Beikirch v. City of Jacksonville Beach, E-224

• Decision Date: 07 January 1964
• Docket Number: No. E-224,E-224
• Citation: 159 So.2d 898
• Parties: Mildred BEIKIRCH and George W. Beikirch, her husband, Appellant, v. CITY OF JACKSONVILLE BEACH, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 898

159 So.2d 898

Mildred BEIKIRCH and George W. Beikirch, her husband, Appellant, v. CITY OF JACKSONVILLE BEACH, a municipal corporation, Appellee.

No. E-224.

District Court of Appeal of Florida, First District.

Jan. 7, 1964.

Rehearing Denied Feb. 10, 1964.

William M. Tomlinson, Arthur T. Boone and Evan T. Evans, Jacksonville, for appellants.

Cox, Grissett, MacLean & Webb, Jacksonville, for appellee.

CARROLL, DONALD K., Judge.

The plaintiffs in a negligence action against a municipal corporation have appealed from a summary final judgment for the defendant entered by the Circuit Court for Duval County.

This summary final judgment was based upon the pleadings and two depositions that had been taken by the parties--the depositions of Mildred Beikirch, the plaintiff wife, and Walter F. Johnson, the defendant's city manager.

In these two depositions the witnesses testified to the following facts:

On October 13, 1961, a large wooden pier, owned by the defendant city and extending into the Atlantic Ocean, was practically destroyed by a fire, leaving in the water a number of charred pilings and other debris in the area where the pier had stood. Realizing that this condition might endanger people on the beach, the city manager ordered the removal of the pilings and the debris that had washed ashore, but this work had not been completed by October 24, 1961, when Mrs. Beikirch was injured. On that day she was walking along the beach within the limits of the defendant city and near where the pier had been, when a wooden beam or piling, washed ashore by the ocean waves, struck and injured her. She identified this beam as one of the charred remnants of the pier that the defendant had permitted to remain in the waters.

In the summary final judgment before us the court did not set forth its reasons for entering the judgment for the defendant--whether because it had concluded that there was no evidence of the defendant's negligence proximately causing the injury or had concluded that the evidence established contributory negligence that barred recovery by the plaintiffs.

The question before us is whether that court erred in entering such summary judgment under our procedural rules in the light of the evidence before it.

The authority for the entry by a trial court of a summary judgment is Rule 1.36 of the Florida Rules of Civil Procedure, 30 F.S.A. In brief, that rule provides that, upon motion of either party and ten days' notice of the hearing thereon, a summary judgment or decree 'shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue at to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.'

In scores of decisions the appellate courts of this state have construed and applied Rule 1.36, usually with reference to the language which we have just quoted from the rule. One of the most important doctrines recognized by our courts is that a summary judgment or decree may not properly be entered even though the evidence is uncontradicted--if that evidence is reasonably susceptible of conflicting inferences. See, for instances, our decisions in Smith v. City of Daytona Beach, Fla.App., 121 So.2d 440 (1960), Pan American Distributing Company v. Sav-a-Stop, Inc., Fla.App., 124 So.2d 753 (1960), and Pollock v. Kelly, Fla.App., 125 So.2d 109 (1960).

Some of the greatest problems perplexing the courts with regard to summary judgments seem to have arisen in negligence actions. In several cases involving such actions the Florida appellate courts have observed that ordinarily the issues of negligence and contributory negligence should be resolved by the jury, rather than disposed of by the court in summary judgment proceedings.

