Zygmont v. Smith
| Decision Date | 20 September 1989 |
| Docket Number | No. 88-2713,88-2713 |
| Parties | Lois E. ZYGMONT, Appellant, v. L. Alan SMITH and Lavone Smith, his wife, Appellees. |
| Court | Florida District Court of Appeals |
Joy A. Lordahl, Jacksonville, for appellant.
Harris Brown and Reginald Luster of Mathews, Osborne, McNatt & Cobb, Jacksonville, for appellees.
This is an appeal from a summary judgment rendered against appellant in her negligence suit. We reverse.
The appellees employed the appellant as a domestic worker in their home for approximately one year when the appellant slipped while walking across a section of hardwood flooring. Appellant's hip was broken by the fall, and she subsequently filed suit alleging the appellees failed to keep their premises in a reasonably safe condition. More specifically, the appellant alleged that the appellees negligently treated their floors with a compound so as to render them unreasonably slippery, that the appellees negligently failed to correct the condition, and that they failed to warn the appellant.
The appellees raised several affirmative defenses and moved for summary judgment arguing that the undisputed facts demonstrated that, as a matter of law, the appellees were not negligent. Following a hearing on the motion, the trial court granted summary judgment in favor of the appellees finding that the "uncontroverted evidence is that there was no foreign substance on the floor" ... and "there is no evidence that the [appellant's] fall was caused by any condition in or on the floor itself." The trial court further found that no one else had ever fallen where the appellant slipped, so the appellant's fall "was therefore unexplained and not the product of any negligence on the part of the [appellees]."
On appeal, appellant argues that summary judgment was improper as an issue of fact remains concerning the presence of wax or some other compound on the floor. The record shows that during deposition and in a sworn affidavit, the appellant stated that several weeks before her fall, a waxing machine as well as cans of wax and sealer were stored in the appellees' garage. On her return to work following a weekend off, the equipment was gone and the floor was more slippery than usual. Appellant further averred that shortly after the removal of the waxing equipment, she slipped and injured her foot. According to her affidavit, appellant stated she told appellee, Mrs. Smith, that she had slipped and that something needed to be done about the slippery and uneven floor.
The appellees, on the other hand, testified in their respective depositions that the floor was not slippery and that polyurethane, not wax, was occasionally applied to the floors. Appellee, Mrs. Smith, specifically denied using the machinery described by the appellant, though she admitted that appellant had mentioned her previous fall.
Given this testimony, there appears to be a dispute as to whether the floor was slippery at the time of the appellant's fall. While the floor may not have been recently waxed, it may be so inferred given the appellant's sworn testimony. It is well established that reasonable inferences should be resolved against a movant for summary judgment. Moore v. Morris, 475 So.2d 666 (Fla.1985). See also, Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). Even if the floors were not treated with wax, there is evidence in the record to show that they could have been unusually slippery for some other reason. The appellees have not shown, as they must, that the party against whom a summary judgment is sought cannot prevail. Multitech Corp. v. St. Johns Bluff Investment Corp., 518 So.2d 427 (Fla. 1st DCA 1988), and Wills, supra.
The cases cited by the appellees are not controlling. In Partelow v. Edgar, 219 So.2d 72 (Fla. 4th DCA 1969), the court affirmed a directed verdict in favor of a defendant store owner in an action brought by a customer who had slipped and fallen. The trial court directed a verdict because the plaintiff had failed to show a breach of duty inasmuch as there was no proof that the floor was negligently maintained. Similarly, in Harvey v. Bryant, 238 So.2d 462 (Fla. 1st DCA 1970), this court affirmed a directed verdict in a slip and fall case where there was no evidence that the defendant homeowner had knowledge of a dangerous condition created by a throw rug...
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