Bottorf ex rel. Bottorf v. Johnston

132 So. 2d 422

Opinion

CARROLL, CHAS., Judge.

In this action by a minor and his father for damages for personal injuries received by the minor when he was shot by defendant after being found in defendant’s parked automobile, plaintiffs’ motion for summary judgment was denied, summary judgment was granted to defendant, and plaintiffs appealed.

The record discloses triable issues which may not be resolved on a motion for summary judgment, including whether the facts showed a felony committed by the minor in the presence of the defendant or were such that defendant reasonably could suspect the minor of commission of a felony which actually was committed, so as to entitle the defendant as a private person to make or attempt an arrest (Dorsey v. United States, 5 Cir., 1949, 174 F.2d 899, 901; 3 Fla.Jur., Arrest, § 24) and, if so, whether the force used was authorized. See Dixon v. State, 101 Fla. 840, 132 So. 684, 688; City of Miami v. Albro, Fla.App.1960, 120 So.2d 23, 26, and authorities there cited. Therefore, the summary judgment is reversed and the cause remanded for trial.

Reversed and remanded.