DeMaggio v. Brasserie Restaurant

320 So. 2d 49, 1975 Fla. App. LEXIS 15409

Opinion

NATHAN, Judge.

This is an appeal by Dennis DeMaggio, plaintiff in the trial court, from a summary final judgment in favor of the defendants, Brasserie Restaurant and Coconut Grove Hotel. The action arose from an altercation on the defendants’ premises the result of which was that DeMaggio, a patron, was physically injured by another patron.

Since the judgment appealed is an adverse summary final judgment, the appellant is entitled to have the record reviewed in the light most favorable to him, with all reasonable inferences of fact and intendments of testimony being drawn in his behalf. Holl v. Talcott, Fla.1966, 191 So.2d 40; Visingardi v. Tirone, Fla.1966, 193 So.2d 601. It is the burden of the movant for summary judgment to show conclusively the non-existence of a genuine material fact. Where the existence of such an issue appears in the record, the cause must be referred for a determination of questions of fact and credibility. Williams v. Caterpillar Tractor Co., Fla.App.1963, 149 So.2d 898; Williams v. Florida Realty and Management Co., Fla.App.1973, 272 So.2d 176. On the basis of our review of the briefs and the record on appeal, we are of the opinion that the defendants sustained the burden of proving the non-existence of genuine triable issues. Accordingly, the summary final judgment herein appealed is affirmed.

Affirmed.