Bess v. 17545 Collins Ave., Inc.
| Decision Date | 27 November 1957 |
| Citation | 98 So.2d 490 |
| Parties | John M. BESS, Appellant, v. 17545 COLLINS AVENUE, Inc., a Florida corporation, doing business as Cavalier Motel, Appellee. |
| Court | Florida Supreme Court |
Aaron A. Foosaner, Miami, for appellant.
Arthur W. Primm, Miami, for appellee.
John M. Bess, the appellant, as plaintiff in the trial court sued the appellee, defendant below, for personal injuries alleged to have been sustained by him while a paying guest of an oceanside motel owned and operated by defendant in Dade County.
Bess alleged that the defendant was negligent in maintaining a metal pipe across a walkway located atop a concrete bulkhead or wall, which wall separated the swimming pool area of the motel from the beach to the east. The metal pipe was alleged to have been raised approximately 1 1/2 inches above and painted the same color as the concrete walkway. Bess alleged that in walking on said walkway he tripped on the pipe and fell down suffering the customarily alleged injuries.
The defendant filed a motion to dismiss and a motion to strike. The court reserved ruling on both until pretrial conference. Defendant then filed its answer in which it admitted only its operation of the motel, denied any negligence on its part and alleged contributory negligence on the part of Bess.
Neither party made motion for summary judgment. There were no affidavits, depositions or admissions filed in the cause. When the cause came before the trial judge for pre-trial conference only the pleadings in the cause were before him.
The minutes of the pre-trial conference reveal that the defendant motel admitted that the plaintiff Bess was a paying guest at the motel and that he had suffered a fall on its premises.
These minutes further reveal that during the course of the pre-trial conference and while the attorney for Bess was relating to the court what he expected to prove at the trial, the trial judge interrupted to inquire if photographs of the scene of the alleged accident were to be offered in evidence.
Defendant produced two photographs which counsel for both parties admitted correctly portrayed the conditions prevailing at the time of the accident and agreed could be introduced in evidence at the trial. The photographs were obviously taken during the morning hours since the pipe in question is covered by shadows falling on the west side of a post located near it. The court was advised by counsel for plaintiff that the accident occurred in mid-afternoon and that the plaintiff had not used the walkway in question prior to the accident.
During the discussion which followed the trial judge said:
'Now, this condition is an obvious one, it seems to me, and I do not see why I should trip or fall as a result of the placing of this piping, unless I am simply not exercising due caution for my own safety.'
Plaintiff's counsel then commented that the color of the pipe was the same as of the concrete walk, causing the pipe to blend so well with the walk that it was impossible to see it. He surmised that the pipe was laid and painted at the same time the walk was laid, whereupon the court replied:
'It will be a jury question, although I doubt it.'
Defendant's counsel seized upon that opportunity to comment on the numerous holdings of this Court that a hotel owner is not an insurer of the safety of its guests. He argued that since it was a bright day the condition was obvious to the plaintiff and he was contributorily negligent in walking over it. The court replied:
Thereafter the trial judge stated that he was disposed to enter, on his own initiative, summary judgment for the defendant, and directed that the two photographs, above-mentioned, be appended to the pre-trial minutes, 'as a basis for the Court's decision.'
Summary judgment was entered for the defendant and this appeal was taken.
Plaintiff, on appeal, contends that there were genuine issues of material fact not admitted or resolved at the time of the entry of the summary judgment, and that the trial judge wrongfully acted as a trier of ...
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Kopf v. City of Miami Beach
...a Miami Beach sidewalk. In our view, the record--including a photograph of the area where the fall took place, see Bess v. 17545 Collins Ave., Inc., 98 So.2d 490 (Fla.1957); Leon v. City of Miami, 312 So.2d 518 (Fla. 3d DCA 1975)--raises issues of negligence, comparative negligence, and cau......
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Buffington v. Continental Cas. Co.
...on motion of a party, is 'swift and dispositive' and requires the same notice and preparation. * * *' See also Bess v. 17545 Collins Avenue, Inc., (Fla.1957), 98 So.2d 490, 491; Raphael v. Koretzky, (Fla.App.1958), 102 So.2d 746. The Raphael case may be distinguished by the fact that the co......
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Isenberg v. Ortona Park Recreational Center, Inc.
...the jury to decide.'); Smith v. Poston Bridge & Iron, Inc., Fla., 87 So.2d 581, (hazard in construction operations); Bess v. 17545 Collins Avenue, Inc., Fla., 98 So.2d 490 (tripping over pipe crossing walkway in midafternoon--the Supreme Court said 'Nor is the fact that in the photographs t......
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Edenfield v. Crisp
...final judgment or decree on his own motion, probably the most drastic procedural device provided by the rules, Bess v. 17545 Collins Ave., Inc., Fla. 1957, 98 So.2d 490. And when the trial Judge gives advance written notice to the parties of the holding of a pre-trial conference, the litiga......