Patty v. Food Fair Stores of Fla., Inc.

• Decision Date: 08 April 1958
• Docket Number: No. 58-90,58-90
• Citation: 101 So.2d 881
• Parties: Angelina PATTY, Appellant, v. FOOD FAIR STORES OF FLORIDA, Inc., Appellee.
• Court: Florida District Court of Appeals

Page 881

101 So.2d 881

Angelina PATTY, Appellant, v. FOOD FAIR STORES OF FLORIDA, Inc., Appellee.

No. 58-90.

District Court of Appeal of Florida, Third District.

April 8, 1958.

Rehearing Denied May 5, 1958.

Glynn O. Rasco, Miami, Lloyd G. Bates, Jr., and Louis Vernell, Miami Beach, for appellant.

Brown, Dean, Adams & Fischer and W. Thomas Spencer, Miami, for appellee.

HORTON, Judge.

Summary judgment was entered below against the appellant based upon the pleadings and appellant's deposition taken by the appellee. The court in granting summary judgment noted the failure of the appellant to submit affidavits in her behalf.

The facts are relatively simple and few. The appellant was in appellee's food store purchasing groceries and, upon approaching the fresh vegetable counter to make a selection, slipped on a green bean or beans in the aisle and fell to the floor sustaining injuries. The appellant charges that the appellee 'careleesly and negligently left several beans on the floor of said premises located in an aisle in said store, which said aisle was then and there provided by the defendant for the passage of customers'. The appellee denied the charge of negligence and affirmatively alleged contributory negligence on the part of the appellant. A motion to dismiss for failure to state a cause of action was coupled with the appellee's answer. This motion was denied by the court below.

The main question is whether the court below erred in entering summary judgment.

In entering the summary judgment, the trial court had before it the complaint, the answer and the deposition of the appellant taken by the appellee. Rule 1.36(c), Florida Rules of Civil Procedure, 30 F.S.A., provides:

'The judgment or decree sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law * * *.' (Italics supplied.)

As the rule would indicate, its purpose is to eliminate and terminate litigation when no view taken of the pleadings and depositions would justify or support a judgment favorable to the party moved against. It is contended by appellee that every material issue of fact necessary to appellant's recovery has been foreclosed by her deposition, and particularly that portion which indicated that the appellant was not looking at the floor in the area in which she slipped. Further, that if additional facts existed the appellant did not come forward with these facts at the time of the hearing on the motion for summary judgment and should by reason thereof be precluded from complaining of the entry of a judgment against her.

The judgment under review requires only the consideration of that evidence most favorable to the party against whom the judgment was rendered, resolving in her favor all reasonable inferences that may be drawn from the evidence before the court below. In 6 Moore's Federal Practice, 2d Ed., Para. 56.15(3), pp. 2124-2125, it was said:

'Since it is not the function of the trial court to adjudicate genuine factual issues at the hearing on the motion for summary judgment, in ruling on the motion all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion.'

When considering a motion for summary judgment, it is the function of the trial court to ascertain if there exists a genuine issue of material fact rather than to adjudicate the probative weight of the evidence as it pertains to disputed facts. Cf. Navison v. Winn & Lovett Tampa, Inc., Fla.1957, 92 So.2d 531. In...