Nielsen v. City of Sarasota, No. 30

CourtUnited States State Supreme Court of Florida
Writing for the CourtTHORNAL; THOMAS; ROBERTS; DREW
Citation117 So.2d 731
Docket NumberNo. 30,A
Decision Date03 February 1960
PartiesKenneth NIELSEN, minor, by his Mother and next friend, Clara Nielsen, and Clara Nielsen, Individually, Petitioners, v. CITY OF SARASOTA, a municipal corporation of the State of Florida, and Sarasota Bay Postmerican Legion, a Florida Corporation, Respondents.

Page 731

117 So.2d 731
Kenneth NIELSEN, minor, by his Mother and next friend, Clara Nielsen, and Clara Nielsen, Individually, Petitioners,
v.
CITY OF SARASOTA, a municipal corporation of the State of Florida, and Sarasota Bay Post No. 30, American Legion, a Florida Corporation, Respondents.
Supreme Court of Florida.
Feb. 3, 1960.

Page 732

J. W. Cullis of Icard, Merrill & Cullis, Sarasota, for petitioners.

Worth Dexter, Jr., of Dexter, Conlee & Bissell, Sarasota, for City of Sarasota.

R. C. Glos and Thomas C. MacDonald, Jr., of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for Sarasota Bay Post No. 30, American Legion.

THORNAL, Justice.

Petitioners seek review of a decision of the District Court of Appeal, Second District, which allegedly conflicts with a prior decision of this Court. Article V, Section 4(2), Florida Constitution, F.S.A. Sensing potential jurisdiction we granted certiorari.

The point to be determined is whether the decision below is in conflict with the decision of this Court in Tucker Brothers, Inc. v. Menard, Fla., 90 So.2d 908.

We rely entirely upon the factual summary related by the Court of Appeal in the opinion submitted for review. It appears as Nielsen v. City of Sarasota, 110 So.2d 417. A summary judgment against the mother individually is not submitted

Page 733

for review. With reference to the claim of the minor, the trial judge entered a summary judgment for the defendant-respondents because he had the view that there was a total lack of any genuine material issue. He held that there was no showing of negligence. He also held that there was no showing that the injury to Kenneth was the proximate result of the alleged negligence. The Court of Appeal affirmed with the view that 'There is a total lack of certain evidence to provide proximate cause even if it might be said that there was some evidence of negligence * * *' 110 So.2d at page 420. For purposes of this review, therefore, we must assume the presence of proof of negligence, and limit our consideration to the rule regarding proximate cause. Inasmuch as the Court of Appeal did not pass on the trial court's ruling regarding lack of evidence of negligence, we must do likewise. We limit ourselves entirely to a review of the point of law passed upon in the decision under consideration. Van Fleet v. Lindgren, Fla., 107 So.2d 381.

The petitioners contend that there was adequate circumstantial evidence from which a jury could properly infer a causal relationship between the negligence of the respondent and the ultimate injury. They assert that the Court of Appeal required direct, testimonial evidence of proximate cause and therefore its decision collided with our decision in Tucker Brothers, Inc. v. Menard, supra.

The respondents contend that there is no jurisdictional conflict and, moreover, that the summary judgment was correctly entered in their behalf and was, therefore, properly affirmed because of the total lack of any evidence that would justify a jury in finding a proximate causal relationship between the negligence and the injury.

In recent years we have several times undertaken a discussion of the rules applicable to circumstantial evidence and justifiable inferences therefrom in civil actions, as distinguished from criminal cases. Dehon v. Heidt, Fla.1949, 38 So.2d 39; Voelker v. Combined Ins. Co. of America,...

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106 practice notes
  • Frankel v. City of Miami Beach, No. 45932
    • United States
    • Florida Supreme Court
    • September 23, 1976
    ...which conflicted with the rule this Court formulated in Osceola Groves v. Wiley, 78 So.2d 700 (Fla.1955) and Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). Moreover, the Third District in deciding Frankel and the above cases created a conflict by purportedly accepting the Osceola Gr......
  • Diecidue v. State, No. 30913
    • United States
    • United States State Supreme Court of Florida
    • May 24, 1961
    ...appeal, but it is here on a petition for certiorari on the theory of a conflict in decisions. In Nielsen v. City of Sarasota, 1960 Fla., 117 So.2d 731, this Court explained that generally conflicts, which justify our taking jurisdiction on petitions for certiorari, arise where the District ......
  • King v. State, No. 31623
    • United States
    • United States State Supreme Court of Florida
    • July 11, 1962
    ...808; Lake v. Lake, Fla., 103 So.2d 639; Florida Power and Light Co. v. Bell, Fla., 113 So.2d 697; Nielsen v. City of Sarasota, Fla., 117 So.2d 731. As I analyze the opinion of the majority it practically directs the District Court of Appeal to direct the Circuit Court to reverse the judgmen......
  • Wallace v. Dean, No. SC08-149.
    • United States
    • United States State Supreme Court of Florida
    • January 29, 2009
    ...and Padgett v. Sch. Bd. of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981)). As we explained long ago in Nielsen v. City of Sarasota, 117 So.2d 731, 734 (Fla.1960), and subsequently reaffirmed following the 1980 amendments to article V of the Florida Constitution,3 there are two principl......
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106 cases
  • Frankel v. City of Miami Beach, No. 45932
    • United States
    • Florida Supreme Court
    • September 23, 1976
    ...which conflicted with the rule this Court formulated in Osceola Groves v. Wiley, 78 So.2d 700 (Fla.1955) and Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). Moreover, the Third District in deciding Frankel and the above cases created a conflict by purportedly accepting the Osceola Gr......
  • Diecidue v. State, No. 30913
    • United States
    • United States State Supreme Court of Florida
    • May 24, 1961
    ...appeal, but it is here on a petition for certiorari on the theory of a conflict in decisions. In Nielsen v. City of Sarasota, 1960 Fla., 117 So.2d 731, this Court explained that generally conflicts, which justify our taking jurisdiction on petitions for certiorari, arise where the District ......
  • King v. State, No. 31623
    • United States
    • United States State Supreme Court of Florida
    • July 11, 1962
    ...808; Lake v. Lake, Fla., 103 So.2d 639; Florida Power and Light Co. v. Bell, Fla., 113 So.2d 697; Nielsen v. City of Sarasota, Fla., 117 So.2d 731. As I analyze the opinion of the majority it practically directs the District Court of Appeal to direct the Circuit Court to reverse the judgmen......
  • Wallace v. Dean, No. SC08-149.
    • United States
    • United States State Supreme Court of Florida
    • January 29, 2009
    ...and Padgett v. Sch. Bd. of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981)). As we explained long ago in Nielsen v. City of Sarasota, 117 So.2d 731, 734 (Fla.1960), and subsequently reaffirmed following the 1980 amendments to article V of the Florida Constitution,3 there are two principl......
  • Request a trial to view additional results

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