Summary
reversing a grant of summary judgment in favor of a defendant, even though "all of the known witnesses to the accident gave testimony which in essence concluded that there was nothing that [the defendant] could do to avoid a collision with a phantom automobile that ran a stop sign and pulled out in front of him"
Summary of this case from Miller v. ComeryOpinion
No. 85-2303.
September 17, 1986. Rehearing Denied October 31, 1986.
Appeal from the Circuit Court, Broward County, Robert Lance Andrews, J.
John M. Camillo of Morgaman Camillo, Fort Lauderdale, for appellants.
L. Kenneth Barnett and Susan M. Utkus of Barnett Clark, P.A., Fort Lauderdale, for appellee Henri C. Janneau.
We reverse the summary final judgment entered in this automobile negligence action in favor of one of the defendant drivers, Henri C. Janneau. In doing so we acknowledge that all of the known witnesses to the accident gave testimony which in essence concluded that there was nothing that Janneau could do to avoid a collision with a phantom automobile that ran a stop sign and pulled out in front of him. The appellants, codefendants in the action, are the owner and driver of a vehicle which struck the plaintiffs' vehicle in the rear, after the plaintiffs' vehicle had come to a stop in order to avoid colliding with the phantom vehicle and Janneau's vehicle. Notwithstanding the opinions expressed by the witnesses, we believe issues remain as to the reasonableness of the speed of Janneau under the wet conditions prevailing and his actions in attempting to avoid the collision. We are especially concerned that the trier of fact have the opportunity to evaluate the actions of all of the drivers involved in attempting to determine how this accident took place and assessing responsibility. We also acknowledge the standing of the appellants to bring this appeal but reject their contention of harmful error in the trial court's limitation of their argument at the summary judgment hearing. See Holton v. H.J. Wilson Co., 482 So.2d 341 (Fla. 1986).
ANSTEAD and DELL, JJ., concur.
LETTS, J., dissents without opinion.