Opinion
No. 73-591.
March 12, 1974.
Appeal from the Circuit Court, Dade County, David Popper, J.
Jerry Larotonda, Miami, for appellants.
Adams, George, Wood, Schulte Thompson and David L. Willing, Miami, for appellee.
Before BARKDULL, C.J., and PEARSON and CARROLL, JJ.
In this action for damages for personal injury received by the plaintiff-appellant Fabiola Claudio, in which plaintiffs alleged negligence and the defendant pleaded contributory negligence, the court granted summary judgment in favor of the defendant and the plaintiffs appealed.
The evidence before the court at the hearing on the motion for summary judgment, which was a discovery deposition of the injured plaintiff, did not show conclusively that genuine issues of material fact did not exist. The deposition testimony did not conclusively establish the absence of negligence but tended to support the allegation thereof, and it did not establish that the injured plaintiff was guilty of contributory negligence as a matter of law. See Holl v. Talcott, Fla. 1966, 191 So.2d 40.
The summary judgment is reversed, and the cause is remanded for further proceedings. See Hoffman v. Jones, Fla. 1973, 280 So.2d 431; Butler v. Woolco Department Store, Fla.App. 1973, 284 So.2d 434.