BUFORD J. COUNTS AND GERALD FINNEY, DOING BUSINESS AS JUNO BEACH FISHING PIER, APPELLANT,
v.
JOHN MCGILLICK, APPELLEE

Fla. 4th DCA | 1972-10-04
No. 71-614
CROSS, J., and JOHNSON, CLARENCE T., Associate Judge, concur., WALDEN, J., dissents, with opinion.
267 So. 2d 97 Florida District Court of Appeal, Fourth District (1972) Positive Treatment
Cited by 2 cases

Opinion of the Court
PER CURIAM.

PER CURIAM.

Affirmed.

CROSS, J., and JOHNSON, CLARENCE T., Associate Judge, concur.

WALDEN, J., dissents, with opinion.

WALDEN, Judge

(dissenting):

I respectfully dissent. Plaintiff was a business invitee and slipped and fell upon defendant’s fishing pier. The jury returned a verdict for plaintiff. I would reverse and remand for a new trial because the judgment was contrary to the manifest weight of the evidence.

Plaintiff flatly did not know what caused his fall or how he fell. This must be inferred. In addition the dangerous condition, its origin, responsibility for it, and length of time that same existed were not proven and must be somehow inferred. All in all, plaintiff’s case simply rests upon a series of impermissible pyramided inferences and defendant’s negligence was not established as a matter of law. Suspicion and mere conjecture are not adequate foundations for a tort judgment.

I would reverse for a new trial.

Dissent
WALDEN, Judge

WALDEN, Judge

(dissenting):

I respectfully dissent. Plaintiff was a business invitee and slipped and fell upon defendant’s fishing pier. The jury returned a verdict for plaintiff. I would reverse and remand for a new trial because the judgment was contrary to the manifest weight of the evidence.

Plaintiff flatly did not know what caused his fall or how he fell. This must be inferred. In addition the dangerous condition, its origin, responsibility for it, and length of time that same existed were not proven and must be somehow inferred. All in all, plaintiff’s case simply rests upon a series of impermissible pyramided inferences and defendant’s negligence was not established as a matter of law. Suspicion and mere conjecture are not adequate foundations for a tort judgment.

I would reverse for a new trial.


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