclude our affirmance of the summary final judgment entered in favor of Florida Power & Light Company. Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Lescrynski v. Middlebrook, 260 So. 2d 215 (Fla. 4th DCA 1972). Some of the issues raised by appellant, through allegations in his complaint and by testimony through deposition, which require determination by a trier of fact are: (1) whether or not Florida Power & Light Company could have r…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Beikirch v. City OF Jacksonville Beach, 159 So. 2d 898 (Fla. 1st DCA 1964)
- Nedda Suhr v. Dade Cnty., 198 So. 2d 837 (Fla. 3d DCA 1967)
- Stephens v. Moody, 225 So. 2d 586 (Fla. 1st DCA 1969)
- Anne Koven and Morrey Koven v. Owens, 163 So. 2d 311 (Fla. 3d DCA 1964)
- Allen v. Kamp's Beauty Salon, Inc., 177 So. 2d 678 (Fla. 3d DCA 1965)