For example, in Drahota v. Taylor Construction Co., Fla., 89 So.2d 16 (1956), the Supreme Court of Florida said in a negligence case in which a summary judgment for the defendant had been entered:

'In City of Williston v. Cribbs, Fla., 82 So.2d 150, we pointed out that the defense of contributory negligence ordinarily presents an issue which should be resolved by the jury. The constitutional right to jury trial demands that particular care be accorded in this field, to the end that controverted issues of fact be resolved not upon pleadings and depositions but by a jury functioning under proper instructions. See Smith v. Poston Bridge & Iron, Inc., Fla., 87 So.2d 581; National Airlines v. Florida Equipment Co., Fla., 71 So.2d 741. * * *'

After quoting the second sentence in the above quotation from the Drahota case, the District Court of Appeal, Third District of Florida, in Holmes v. Forty-Five Twenty-Five, Inc., 133 So.2d 651 (1961), related that rule to negligence actions as follows:

'* * * Negligence cases are extremely troublesome due to the varied fact situations which they present. It has been held that where the case is extremely close on the question of negligence or contributory negligence, 'doubt * * * should always be resolved in favor of a jury trial.' Bess v. 17545 Collins Ave., Inc., Fla.1957, 98 So.2d 490, 492.'

The District Court of Appeal, Second District of Florida, recognized the same doctrine in Rofer v. Jensen, 141 So.2d 791 (1962), saying:

'* * * The general rule, of course, is that issues of negligence or contributory negligence are to be determined by the jury and ordinarily should not be disposed of by the Court in a peremptory manner. Where the facts are such that reasonable persons may fairly arrive at different conclusions, the question of negligence or contributory negligence should be submitted to a jury. 23 Florida Jurisprudence, Negligence, 129, and cases therein cited. Numerous other additional authorities may, of course, be cited but the rule is so well established that it is deemed unnecessary. * * *'

A third rule that is useful in determining the merits of the present appeal is that adverted to in the above quotation from the Holmes case--that when the question of negligence or contributory negligence is extremely close, doubt should always be resolved in favor of a jury trial. This rule was recognized and applied by the Supreme Court of Florida in Bess v. 17545 Collins Avenue, Inc., Fla., 98 So.2d 490 (1957), involving a summary judgment. The Supreme Court said:

'We feel this to be a case extremely close on the question of negligence and contributory negligence and in such cases the doubt thereon should always be resolved in favor of a jury trial. * * *'

In order to place the above three rules in proper perspective, we point out that, despite these rules, the researcher can uncover many negligence cases in which the courts of this state have entered or affirmed summary judgment. In such cases, we must assume that the courts were aware of the said rules and determined that the question of negligence or contributory negligence was not an 'extremely close' one, that the evidence was not susceptible of conflicting inferences, and that the case was not an 'ordinary' case but so extraordinary as to justify the court's determining the questions of fact without submitting them to the jury.

What we say in this opinion, therefore, should not be taken as a holding that a summary judgment should never be entered in a negligence action upon the issues of negligence or contributory negligence. What we do hold is that, when a trial court is considering a motion for summary judgment in a negligence action, the court should always keep in mind and apply the three rules discussed herein before ruling upon such motion.

Applying the said rules to the record on appeal before us, we think that the evidence was susceptible of conflicting inferences on the issues of the defendant's negligence and the plaintiff wife's contributory negligence. At best, the question is extremely close. Under the applicable rules, those issues of fact should be submitted to, and determined by, a jury.

The present case constitutes an almost perfect illustration of the propriety and wisdom of the above three rules, which must be applied before a trial court in a negligence action can properly deprive a litigant of his constitutional right to a jury trial, and enter a summary judgment. For instance, some portions of Mrs. Beikirch's deposition would permit the inference that before she was injured she knew of the fire of October 13 that had nearly destroyed the municipal pier, leaving pilings and other charred debris in the waters, and knew that some debris had washed ashore. One reasonable man might conclude from this that she was negligent in walking on the beach near the water's edge at the time and place. A second reasonable man might from the very same testimony conclude that she was not negligent because, while she may have seen some debris on the shore, she had not seen large objects like pilings wash ashore and so had no reason to anticipate what actually happened. A third reasonable man might take still another view and believe her to be free from negligence because she had a perfect right to walk along the beach and assume that the city, whose employees she had seen working to remove the pilings and debris, would take the necessary precautions to safeguard the public and, in particular remove from the water any pilings that might work loose and wash ashore. A fourth reasonable man might concluded from other testimony she gave that she had not seen any debris that had been washed ashore. These are...