Bradford v. Bernstein
| Citation | 12 Fla. L. Weekly 2013,510 So.2d 1204 |
| Decision Date | 12 August 1987 |
| Docket Number | No. 86-2895,86-2895 |
| Parties | 12 Fla. L. Weekly 2013 Karen Jo BRADFORD and Jerry Bradford, her husband, Appellants, v. Howard BERNSTEIN, Appellee. |
| Court | Court of Appeal of Florida (US) |
Clay B. Rood of Rood & Associates, Tampa, for appellants.
Bonita L. Kneeland of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee.
Appellants (plaintiffs below) appeal the trial court's order granting appellee's (defendant below) motion for summary judgment. The trial court found "a complete absence of evidence on the issue of causation, insofar as the only testimony or evidence presented herein is evidence on the mere possibility of a causal link and as such this is insufficient as a matter of law."
This is a "slip and fall" case. Appellants, in their complaint, allege that Mrs. Bradford slipped and fell down a flight of stairs while at work. Appellee is the owner of the building in which Mrs. Bradford works, and appellants allege that the unsafe construction of the stairs was the cause of the fall. Appellee answered claiming as an affirmative defense Mrs. Bradford's contributory negligence.
In the course of the pleadings, appellants submitted an affidavit of a general contractor. The affidavit included measurements of the stairs and the contractor's statements that the stairs in question violated the following three requirements of the Southern Standard Building Code: the proportionality formula; the minimum tread requirement; and the uniformity principle. The deposition of Mrs. Bradford was taken and she testified she did not recall the specifics of how the fall occurred. Appellee filed a motion for summary judgment based on the allegation that there was no evidence of negligence. Appellants then filed the affidavit of an architect who stated, after a review of the measurements and drawings of the contractor and pictures of the stairwell, that the violations of the code "more likely than not [were] a proximate cause or a contributing cause of the accident and injuries sustained therein by Karen Jo Bradford on April 5, 1984."
Appellee's counsel took the deposition of appellants' architect, and on direct examination, the architect agreed with counsel for appellee who stated the "measurement discrepancies possibly played a part in the fall." On cross-examination by appellants' counsel, the architect was given a hypothetical situation paralleling the facts alleged in this case and asked, "Do you think it's more likely than not within your professional opinion that these code violations contributed to this fall?" The architect answered:
Okay. In a hypothetical case like this I think the violations very seriously affect the hypothetical. That a person coming down these stairs, given the fact that the tread is narrower than the Code allows and the stair is steeper than the Code allows and the stair is not uniform, you have all the elements for a fall to occur. I wouldn't be surprised if other falls don't occur on that same stair.
Prior to the hearing at which the motion for summary judgment complained of here was granted, a second affidavit of the architect was filed wherein he stated, "It is my professional opinion within a reasonable degree of architectural probability that the code violations was [sic] a proximate cause of Karen Jo Bradford's accident of April 5, 1984." This appeal is from the granting of the motion for summary judgment and the denial of appellants' motion for rehearing.
For the reasons stated below, we reverse the trial court's order granting summary judgment and remand with instructions that the case proceed to trial. Because we find merit in appellants' first point on appeal, we do not reach the second and third points dealing with the motion for rehearing.
The Supreme Court of Florida has recited certain considerations that should be made in ruling on summary judgment motions:
Summary judgments should be cautiously granted in negligence and malpractice suits. [citation omitted] The law is well settled in Florida...
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Lambert v. Indian River Elec., Inc., 87-2775
...See, e.g., Moore v. Morris, 475 So.2d 666 (Fla.1985); Bess v. 17545 Collins Avenue Inc., 98 So.2d 490 (Fla.1957); Bradford v. Bernstein, 510 So.2d 1204 (Fla. 2d DCA 1987); Brooks v. Plant, 296 So.2d 71 (Fla. 2d DCA 1974). See also, Gorday v. Faris, 523 So.2d 1215 (Fla. 1st DCA), rev. denied......
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Hervey v. Alfonso
...party is even more onerous, requiring the trial court to employ special care in granting summary judgment. E.g., Bradford v. Bernstein, 510 So.2d 1204, 1206 (Fla. 2d DCA 1987) (quoting Wills v. Sears, Roebuck & Co., 351 So.2d 29, 30-31 (Fla.1977)). The necessity for exercising such caution ......
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Staniszeski v. Walker, 89-00145
...The court must view any inference in the light most favorable to the nonmoving party. Moore, 475 So.2d at 668; Bradford v. Bernstein, 510 So.2d 1204 (Fla. 2d DCA 1987). In the case now before us, Mrs. Staniszeski testified in a deposition that she was unsuccessful in six attempts at collari......
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Wolford v. Ostenbridge, 2D03-274.
...improper for the trial court to weigh the expert's testimony; that is a function for the jury as finder of fact. See Bradford v. Bernstein, 510 So.2d 1204 (Fla. 2d DCA 1987). The mere fact that the expert testified that the swing was negligently installed creates genuine issues of material ......