Connolly v. Sebeco, Inc.

Decision Date12 September 1956
PartiesJames J. CONNOLLY, Appellant, v. SEBECO, Inc., a New York corporation, C. Thomas Shinn, Jr., d/b/a Shinn Construction Co., and Tropicana Motel, Inc., a Florida corporation, Appellees.
CourtFlorida Supreme Court

Russell C. Gay and Matthew M. Slepin, Miami, for appellant.

Wicker & Smith, Miami, for Sebeco, Inc., and Tropicana Motel, Inc.

Blackwell, Walker & Gray, Miami, for C. Thomas Shinn, Jr., d/b/a Shinn Const. Co., appellees.

TAYLOR, Associate Justice.

Plaintiff below, a motel guest, in going from his room to the nearby beach used a flight of stairs the lowest of which was some thirty or forty inches from the beach. The condition of the stairs was the result of construction work in connection with certain changes being made in the premises. Plaintiff negotiated the stairs safely in going to the beach, but in returning to his room he attempted to mount the stairs, his foot slipped and he fell and received injuries.

He sued the owner of the motel, the operator of the motel and the contractor performing the construction work. Each defendant filed a motion to dismiss the complaint and each such motion was denied.

After answers were filed, in which contributory negligence was pled, depositions were taken, affidavits filed and each defendant moved for a summary judgment. These motions were granted and the plaintiff appealed.

Counsel appear to have misconstrued or misunderstood the rules and decisions applicable to the situation presented by the record in this case. To the end that further unnecessary appeals may be avoided we state briefly the following principles applicable to cases of this nature.

The purpose of a complaint is to advise the Court and the defendant of the nature of a cause of action asserted by the plaintiff. The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. For the purpose of passing upon a motion to dismiss the Court must assume all facts alleged in the complaint to be true. Consequently a motion to dismiss a complaint must be decided on questions of law and questions of law only.

On the other hand a motion for summary judgment, in a case of this sort, raises only questions of act and must be decided upon evidence and not pleadings.

The purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good cause of action. The purpose of a motion for summary judgment is to determine if there be sufficient evidence to justify a trial upon the issues made by the pleadings. They thus serve entirely different functions.

It frequently...

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  • Boynton v. Burglass
    • United States
    • Florida District Court of Appeals
    • September 24, 1991
    ...all facts pled in the complaint, and thus assume that Blaylock made an actual, specific threat against Wayne Boynton. See Connolly v. Sebeco, 89 So.2d 482 (Fla.1956).6 For an overview of decisions from other jurisdictions that have addressed Tarasoff, see generally Annotation, Liability of ......
  • Popwell v. Abel, 1442
    • United States
    • Florida District Court of Appeals
    • September 19, 1969
    ...Erie Chemical Co. v. Stinson, Fla.App.1966, 181 So.2d 587; Simon v. Tampa Electric Co., Fla.App.1967, 202 So.2d 209.3 Connolly v. Sebeco, Inc., Fla.1956, 89 So.2d 482.4 Rule 1.110(d) F.R.C.P., 30 F.S.A.5 Croft v. Young, Fla.App.1966, 188 So.2d 859. However, please note that effective Jan. 1......
  • Garcia v. Duffy
    • United States
    • Florida District Court of Appeals
    • July 30, 1986
    ...to dismiss, we assume that all facts alleged in the complaint are true and decide the issue on questions of law only. Connolly v. Sebeco, 89 So.2d 482 (Fla.1956). Plaintiff's counsel on appeal concedes that damages are not being sought under the doctrine of respondeat superior; nevertheless......
  • Ganaway v. Henderson
    • United States
    • Florida District Court of Appeals
    • June 24, 1958
    ...See: Williams v. Wetmore, supra, Note 5; Rivas v. Summers, 33 Fla. 539, 15 So. 319.7 Miller v. Rolfe, Fla.App.1957, 97 So.2d 132.8 (Fla. 1956), 89 So.2d 482. See Stone v. Stone (Fla.App. 1957), 97 So.2d 352.9 Cf.: Marek v. Patterson, Fla.1954, 75 So.2d 808; Blanton v. Woodward, 107 Fla. 691......
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