Opinion
No. 79-977.
May 13, 1981.
Appeal from the Circuit Court, Broward County, W. Clayton Johnson, J.
Robert L. Switkes of Law Offices of Norman K. Schwarz, P.A., Miami Beach, for appellant.
Linda M. Rigot of Ress, Gomez, Rosenberg Howland, P.A., North Miami, for appellees.
Plaintiff appeals from a summary judgment entered in favor of the defendant in a comparative negligence case. Since the testimony of two witnesses was in direct conflict with that of the minor plaintiff, we find that this is a classic case in which a summary judgment should not be entered. While the jury might very well choose to believe the two non-party witnesses rather than the plaintiff, this is not an appropriate case for summary judgment. The trial court necessarily chose either to disbelieve or disregard the testimony of the plaintiff/child. The summary judgment is, therefore, reversed.
BERANEK and HURLEY, JJ., concur.
HERSEY, J., concurs in result only.