Opinion
No. 66-1056.
October 3, 1967. Rehearing Denied October 31, 1967.
Appeal from the Circuit Court, Dade County, George E. Schulz, J.
Podhurst Orseck, Miami, for appellants.
West Goldman, Frates, Fay, Floyd Pearson and Larry Stewart, Miami, for appellee.
Before CHARLES CARROLL, C.J., and BARKDULL and SWANN, JJ.
This is an appeal by the plaintiffs below from an adverse summary judgment. The action was by the appellant Doris K. Coburn for damages for personal injuries suffered by her in a fall on the premises of a hotel owned and operated by the appellee. She was joined in the action by her husband who sought derivative damages.
The plaintiff Doris Coburn alleged that while a guest of the hotel she fell on a shuffleboard court on the pool deck while proceeding to a nearby telephone after being paged. It was alleged that the shuffleboard court was raised 3 7/8 inches above the pool deck level and was substantially the same brownish color as the pool deck. Plaintiffs charged defendant with negligence by maintaining the premises in an unsafe condition and alleged the condition was such as to constitute a trap.
The defendant denied negligence and pleaded contributory negligence. Following discovery depositions the trial court granted the defendant's motion for summary judgment. We find error, and reverse on the authority of Miceli v. Lifter, Fla.App. 1964, 161 So.2d 253. The pleadings and the evidence which was before the court presented triable issues of negligence and contributory negligence which could not properly be resolved on motion for summary judgment.
Reversed.