Wolford v. Ostenbridge, 2D03-274.
| Decision Date | 03 October 2003 |
| Docket Number | No. 2D03-274.,2D03-274. |
| Citation | 861 So.2d 455 |
| Parties | Marjorie WOLFORD and Frederick Wolford, Appellants, v. Ronald Van OSTENBRIDGE and Jackie Van Ostenbridge, Appellees. |
| Court | Florida District Court of Appeals |
William E. Ruffier of Dellecker Wilson & King, P.A., Orlando, for Appellants.
W. Scott Hamilton and James L. Price of Whitaker & Hamilton, P.A., Bradenton, for Appellees.
Marjorie and Frederick Wolford challenge the trial court's summary final judgment entered in favor of Ronald and Jackie Van Ostenbridge in a premises liability action. We reverse because we conclude that a genuine issue of material fact remains.
These proceedings arose when Marjorie Wolford, who was sitting on a swing on the Van Ostenbridges' front porch, was injured when the swing suddenly fell. The Wolfords filed a two-count complaint, alleging in count one that the Van Ostenbridges, as property owners, breached the duty they owed to Marjorie Wolford as an invitee by negligently installing the porch swing that caused her injuries. Count two contained Frederick Wolford's loss of consortium claim.
The Van Ostenbridges filed a motion for summary judgment alleging that there was no proof either that they had failed to maintain their premises in a reasonable manner or that they had notice of the dangerous condition. In opposition, the Wolfords filed the affidavit of a general contractor, who after reviewing Jackie Wolford's deposition and pictures of the swing and the porch area, opined that the swing fell because it had been improperly installed. Specifically, the affidavit concluded that the screws used to hang the swing were too small, that the screws were improperly placed in the beam, and that the swing should have been supported with bolts and nuts rather than screws. In addition to the affidavit, the court also had before it the deposition testimony of the same general contractor.
Based on the record before it, the trial court granted the motion for summary judgment in favor of the property owners. The trial court found that there was no evidence in the record to establish that the swing was negligently installed or that the swing fell due to negligent installation. The Wolfords moved for rehearing, arguing that the court had failed to consider the affidavit and deposition of their expert witness. The trial court denied the motion for rehearing, stating that while it had considered the pleadings, depositions, and affidavits, it gave "no weight" to the affidavit or the testimony of the Wolfords' expert. The Wolfords now challenge the final summary judgment entered pursuant to these rulings.
A property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition;...
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