Pate v. Gilmore, 93-3332
| Decision Date | 16 November 1994 |
| Docket Number | No. 93-3332,93-3332 |
| Citation | 647 So.2d 235 |
| Parties | 19 Fla. L. Weekly D2419 James Olen PATE, Appellant, v. Rich GILMORE, Appellee. |
| Court | Florida District Court of Appeals |
Raymond L. Syfrett, Panama City, for appellant.
John M. Fite of Barron, Redding, Hughes, Fite, Bassett & Fensom, P.A., Panama City, for appellee.
The appellant, James Olen Pate, seeks reversal of a summary judgment entered against him in his negligence suit filed against the appellee, Rich Gilmore, for damages resulting when Gilmore's horse wandered onto a public roadway. Finding that summary judgment was improperly granted, we reverse and remand for further proceedings below.
Rich Gilmore owned and boarded several horses in Bay County in September 1988. Tending to those horses on a daily basis was a young woman, Kimberly Rolan, who was permitted to board her horse without charge in return for her services as a stable hand. On September 27, 1988, one of the horses owned by Gilmore escaped through an open gate and made its way to a public roadway. Pate was travelling down that roadway and struck the horse allegedly causing injury to Pate and damage to his vehicle. Pate subsequently filed a negligence suit against Gilmore, as indicated, and Gilmore moved for summary judgment arguing that the stable hand worked as an independent contractor, and so any negligence on her part could not be the basis for assessment of liability against Gilmore. Gilmore also argued that Rolan was not herself negligent, since it was a delivery man who left the gate open, and Gilmore argued that there was no negligence alleged on his part individually which could serve as the basis for liability.
Following a hearing, the lower court granted the motion for summary judgment finding that Rolan was an independent contractor and not an employee of Pate. Finding Rolan to have worked as an independent contractor, the lower court therefore concluded that liability on the part of appellee was not possible under the theory of respondeat superior. The lower court further found that the facts of record, as established, did not support the allegation that Rolan herself was negligent, since the lower court accepted the deposition testimony of Rolan that it was the actions of the delivery man in leaving the gate open which allowed the horse to escape. Noting there is no strict liability under Florida law for injury caused by livestock, the lower court therefore concluded that there was no basis in the complaint for a finding of liability on the part of Rich Gilmore.
There is abundant authority indicating that summary judgment is proper only when there is no genuine issue of material fact and when the law favors the movant for summary judgment. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). Generally speaking, questions of negligence are answerable by a jury, Clark v. Lumbermans Mutual Insurance Co., 465 So.2d 552 (Fla. 1st DCA), rev. denied, ...
To continue reading
Request your trial
-
Carlson v. FedEx Ground Package Sys., Inc.
...an employer/employee relationship is generally a question of fact, and therefore a question for the trier of fact.” Pate v. Gilmore, 647 So.2d 235, 236 (Fla. 1st DCA 1994). Accord Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003) (“The existence of an agency relat......
-
Harper ex rel. Daley v. Toler
...an employer/employee relationship is generally a question of fact, and therefore a question for the trier of fact." Pate v. Gilmore, 647 So.2d 235, 236 (Fla. 1st DCA 1994); see also Villazon, 843 So.2d at 853 ("The existence of an agency relationship is normally one for the trier of fact to......
-
Southern-Owners Ins. Co. v. Galati Yacht Sales, LLC
... ... existence of an employer-employee relationship); Pate v ... Gilmore , 647 So.2d 235, 236 (Fla. 1st DCA 1994) ... (reversing summary judgment ... ...
-
Davis v. Chips Exp., Inc., 94-4342
...be exercised in the grant of summary judgment in negligence or malpractice actions. Moore v. Morris, 475 So.2d at 668; Pate v. Gilmore, 647 So.2d 235 (Fla. 1st DCA 1994); Johnson, 634 So.2d at 1113; Sharpe v. Howell, 629 So.2d 314 (Fla. 1st DCA 1993), review denied, 641 So.2d 1346 (Fla.1994......