117 So.2d 731 (Fla. 1960), Nielsen v. City of Sarasota

Citation:117 So.2d 731
Party Name:Kenneth NIELSEN, minor, by his Mother and next friend, Clara Nielsen, and Clara Nielsen, Individually, Petitioners, v. CITY OF SARASOTA, a municipal corporation of the State of Florida, and Sarasota Bay Post No. 30, American Legion, a Florida Corporation, Respondents.
Case Date:February 03, 1960
Court:Supreme Court of Florida
 
FREE EXCERPT

Page 731

117 So.2d 731 (Fla. 1960)

Kenneth NIELSEN, minor, by his Mother and next friend, Clara Nielsen, and Clara Nielsen, Individually, Petitioners,

v.

CITY OF SARASOTA, a municipal corporation of the State of Florida, and Sarasota Bay Post No. 30, American Legion, a Florida Corporation, Respondents.

Supreme Court of Florida.

February 3, 1960

Page 732

J. W. Cullis of Icard, Merrill & Cullis, Sarasota, for petitioners.

Worth Dexter, Jr., of Dexter, Conlee & Bissell, Sarasota, for City of Sarasota.

R. C. Glos and Thomas C. MacDonald, Jr., of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for Sarasota Bay Post No. 30, American Legion.

THORNAL, Justice.

Petitioners seek review of a decision of the District Court of Appeal, Second District, which allegedly conflicts with a prior decision of this Court. Article V, Section 4(2), Florida Constitution, F.S.A. Sensing potential jurisdiction we granted certiorari.

The point to be determined is whether the decision below is in conflict with the decision of this Court in Tucker Brothers, Inc. v. Menard, Fla., 90 So.2d 908.

We rely entirely upon the factual summary related by the Court of Appeal in the opinion submitted for review. It appears as Nielsen v. City of Sarasota, 110 So.2d 417. A summary judgment against the mother individually is not submitted

Page 733

for review. With reference to the claim of the minor, the trial judge entered a summary judgment for the defendant-respondents because he had the view that there was a total lack of any genuine material issue. He held that there was no showing of negligence. He also held that there was no showing that the injury to Kenneth was the proximate result of the alleged negligence. The Court of Appeal affirmed with the view that 'There is a total lack of certain evidence to provide proximate cause even if it might be said that there was some evidence of negligence * * *' 110 So.2d at page 420. For purposes of this review, therefore, we must assume the presence of proof of negligence, and limit our consideration to the rule regarding proximate cause. Inasmuch as the Court of Appeal did not pass on the trial court's ruling regarding lack of evidence of negligence, we must do likewise. We limit ourselves entirely to a review of the point of law passed upon in the decision under consideration. Van Fleet v. Lindgren, Fla., 107 So.2d 381.

The petitioners contend that there was adequate...

To continue reading

FREE SIGN UP