McKean v. Kloeppel Hotels, Inc.

• Decision Date: 09 February 1965
• Docket Number: No. F-333,F-333
• Parties: Stella M. McKEAN, Appellant, v. KLOEPPEL HOTELS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 552

171 So.2d 552

Stella M. McKEAN, Appellant, v. KLOEPPEL HOTELS, INC., Appellee.

No. F-333.

District Court of Appeal of Florida, First District.

Feb. 9, 1965.

Rehearing Denied March 5, 1965.

Smith & Werber; and Jack F. Wayman, Jacksonville, for appellant.

Cox, Grissett & Webb, Jacksonville, for appellee.

STURGIS, Chief Judge.

Appeant, platiff below, seeks reversal of a summary final judgment for the defendant-appellee in a negligence action. The appeal also challenges an order of the trial court denying appellant's petition for rehearing under Rule 2.8, F.R.C.P., 31 F.S.A.

The complaint charged that defendant rendered its services and facilities for a cocktail party and banquet to an oranization of which plaintiff was a member; that defendant negligently maintained the premises by allowing an accumulation of water to remain on the dance floor for a period of 15 minutes or longer, thereby creating a dangerous and unsafe condition; and that as a proximate result of defendant's negligence plaintiff slipped and fell, seriously injuring hereself. The answer denied the material allegations of the complaint and affirmatively asserted the defenses of contributory negligence and assumption of risk.

Defendant filed the following requests for admissions and plaintiff answered as indicated:

Request No. 1: 'That shortly prior to the occurrence described in paragraph numbered 7 of your complaint herein, you commenced to walk over to the piano located on defendant's premises in a room thereof in which you were attending a cocktail party.'

Answer: 'Admitted.'

Request No. 2: 'That at the time and place set forth in request for admission No. 1 above, and while walking toward the piano, you saw a large puddle of water, or a spilled drink or some liquid substance on the floor in said room.'

Answer: 'Denied.'

Request No. 3: 'That after seeing the liquid substance described in request for admission 2 above, you passed Mr. Bill Hall, who asked you to dance.'

Answer: 'Admitted.'

Request No. 4: 'That at the time and place described in request for admissions 1, 2, and 3 above, you accepted Mr. Hall's invitation to dance and then warned Mr. Hall to watch out for the liquid substance which you had previously seen on the floor.'

Answer: 'Admitted.'

Request No. 5: 'That following the occurrence described in request for admission No. 4 above, Mr. Hall, while dancing with you, pushed you outward from him for a turn, and as he did so you stepped in the liquid substance referred to in request for admission numbered 2 above, at which time you fell to the dance floor.'

Answer: 'Denied--for the reason that the matters contained in request No. 5 occurred simultaneously with the matters referred to in request No. 4, rather than 'following' same.'

On the basis of the complaint, the answer thereto, and plaintiff's responses to the requests for admissions, defendant moved for summary judgment on the ground, in substance, that there is no genuine issue of material fact on the question of contributory negligence, in that it is uncontradicted that plaintiff's negligence proximately contributed to the accident and her injuries. Plaintiff filed an affidavit in opposition to said motion, in which she states:

'The party was being held in the ballroom of the George Washington Hotel and, at approximately 8:30 P. M., I walked across the dance floor toward the piano where I passed by Bill Hall, another member of the group. As I passed, Bill Hall asked me if I would care to dance and I replied in the affirmative so we began dancing.

'A few moments after we hed started dancing Bill Hall was in the process of throwing me out for a turn or twirling me, when I noticed a large puddle of water, or a spilled drink, or some liquid substance on the dance floor. As soon as I noticed the liquid substance on the floor I told Bill Hall something substantially like, 'Watch out for the water,' but he was already in the process of twirling me, or throwing me out for a turn, and as he pushed me out I hit the water with my foot and fell, striking my face on the floor.

'The first time I saw the water, or spilled drink, or some liquid substance, on the floor, was when I was dancing with Bill Hall and my seeing the subtance, warning, and Bill Hall's throwing me our for a turn occurred almost simultaneously.'

The summary judgment herein takes note of the fact that plaintiff's affidavit 'refutes the material factual situation' developed by plaintiff's answers to defendant's requests for admission. The trial court held that under such circumstances the affidavit may not be considered to the extent that it alters said admissions.

Consequent upon entry of the summary final judgment, plaintiff filed a petition under Rule 2.8, Florida Rules of Civil Procedure, for a rehearing and to vacate the same on grounds which may be summarized as follows: (1) that plaintiff's affidavit is not inconsistent with her answers to defendant's requests for admissions, and (2) that in passing on the motion for summary judgment the trial court was obliged to liberally construe in plaintiff's favor the answers made by her to defendant's requests for admissions, and that in so doing it was necessary, in view of her response to Request No. 2, supra, to construe her response to Request No. 3, supra, as being nothing more than an admission that on the way toward the piano she passed Mr. Hall who asked her to dance.

The order denying the petition for rehearing cogently states:

'The Court finds itself incapable of reading into the admissions that which is contended for by plaintiff's counsel * * *. Suffice it to say, plaintiff admits that prior to being asked to dance, she observed a liquid substance on the dance floor, accepted the invitation to dance, and thereafter slipped and fell.'

Florida Rule of Civil Procedure 1.30, 30 F.S.A. is adapted from a similar federal rule. Our rule provides in part that 'A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party deny only a part or a qualification of a matter of which an admission is requested, he shall specify so much of it as true and deny only the remainder.' Federal decisions construing the rule are highly persuasive. Wider v. Carraway, 101 So.2d 13 (Fla.App.2d 1958). In Southern Ry. Co. v. Crosby, 201 F.2d 878, 36 A.L.R.2d 1186 (1953), the United States Court of Appeal, 4th Circuit, considering a similar situation, said:

'The rule requires sworn statement denying 'specifically' the matters of which an admission is requested or a statement 'setting forth in detail' the reasons why an admission or denial cannot truthfully be given. As said in Barron & Holtzoff, Federal Practice and Procedure, Rules Edition vol. 2 pp. 543, 544:

"A denial in such sworn statement must fairly meet the substance of the requested admission, and when good faith requires that a party deny only partly or with a qualification, a matter as to which an admission is requested, h...