Nielsen v. City of Sarasota, 30

Decision Date03 February 1960
Docket NumberNo. 30,A,30
Citation117 So.2d 731
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.
CourtFlorida Supreme Court

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 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, Fla.1954, 73 So.2d 403; Byers v. Gunn, Fla.1955, 81 So.2d 723; Tucker Brothers, Inc. v. Menard, supra; Pritchard v. Peppercorn & Peppercorn, Inc., Fla., 96 So.2d 769. Also see Commercial Credit Corporation v. Varn, Fla.App.1959, 108 So.2d 638 and Majeske v. Palm Beach Kennel Club, Fla.App.1959, 117 So.2d 531.

The sum of all of these opinions is that in a civil case, a fact may be established by circumstantial evidence as effectively and as conclusively as it may be proved by direct positive evidence. The limitation on the rule simply is that if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.

The well-known criminal rule permits proof of guilt by circumstantial evidence provided the circumstantial evidence points to guilt to the exclusion of every reasonable hypothesis of innocence. Subject to the above limitation the rule in civil cases is that a fact may be proved by circumstantial evidence if the inference of the fact preponderates over other inferences. Such was the rule of Tucker Brothers, Inc. v. Menard, supra.

We must now decide whether the decision of the Court of Appeal comes into collision with this rule.

Upon a mere casual examination it might appear that the decision here under review states a rule to the effect that proximate cause cannot be established by circumstantial evidence. A cautious analysis of the opinion, however, leads us to the conclusion that such was not the rule announced by the Court of Appeal. If it had been then the decision below would collide with our decision in Tucker Brothers, Inc. v. Menard, supra. This is so because we there held that an ultimate fact, such as proximate cause, may in a proper case be established by circumstantial evidence.

In the instant case the Court of Appeal, as we read its opinion, merely held that on the basis of the record before it there was a total absence of evidence, either direct or circumstantial, to support a conclusion that the alleged negligence of the respondents was the proximate cause of the injury to Kenneth Nielsen. In so holding, the rule of the decision below does not come into...

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108 cases
  • Frankel v. City of Miami Beach
    • United States
    • Florida Supreme Court
    • September 23, 1976
    ...of law 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 Osc......
  • King v. State
    • United States
    • Florida Supreme Court
    • July 11, 1962
    ...Fla., 101 So.2d 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 rev......
  • Wallace v. Dean
    • United States
    • Florida Supreme Court
    • January 29, 2009
    ...1986), 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 p......
  • Diecidue v. State, 30913
    • United States
    • Florida Supreme Court
    • May 24, 1961
    ...were before us on 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 w......
  • Request a trial to view additional results
2 books & journal articles
  • Appellate motions for rehearing: when is enough really enough?
    • United States
    • Florida Bar Journal Vol. 73 No. 4, April 1999
    • April 1, 1999
    ...conflict jurisdiction.[39] The clearest and most quoted articulation of the conflict test was set forth in Nielson v. City of Sarasota, 117 So. 2d 731, 734 (Fla. (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court; or (2) the application of a......
  • Taking the pathway of discretionary review toward Florida's highest court.
    • United States
    • Florida Bar Journal Vol. 83 No. 10, November 2009
    • November 1, 2009
    ...at 513-515 (2005). (38) Id. at 516-517. (39) Wallace v. Dean, 3 So. 3d 1035, 1039 n.4 (Fla. 2009) (citing, Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. (40) Anstead, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 517-518 (2005). (41) Wallace, 3 ......

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