Fitzsimmons ex rel. Fitzsimmons v. City of Pensacola

District Court of Appeal of Florida

Fitzsimmons ex rel. Fitzsimmons v. City of Pensacola

330 So. 2d 756, 1976 Fla. App. LEXIS 15068

District Court of Appeal of Florida·Decided February 20, 1976·No. No. Y-69·Published

Opinion

LEE, THOMAS E., Associate Judge.

This cause is before this court on the sole issue of the propriety of the trial court entering a summary judgment in favor of the defendant on the ground there was no genuine issue as to any duty on the part of the defendant to maintain in a safe condition the dock or wharf upon which the minor plaintiff was injured. It is our opinion that the court erred in granting summary judgment.

The pleadings, depositions and oral argument presented to this court have been considered in toto. Norman v. Bank of Hawthorne, Fla.App., 321 So.2d 112, “A trial court, in ruling on a motion for summary judgment, may not resolve controverted issues of fact. The principles of law applicable to summary judgment have been heretofore thoroughly discussed by this Court (Connell v. Sledge, Fla.App. 1st, 1975, 306 So.2d 194, Forrest v. Carter, Fla.App. 1st, 1975, 308 So.2d 141 and Burlingham v. Allen, Fla.App. 1st, 1975, 317 So.2d 781, opinion filed August 13, 1975) and nothing will be added to the jurispru[757] dence of this State by again reciting those principles here.” See, also, Campbell v. Anheuser-Busch, Inc. and Nexbitt, Fla.App., 265 So.2d 557.

For the reasons stated, the summary judgment appealed is reversed and remanded for further proceedings.

BOYER, C. J., and HATCHETT, JOSEPH W., Associate Judge, concur.

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LEE, THOMAS E., Associate Judge.

This cause is before this court on the sole issue of the propriety of the trial court entering a summary judgment in favor of the defendant on the ground there was no genuine issue as to any duty on the part of the defendant to maintain in a safe condition the dock or wharf upon which the minor plaintiff was injured. It is our opinion that the court erred in granting summary judgment.

The pleadings, depositions and oral argument presented to this court have been considered in toto. Norman v. Bank of Hawthorne, Fla.App., 321 So.2d 112, “A trial court, in ruling on a motion for summary judgment, may not resolve controverted issues of fact. The principles of law applicable to summary judgment have been heretofore thoroughly discussed by this Court (Connell v. Sledge, Fla.App. 1st, 1975, 306 So.2d 194, Forrest v. Carter, Fla.App. 1st, 1975, 308 So.2d 141 and Burlingham v. Allen, Fla.App. 1st, 1975, 317 So.2d 781, opinion filed August 13, 1975) and nothing will be added to the jurispru[757] dence of this State by again reciting those principles here.” See, also, Campbell v. Anheuser-Busch, Inc. and Nexbitt, Fla.App., 265 So.2d 557.

For the reasons stated, the summary judgment appealed is reversed and remanded for further proceedings.

BOYER, C. J., and HATCHETT, JOSEPH W., Associate Judge, concur.

Fitzsimmons ex rel. Fitzsimmons v. City of Pensacola, 330 So. 2d 756, 1976 Fla. App. LEXIS 15068 (Fla. Ct. App. 1976).

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