Forrest v. Carter, T--54

• Decision Date: 28 January 1975
• Docket Number: No. T--54,T--54
• Citation: 308 So.2d 141
• Parties: William H. FORREST, as Husband and Administrator of the Estate of Frances Jean Forrest, deceased, Appellant, v. W. D. CARTER and Lisenby Hospital, Ltd., a limited partnership, Appellees.
• Court: Florida District Court of Appeals

Page 141

308 So.2d 141

William H. FORREST, as Husband and Administrator of the Estate of Frances Jean Forrest, deceased, Appellant, v. W. D. CARTER and Lisenby Hospital, Ltd., a limited partnership, Appellees.

No. T--54.

District Court of Appeal of Florida, First District.

Jan. 28, 1975.

Robert Orseck, of Podhurst, Orseck & parks, and Colson & Hicks, Miami, for appellant.

Ernest W. Welch, Panama City, and Donald H. Partington, of Harrell, Wiltshire, Bozeman, Clark & Stone, Pensacola, for appellees.

PER CURIAM.

On the morning of November 11, 1970, Mrs. Frances Jean Forrest, a patient of Dr. W. D. Carter at Lisenby Hospital in Bay County, Florida, gave birth prematurely to a baby boy. A few hours later the baby died and that evening Mrs. Forrest died. As a result of his wife's death, Mr. William H. Forrest, the surviving husband and administrator, sued Dr. Carter and Lisenby Hospital for damages in Bay County Circuit Court. The action was commenced under the wrongful death statute, former F.S. 768.01--768.02, and the survival statute, F.S. 46.021. The complaint, as amended, alleged various acts of professional negligence in the treatment and care of the decedent. The liability insurance carriers were joined as parties defendants. The defendants answered, denied liability, and interposed affirmative defenses of contributory negligence and assumption of risk. Various motions and orders, directed to the pleadings and discovery, were made. A mass of the discovery was had, and eight depositions were taken and filed. The defendants ultimately moved for summary final judgment. An expert witness affidavit was filed by the plaintiff. Thereafter, a hearing was had on February 27, 1973, at the conclusion of which the trial court granted the motions for summary judgments. Separate summary final judgments were entered in favor of Dr. Carter and Lisenby Hospital. Separate appeals were taken by the plaintiff from each of those summary judgments. We here consider the appeal taken from the summary final judgment in favor of Dr. Carter.

The sole point on appeal relates to the propriety of the entry of the summary judgment.

First, we observe that there is a clear distinction between a motion to dismiss and a motion for summary judgment. They are governed by different rules and civil procedure. Generally, motions to dismiss are governed by Rule 1.420 RCP, motions for summary judgment by Rule 1.510 RCP.

The principles controlling summary judgments have been carefully delineated in the rules and case law. (Rule 1.510 RCP; Connell v. Sledge et al., Fla.App., 306 So.2d 194, opinion filed January 16, 1975; Holl v. Talcott, Sup.Ct.Fla.1966, 191 So.2d 40; Visingardi v. Tirone, Sup.Ct.Fla.1966, 193 So.2d 601; Biro v. Geiser, Sup.Ct.Fla.1967, 199 So.2d 461; Scanlon v. Litt, Sup.Ct.Fla.1966, 191 So.2d 553; Spencer v. Halifax Hospital District, Fla.App.1st 1970, 242 So.2d 143; Wilson v. State Road Department, Fla.App.1st 1967, 201 So.2d 619; Campbell v. Anheuser-Busch, Inc., Fla.App.1972, 265 So.2d 557; Croft v. York, Fla.App.1st 1971, 244 So.2d 161; Hodor v. Sayet, Fla.App.3rd 1967, 196 So.2d 205; Lab v. Hall, Fla.App.4th 1967, 200 So.2d 556; and Casewell v. Nethery, Fla.App.1st 1972, 258 So.2d 846) No useful purpose will be served by repeating those principles here....