Gomez v. Lowell Dunn Co.

221 So. 2d 800 | Fla. Dist. Ct. App. | 1969

PER CURIAM.

This is an appeal by the plaintiff below from a summary judgment entered in favor of the defendant, in an action for damages brought under the wrongful death act (§§ 768.01 and 768.02 Fla.Stat., F.S.A.) and survival statute (§ 46.021 Fla.Stat., F.S.A.), alleging negligence of the defendant caused the death of the appellant’s husband.

The plaintiff’s decedent was in the status of an invitee. In McNulty v. Hurley, Fla.1957, 97 So.2d 185, 187, the Supreme Court said: “The owner or occupant owes an invitee the duty of keeping the premises in a reasonably safe condition, and, as plaintiff contends, also to guard against subjecting such person to dangers of which the owner or occupant is cognizant or might reasonably have foreseen.”

The invitee was driving a loaded dump truck, hauling material incident to certain excavation and property development business of the defendant. He was using the most convenient of several roadways maintained and utilized by defendant for its purposes over lands owned by another. The loaded truck weighed over 50,000 pounds. There were depressions in the road, avoidance of which could be made by driving to one side. It was alleged the road edge along a bordering waterway was insecure and dangerous, for protection against which there was no barrier or warning, and that it gave way resulting in the accident in which the decedent met his death by drowning in the adjacent water. } & 1

In our opinion the evidence and inferences reasonably to be drawn therefrom favorable to the plaintiff, before the trial court on defendant’s motion for summary judgment, disclosed evidentiary conflict on material issues relating to negligence, contributory negligence and proximate cause, that were properly for a jury’s determination rather than for summary disposition on motion. As the cause is being remanded for trial, we omit a further or detailed comment on the facts or evidence shown.

Reversed.