CINCINNATI INSURANCE COMPANY AND ROBERT ZIELKE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JUDITH LOUISE ZIELKE, DECEASED, APPELLANTS,
v.
PAUL J. SCHNEIDER, JR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF IRMA R. SCHNEIDER, DECEASED, APPELLEE
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In this wrongful death action arising from an automobile accident, the appellate court reversed a partial summary judgment on liability, holding that questions of contributory negligence and assumption of risk must be resolved by a jury rather than determined at summary judgment, particularly where reasonable inferences from the facts could support different legal conclusions.
The court reversed the partial summary judgment on liability, holding that summary judgment is disfavored in negligence cases involving defenses of contributory negligence or assumption of risk. Because reasonable inferences could be drawn differently from the facts and those inferences could lead to different legal conclusions regarding assumption of risk and contributory negligence, the matter must be resolved by a jury.
[1] Summary judgment is disfavored in negligence cases, especially when affirmative defenses like contributory negligence or assumption of the risk are raised.
[2] Any doubt regarding the facts or inferences in a negligence case with affirmative defenses should be resolved in favor of a jury trial.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The law does not favor summary judgments in negligence cases, particularly where defenses of contributory negligence or assumption of the risk are involved, and any doubt should be resolved in favor of a jury trial.”
Establishes the court's policy against summary judgment in negligence cases with such defenses
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Join FLexlaw to unlock all legal intelligenceMrs. Schneider and Mrs. Zielke were killed in a car accident. Mrs. Schneider was the passenger and Mrs. Zielke was the driver of a car owned by Mr. Sc…
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ALDERMAN, Judge.
This is an interlocutory appeal by the defendants in a wrongful death action, seeking review of a partial summary judgment in favor of the plaintiff on the issue of liability. The defendants raised the affirmative defenses of contributory negligence and assumption of the risk, which, since Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973), and Blackburn v. Dorta, 348 So. 2d 287 (Fla., opinion filed May 5, 1977), no longer completely bar recovery, but may prevent a plaintiff from recovering that proportion of his damages for which he is responsible. In entering the partial summary judgment, the trial court left only the amount of damages for the determination of the jury. We reverse.
Factually it appears that Mrs. Schneider and Mrs. Zielke were killed in an automobile accident while riding together. Mrs. Schneider was the passenger and Mrs. Zielke was the driver. Mrs. Schneider’s husband owned the car; he instituted the suit for wrongful death against Mrs. Zielke’s estate. The two women had attended a luncheon fashion show at a restaurant and had remained there until late afternoon. There is evidence that both ladies drank alcoholic beverages while they were at the restaurant. The parking attendant felt that Mrs. Schneider was in no condition to drive and refused to turn her car over to her. She asked Mrs. Zielke to drive for her, which Mrs. Zielke did. The car left the road near the foot of a bridge, plunged into water, and both women died.
The law does not favor summary judgments in negligence cases, particularly where defenses of contributory negligence or assumption of the risk are involved, and any doubt should be resolved in favor of a jury trial. Bess v. 17545 Collins Avenue, Inc., 98 So. 2d 490 (Fla.1957). It is for a jury to determine not only “what happened” in a particular case, but also to choose among the different inferences which may be drawn from the same set of facts, and to decide whether the precise circumstances fit certain legal definitions, which in turn give rise to certain legal consequences. Reasonable men might differ as to the inferences which may be drawn from the facts now before us, and they might disagree as to whether those facts and inferences fit the legal definitions of assumption of the risk and contributory negligence. Accordingly, we reverse the order granting partial summary judgment on the issue of liability and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
DOWNEY and DAUKSCH, JJ., concur.
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Dawson v. Scheben, 351 So. 2d 367 (Fla. 4th DCA 1977)…factual issues exist which preclude summary judgments. City of Orlando v. Ashlock, 342 So. 2d 1002 (Fla. 4th DCA 1977). Additionally, different inferences might be drawn even from some of the undisputed facts. Cincinnati Insurance Co. v. Schneider, 349 So. 2d 728 (Fla. 4th DCA, opinion filed August 23, 1977). REVERSED and REMANDED. DOWNEY and LETTS, JJ., concur.…
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Bowes v. Lerner Shops Int'l, Inc., 422 So. 2d 1041 (Fla. 4th DCA 1982)…urt said: “It is well accepted that a storekeeper must exercise ordinary or reasonable care to see that those portions of the premises which persons may be expected to use are reasonably safe.”1 We also held in Cincinnati Insurance Co. v. Schneider, 349 So. 2d 728, 729 (Fla. 4th DCA 1977): “The law does not favor summary judgments in negligence cases, particularly where defenses of contributory negligence or assumption of the risk are involved, and any doubt should be resolved in favor of a jury trial. Bess v…
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Sherton v. Albertson's, Inc., 562 So. 2d 741 (Fla. 4th DCA 1990)…the adequacy of the alleged warnings given to appellant. We reverse the final summary judgment and remand this cause for further proceedings on the authority of Holl v. Talcott, 191 So. 2d 40 (Fla.1966) and Cincinnati Insurance Company v. Schneider, 349 So. 2d 728 (Fla. 4th DCA 1977). REVERSED and REMANDED. LETTS, DELL and WARNER, JJ., concur.…
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977)
- Bess v. 17545 Collins Ave., Inc., 98 So. 2d 490 (Fla. 1957)