Alvarez v. Florida Power & Light Co.

260 So. 2d 546 | Fla. Dist. Ct. App. | 1972

PER CURIAM.

This appeal is by the plaintiff below from a summary judgment for the defendant. The action was for damages for personal injuries sustained by the plaintiff upon coming in contact with an electrical wire or line maintained by the defendant-appel-lee. Following extensive discovery the defendant moved for and was granted a summary judgment. Having considered the record and briefs we hold it was error to grant the summary judgment. Upon examination of the pleadings and the evidence that was before the trial court on the motion for summary judgment we are impelled to conclude there were triable issues relating to negligence and contributory negligence which properly could not be resolved on summary judgment. See Holl v. Talcott, Fla.1966, 191 So.2d 40. We repeat, as applicable to this case, the pronouncement of the Supreme Court in an opinion authored by Justice Drew in Williams v. City of Lake City, Fla.1953, 62 So.2d 732, viz:

“The right to a jury trial is a very sacred part of our system of jurisprudence and, while we have held that the granting of a summary judgment does not infringe upon such constitutional right, that very holding carries with it the idea that such judgments should be sparingly granted and only in those cases where there remains no genuine issue of any material fact. To put it another way, such motion should be granted only where the moving party is entitled to a judgment as a matter of law. It was never intended by this rule that cases should be tried by affidavit or that affidavits, interrogatories or depositions or similar evidence, could be used as substitutes for a jury trial. To sum it all up, if there are issues of fact and the slightest doubt remains, a summary judgment cannot be granted.” Accordingly the summary judgment appealed from is reversed, and the cause is remanded for further proceedings.