Opinion
No. 94-2009.
July 5, 1995.
Appeal from the Circuit Court for Broward County; W. Herbert Moriarty, Judge.
David F. Cooney, Bruce M. Trybus, Pamela R. Kittrell of Cooney, Haliczer, Mattson, Lance, Blackburn, Pettis Richards, P.A., Fort Lauderdale, for appellants.
Norman Malinski of Norman Malinski, P.A., Aventura, for appellee.
AFFIRMED.
DELL, J., and RIVKIND, LEONARD, Associate Judge, concur.
GUNTHER, C.J., dissents with opinion.
I respectfully dissent.
It appears from the record that an issue of genuine fact exists regarding whether the defect in the construction of the roadway was patent or latent. Indemnity Insurance Company of North America filed the affidavit of a civil engineer with a specialty in traffic engineering in opposition to the motion for summary judgment. The expert opined that "[T]he defects in the design of the ramp may not have been apparent at the time that the ramp was accepted by the State of Florida, Department of Transportation."
As this court noted in Tretten v. Irrgang, 654 So.2d 1297 (Fla. 4th DCA 1995), citing Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995), "if the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied." Thus, although Mr. Moore did not unequivocally state that the defects were not apparent, his statement was sufficient to raise a doubt that an issue might exist and summary judgment should have been denied.