Clark v. City of Atlantic Beach, C-55

• Decision Date: 03 November 1960
• Docket Number: No. C-55,C-55
• Citation: 124 So.2d 305
• Parties: Sharon CLARK, Appellant, v. CITY OF ATLANTIC BEACH, a municipal corporation, and Joe Reinertson of Jacksonville, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 305

124 So.2d 305

Sharon CLARK, Appellant, v. CITY OF ATLANTIC BEACH, a municipal corporation, and Joe Reinertson of Jacksonville, Inc., a Florida corporation, Appellees.

No. C-55.

District Court of Appeal of Florida, First District.

Nov. 3, 1960.

Rehearing Denied Dec. 6, 1960.

Arthur J. Gutman and Robert A. Kanter, Jacksonville, for appellant.

Barnes & Slater, Jacksonville, for appellees.

FITZPATRICK, W. L., Associate Judge.

Appellant, Sharon Clark, seeks to reverse a summary judgment rendered in favor of appellees, City of Atlantic Beach, a municipal corporation, and Joe Reinertson of Jacksonville, Inc., a Florida corporation, in an action for damages.

The only point involved is whether or not there existed no genuine issue of material fact entitling appellees to judgment as a matter of law.

Briefly the facts are as follows: Appellee Joe Reinertson of Jacksonville, Inc., a corporation, was installing a sewer system for the City of Atlantic Beach, a municipal corporation. On or about May 6th, 1959, at approximately 9:00 o'clock p. m., on a very dark night the appellant was returning to her home from work. She was driven by her employer north on Ocean Boulevard. When they reached 10th Street they found the east portion thereof blockaded and two lanterns placed on the blockade. Appellant alighted to proceed on foot. She was familiar with this area, having travelled over it many times going to and from work. There were no sidewalks on either side of Ocean Boulevard and the appellant proceeded to walk north just off the pavement on the west side of Ocean Boulevard, as she normally did in returning from work. After she travelled 10 or 15 feet appellant fell in a hole about 2 or 2 1/2 feet deep which was unlighted and unguarded and could not be seen in the darkness. The essential question is whether or not the barricade and lights on the east side of Ocean Boulevard placed appellant on notice that she could not proceed safely in the dark, just off the pavement on the west side of Ocean Boulevard. The Lower Court held that in so doing she was guilty of contributory negligence as a matter of law. We disagree.

It is the settled law of Florida, as recognized by the Court below, that a pedestrian has the right to proceed in darkness where he or she is familiar with the route to be travelled and has no reason to anticipate danger. The rule is clearly stated in City of Palatka v. Woods, Fla., 78 So.2d 562, 563, where Mr. Justice Drew stated, 'She was not required to carry a flashlight to discover whether a walkway which she had a right to assume to be safe was safe in fact.' The rule is further set out in Delany v. Breeding's Homestead Drug Co., Fla., 93 So.2d 116; Rubey v. William Morris, Inc., Fla., 66 So.2d 218; Golding v. Lipkind, Fla., 49 So.2d 539; Mertz v. Krueger, Fla., 58 So.2d 160.

It is also well settled that one against whom a summary judgment has been filed is entitled to all lawful inferences that may be drawn from the evidence and the pleadings.

The blockade of...