Basden v. Lowery
| Decision Date | 01 February 1966 |
| Docket Number | No. 65-525,65-525 |
| Citation | 182 So.2d 265 |
| Court | Florida District Court of Appeals |
| Parties | Keith BASDEN, a minor, by his next friend, James L. Floyd, Jr., and his natural mother, Isabelle Basden, Appellants, v. Clifford E. LOWERY, Appellee. |
Gershon S. Miller, Miami Beach, Joe N. Unger, Miami, for appellants.
Hawkesworth & Kay, Miami, for appellee.
Before TILLMAN PEARSON, CARROLL and BARKDULL, JJ.
This is an appeal by the plaintiff in the trial court from an adverse summary final judgment. The appellant contends there was a reasonable inference from the admissions in the deposition wherein a jury could have determined that the appellee-defendant was negligent in the operation of an automobile, resulting in the striking of a minor child, by failing to give due attention to the roadway and area surrounding same.
In determining the propriety of the motion for summary judgment, all reasonable inferences are resolved in favor of the party moved against. See: Jaworski v. City of Opa Locka, Fla.App.1964, 170 So.2d 484; Anderson v. Morgan, Fla.App.1965, 172 So.2d 845. It is incumbent upon a defendant, when moving for a summary judgment, to show that there is no genuine issue as to any material fact, [See: Tucker v. American Employers' Insurance Company, Fla.App.1965, 171 So.2d 437; Haynes v. Littleford, Fla.App.1965, 173 So.2d 477] and that he is entitled to a judgment as a matter of law.
From the deposition of the defendant, it is apparent that he was proceeding on a heavily travelled four-lane street in the vicinity of a housing development, wherein there were small children about [of which he was aware], and yet he failed to see the child until he was immediately in front of his automobile; although it was without dispute that the child had crossed at least three lanes of traffic from the left of the driver into the path of the automobile, without the defendant seeing him. It is clearly a reasonable inference that the defendant was guilty of inattention under the circumstances, and the issue should have been resolved by a jury. See: Ehrens v. Miami Transit Company, 155 Fla. 394, 20 So.2d 261; Nabelski v. Turner, Fla.App.1965, 173 So.2d 729; Gabbard v. Knight, 202 Va. 40, 116 S.E.2d 73.
Therefore, for the reasons above stated, the summary final judgment here under review is hereby reversed, and this cause is remanded to the trial court for further proceedings consistent herewith.
Reversed and remanded, with directions.
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Wiggen v. Bethel Apostolic Temple
...evidence. Accordingly, the judgment appealed is reversed and the cause remanded for a new trial. Reversed and remanded. 1 Basden v. Lowery, Fla.App.1966, 182 So.2d 265; Purdue v. Vogelsang, Fla.App.1964, 166 So.2d 902; Kravitz v. Morse Auto Rentals, Inc., Fla.App.1964, 166 So.2d 619; Greenf......
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St. Martin v. Allstate Ins. Co.
...521 (Fla. 3d DCA 1976); Cunningham v. Romano, 278 So.2d 631 (Fla. 3d DCA 1973), cert. denied, 285 So.2d 19 (Fla.1973); Basden v. Lowery, 182 So.2d 265 (Fla. 3d DCA 1966). Since the case is governed by the principle of comparative negligence, our determination to this effect requires that th......
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Mahaffey v. Ahl, 19987
...to the jury whose resolution of the issues against him can not be said to be without support in this record. Cf. Basden v. Lowery, 182 So.2d 265 (Fla.Ct.App. 1966) and Cotant v. United States, 103 F.Supp. 770 (E.D.Idaho The next alleged error is whether or not the trial court was in error i......
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Karnegis v. Oakes, s. 74--47
...or indirectly. The rule as to summary judgments for defendants has too often been stated to need repetition here. See Basden v. Lowery, Fla.App.1966, 182 So.2d 265. Applying these principles to the record before us, it is apparent that by giving the benefit of all inferences to the plaintif......