Hervey v. Alfonso

• Decision Date: 01 February 1995
• Docket Number: No. 94-01196,94-01196
• Citation: 650 So.2d 644
• Parties: 20 Fla. L. Weekly D326 David HERVEY, Appellant, v. Anthony ALFONSO d/b/a Capital Building Maintenance, Appellee.
• Court: Florida District Court of Appeals

Page 644

650 So.2d 644

20 Fla. L. Weekly D326

David HERVEY, Appellant, v. Anthony ALFONSO d/b/a Capital Building Maintenance, Appellee.

No. 94-01196.

District Court of Appeal of Florida,

Second District.

Feb. 1, 1995.

Rehearing Denied Feb. 22, 1995.

Walt Logan, St. Petersburg, for appellant.

Jeffrey A. Caglianone and Frank A. Miller of Stuart & Strickland, P.A., Tampa, for appellee.

LAZZARA, Judge.

The appellant, David Hervey, challenges a summary final judgment entered in favor of the appellee, Anthony Alfonso d/b/a Capital Building Maintenance. Because we conclude that genuine issues of material fact exist in this record, we reverse and remand for further proceedings.

The appellant filed suit against appellee alleging negligent maintenance of the business premises where appellant worked. He claimed that appellee's employees created a dangerously wet condition on the premises while they were cleaning the floor, thus causing him to slip and fall and to sustain various personal injuries.

After discovery depositions, appellee filed a motion for summary judgment alleging that the record conclusively established that "wet floor" signs had been placed in plain view of appellant warning him of the existence of the wet condition of the floor. He further alleged that despite this warning the appellant proceeded on to the wet area of the floor and subsequently slipped and injured himself. Thus, according to the appellee, he did not negligently cause the accident nor breach any duty owed to the appellant.

The appellant countered in part with the affidavit of a co-worker who was with him at the time of the accident. The co-worker asserted there were no "wet floor" signs in plain view and that he and the appellant were otherwise never warned of the wet floor conditions in the specific area where appellant fell. This individual also specifically refuted the contents of a photograph depicting numerous "wet floor" signs in the area where appellant fell. According to his affidavit, "[t]he signs shown in the picture were not there when [appellant] fell."

After an unrecorded hearing, the trial court entered a perfunctory order granting appellee's motion, followed by the entry of a summary final judgment.

We have consistently held in accordance with Florida Rule of Civil Procedure 1.510(c) that a motion for summary judgment should not be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. E.g., Snyder v. Cheezem Dev. Corp., 373 So.2d 719 (Fla. 2d DCA 1979). The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail. E.g., Gomes v. Stevens, 548 So.2d 1163 (Fla. 2d DCA 1989). Furthermore, it is only after the moving party has met this heavy burden that the nonmoving party is called upon to show the existence of genuine issues of material fact. E.g., Williams v. Beckham & McAliley, P.A., 582 So.2d 1206 (Fla. 2d DCA), review denied, 592 So.2d 683 (Fla.1991).

Thus, if the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied. E.g., Burroughs Corp. v. American Druggists' Ins. Co., 450 So.2d 540 (Fla. 2d DCA 1984). Additionally, even when the facts are uncontroverted, the entry of summary judgment is likewise erroneous if different inferences can be drawn reasonably from those facts. E.g., Staniszeski v. Walker, 550 So.2d 19 (Fla. 2d DCA 1989).

We have also held that in a "slip and fall" negligence case, such as this one, the burden on the moving 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 in a negligence case flows from the supreme court's adoption of the doctrine of comparative negligence in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), as well as its abolition of the doctrine of assumption of the risk in Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). Bradford, 510 So.2d at 1206. Thus, unless a defendant can establish unequivocally the absence of negligence, or that the plaintiff's negligence was the sole proximate cause of the injury, a trial court should not grant summary judgment in favor of the defendant. Id.

It is also well settled that a motion for summary judgment is not a substitute for a trial on the merits. Hence, a trial court is precluded from resolving disputed issues of fact when considering such a motion. E.g., Booth v. Mary Carter Paint Co., 182 So.2d 292 (Fla. 2d DCA 1966). Thus, when a defendant moves for summary judgment, neither the trial court nor this court determines whether the plaintiff can prove the cause of action alleged. The function of the court is solely to determine whether the appropriate record presented in support of summary judgment conclusively shows that the plaintiff cannot prove the claim alleged as a matter of law. E.g., Crandall v. Southwest Florida Blood Bank, Inc., 581 So.2d 593 (Fla. 2d DCA 1991).

The fundamental principle necessitating circumspection on the part of a trial court when considering a motion for summary judgment was set forth long ago by this court in Humphrys v. Jarrell, 104 So.2d 404 (Fla. 2d DCA 1958). We stated there...