Orlando v. FEI Hollywood, Inc., 4D03-3241.
Citation | 898 So.2d 167 |
Decision Date | 09 March 2005 |
Docket Number | No. 4D03-3241.,4D03-3241. |
Parties | John ORLANDO, Appellant, v. FEI HOLLYWOOD, INC., a Florida corporation d/b/a Club Body Tech and Eva Orlando, his wife, Appellees. |
Court | Court of Appeal of Florida (US) |
Keith A. Schafer of Chikovsky, Ben & Schafer, Hollywood, for appellant.
John H. Richards and Warren B. Kwavnick of Cooney, Mattson, Lance, Blackburn, Richards & O'Connor, P.A., Fort Lauderdale, for Appellee-FEI Hollywood, Inc.
This is an appeal from a final summary judgment for the defendant in a personal injury case. Plaintiff/appellant, John Orlando, alleged he was physically injured at defendant's gym when the patron next to him threw dumb bells to the floor. He alleged the resulting loud noise and the person's close proximity to him caused him to turn so suddenly to see if the weights were going to hit his feet (they did not) that his back "popped" and he fell, injuring himself. Orlando contended the gym was negligent by not providing adequate "maintenance, supervision and training for the safety of its patrons" and "negligently fail[ing] to instruct and/or train its patrons in the proper procedures to be utilized in working out with and in setting down the dumb bells."
The trial court granted the motion on the sole ground that a written release of liability appears in the membership contract Orlando signed. Orlando correctly argues the release is ambiguous and summary judgment should not have been entered on this ground. We affirm, nevertheless, based on the gym's alternative argument that on the undisputed facts, the gym did not breach any duty owed him.1
The standard of review for the entry of summary judgment is de novo. M.S. v. Nova Southeastern Univ. Inc., 881 So.2d 614, 617 (Fla. 4th DCA 2004). A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact, and the court must draw every possible inference in favor of the non-moving party. If the evidence raises any issue of material fact, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it. Id.
Kolosky v. Winn Dixie Stores, Inc., 472 So.2d 891, 894 (Fla. 4th DCA 1985).
In Warner and Kolosky, the plaintiffs were negligently injured by another. In such cases, the requisite knowledge on the part of the defendant/business operator concerned the risk posed by the particular tortfeasor. E.g., Heps v. Burdine's Inc., 69 So.2d 340 (Fla.1954); Warner, supra; Kolosky, supra; Cunningham v. City of Dania, 771 So.2d 12, 16 (Fla. 4th DCA 2000); Dennis v. City of Tampa, 581 So.2d 1345, 1350 n. 4 (Fla. 2d DCA 1991).
In cases where the injury resulted from a criminal or intentional act, the defendant's knowledge of past incidents at the premises by other persons in general may be sufficient. E.g., Hall v. Billy Jack's, Inc., 458 So.2d 760 (Fla.1984); Allen v. Babrab, Inc., 438 So.2d 356 (Fla.1983); Stevens v. Jefferson, 436 So.2d 33 (Fla.1983); Foster v. Po Folks, Inc., 674 So.2d 843, 844-45 (Fla. 5th DCA 1996); Dennis; Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla. 4th DCA), dismissed, 589 So.2d 291 (Fla.1991), disapproved on other grounds, Angrand v. Key, 657 So.2d 1146 (Fla.1995).
Here, regardless whether the other patron acted carelessly or intentionally, Orlando failed to allege the gym knew or should have known the other patron posed a risk or there was ever a problem at the gym with anyone handling free weights.
Orlando fares no better if his complaint is...
To continue reading
Request your trial-
Rivers v. Hertz Corp.
...verified the signature thereon with the signature of such person written in his or her presence. 2.See also Orlando v. FEI Hollywood, Inc., 898 So.2d 167, 169 (Fla. 4th DCA 2005) (concluding that because the plaintiff failed to establish that the defendant knew or should have known a third ......
-
Naso v. Hall
...judgment required a moving party to "show conclusively the absence of any genuine issue of material fact." Orlando v. FEI Hollywood, Inc. , 898 So. 2d 167, 168 (Fla. 4th DCA 2005). However, the Florida Supreme Court recently issued an amendment to the Florida summary judgment rule to match ......
-
Seven Kings Holdings, Inc. v. Marina Grande Riviera Beach Condo. Ass'n
... ... Orlando v. FEI Hollywood, Inc., 898 So.2d 167, 168 ... (Fla. 4th DCA 2005). Summary judgment is ... ...
-
Colombo v. Robertson, Anschutz & Schneid, P.L.
...in that case under section 57.105(7)."The standard of review for the entry of summary judgment is de novo ." Orlando v. FEI Hollywood, Inc. , 898 So. 2d 167, 168 (Fla. 4th DCA 2005). "Likewise, a trial court's interpretation of the language of a contract or statute is reviewed de novo." Hig......