Marinaro v. Redding, 5D99-1970.

• Decision Date: 28 July 2000
• Docket Number: No. 5D99-1970.,5D99-1970.
• Citation: 762 So.2d 1048
• Parties: Joseph D. MARINARO, Appellant, v. Eleanor REDDING, Appellee.
• Court: Florida District Court of Appeals

762 So.2d 1048

Joseph D. MARINARO, Appellant, v. Eleanor REDDING, Appellee.

No. 5D99-1970.

District Court of Appeal of Florida, Fifth District.

July 28, 2000.

Carey N. Bos of Bos & Plummer, P.A., Orlando, for Appellant.

No Appearance for Appellee.

THOMPSON, C.J.

This non-final appeal arises from a partial summary judgment as to negligence entered in favor of plaintiff Eleanor Redding, the appellee in this cause. We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(B) and 9.130(a)(3)(C)(iv). We reverse.

Redding's complaint against Joseph Marinaro stemmed from a January 15, 1996, accident which took place as she was riding her bicycle and came into contact with Marinaro's vehicle. She allegedly was thrown from her bicycle and suffered injuries.

According to Redding's deposition, she was riding her bicycle north on a bike path on State Road A1A just south of Melbourne Beach. The four foot wide asphalt path is a paved area attached to A1A. It passes in front of a convenience store parking lot, where cars entering and exiting must cross the bike path in order to get on or off A1A. As Redding approached the area of the path near the parking lot, she observed Marinaro's station wagon stopped in the parking lot but intruding into the bike path. She thought Marinaro was clearly planning to drive onto A1A going south, but waiting for traffic to thin out so as to safely enable him to do so. Redding asserts that she had the right-of-way and was riding in front of Marinaro when he accelerated out of the parking lot without seeing her and clipped her. Marinaro's deposition and interrogatories reveal that he recalls the accident differently. As he remembers it, he was safely stopped and positioned to drive onto A1A from the parking lot, perhaps sitting partially on the path, when Redding collided into his vehicle, and thus she was at fault.

Redding moved for summary judgment on a number of issues, including negligence and comparative negligence. During the hearing on the motion, Redding's counsel argued that Redding had the right-of-way on the bike path and thus Marinaro's intrusion into the bike path and then accelerating and hitting her made him liable. In response, Marinaro's counsel pointed out that according to Marinaro's testimony, Redding hit him while he was safely stopped on the driveway in order to proceed onto A1A. The trial court denied the motion as to comparative negligence but granted it as to negligence without...