City of Tampa v. Banks
| Citation | 120 So.2d 788 |
| Parties | CITY OF TAMPA, a municipal corporation, Petitioner, v. John G. BANKS and his wife, Ann H. Banks, Respondents. |
| Decision Date | 11 May 1960 |
| Court | United States State Supreme Court of Florida |
Ralph A. Marsicano, Neil C. McMullen and William R. McCown, Tampa, for petitioner.
T. Truett Ott, of Hardee & Ott, Tampa, for respondents.
After a thorough consideration of the file in this cause following the argument of counsel for all parties, it is the judgment of the court that the writ of certiorari heretofore issued be discharged.
It is so ordered.
By petition for certiorari the City of Tampa, petitioner here, seeks review and quashal of a decision of the Second District Court of Appeal, Banks v. City of Tampa, Fla.App.1959, 112 So.2d 888, reversing on appeal by the respondents a summary judgment entered in the trial court in favor of the City in a suit for damages brought by the respondents against the City for injuries sustained by the respondent wife when she tripped and fell on an alleged defect in a City sidewalk. As the basis for its per curiam decision of reversal the appellate court stated merely that 'The record reveals the existence of a genuine issue as to a material fact, namely, whether or not appellant wife saw or should have seen the alleged defect in the sidewalk of the City of Tampa.'
An examination of the pleadings, including the plaintiff-wife's deposition, and the summary judgment of the trial court reflect a conflict with the decision of this court in Dewar v. City of Miami, Fla.1957, 93 So.2d 58, and similar cases, on the point of law decided by the appellate court. It further appeared from the argument in brief made by the plaintiff-respondents in support of the appellate court's decision of reversal, that the decisions of this court in the Dewar case and other similar cases may have been--and probably were--misinterpreted by the appellate court, and that some confusion exists as to the proper application of settled principles of law, referred to hereafter, to undisputed facts in determining, upon motion of the defendant, whether a plaintiff injured by an alleged defect in a sidewalk has been guilty of contributory negligence as a matter of law. For these reasons and to insure harmony in and a standardization of decisions on this question for the benefit of the Bench and Bar, we issued the writ and heard the oral argument of counsel at the Bar of this court. A majority of the court feels that we do not have jurisdiction to correct the error. I disagree and therefore respectfully dissent. The cause is now before the court for final disposition.
In the Dewar case, supra, 93 So.2d 58, 59, a photograph of the general area of the sidewalk near the point where Mrs. Dewar stepped into a wide deep crack, which she referred to as a 'hole', showed that there were many cracks in the sidewalk in the general area. Mrs. Dewar's statements in her deposition showed that she was aware of the generally cracked condition of the sidewalk and was watching where she was going, but that she did not see the hole before she stepped into it. In affirming a summary judgment in favor of the defendant City this court said:
The facts of the instant case are very similar. A photograph showed the obviously defective condition of the sidewalk in the general area near where the plaintiff fell. Her statements in her deposition showed that she was aware of the generally defective condition of the sidewalks in Ybor City from traversing them in performing her duties as an enumerator, and is susceptible of the inference that she was aware of the generally defective condition of the particular sidewalk she was traversing. She said, however, that she did not see the particular defect upon which she stumbled because she was not looking, and that if she had seen it, she wouldn't have fallen.
In support of the appellate court's decision of reversal the plaintiffs-respondents argue that, under the decisions of this court in the Dewar case, supra, 93 So.2d 58, Chambers v. Southern Wholesale, Inc., Fla.1957, 92 So.2d 188, and City of Jacksonville v. Stokes, Fla.1954, 74 So.2d 278, a plaintiff injured by a defect or dangerous condition in or upon a sidewalk must have actual knowledge in the exact defect or danger resulting in the injury, and must then voluntarily proceed into or upon the defect or danger, in order to be found guilty of contributory negligence as a matter of law. This is, of course, the rule applicable to the defense of 'assumption of risk'; and such an interpretation of our decisions in the cited cases would, in effect, withdraw from a defendant the benefit of the defense of contributory negligence, as a matter of law, in this type of case. It was not our intention to so hold.
As noted above, reference to the record and Mrs. Dewar's deposition shows that, although she was aware of the general condition of the sidewalk, she did not see the 'hole', as she called it, before she stepped into it. She said that she saw that the entire area was cracked but that she 'didn't see anything that was other than cracks.' In the Chambers case , it appeared that Mrs. Chambers saw the puddle of water on the sidewalk 'just about the time' she stepped in it; and the language of this court in that case to the effect that Mrs. Chambers 'could easily have avoided stepping upon the wet spot' did not mean that she voluntarily stepped on it; we meant only that, if she had been exercising due care to observe the obvious condition of the sidewalk before proceeding thereon after getting out of her car, she could have stepped around it. The statement in the opinion that 'The presence of water on a public sidewalk is not so unusual as to justify a user of the sidewalk in wholly ignoring the possibility of...
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