Opinion
No. 87-1274.
May 3, 1988.
Appeal from the Circuit Court, Dade County, Joseph P. Farina, J.
Horton, Perse Ginsberg and Mallory H. Horton, Miami, for appellant.
Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham Lane and Shelley H. Leinicke, Ft. Lauderdale, for appellees.
Before BARKDULL, HENDRY and FERGUSON, JJ.
Pamela Moss appeals from an order granting summary final judgment and a directed verdict in favor of Ten Associates d/b/a West Club Apartments, of which William Gautier was trustee and receiver.
While walking back to her apartment after a swim, appellant was severely injured when the 300 pound chimney stack of a barbeque pit fell on her. The pit was one of several provided by the property owners for their tenants' use and enjoyment. Although giving the appearance of sturdy construction when fully intact, each pit's chimney stack was held to its base largely by gravity and a light exterior coating of mortar. Because there are genuine issues of fact to be determined regarding the proximate cause of Moss's injuries and whether Ten Associates failed in the duty owed Moss, the trial court erred in granting summary final judgment. Stahl v. Metropolitan Dade Co., 438 So.2d 14 (Fla. 3d DCA 1983); Leib v. City of Tampa, 326 So.2d 52 (Fla. 2d DCA 1976).
Further, William Gautier as trustee and receiver of West Club Apartments was a properly joined party to this action. By filing a motion to dismiss the appellant's amended complaint, the receiver effectively waived his traditionally privileged position and gave the court jurisdiction over him. Ortell v. Ortell, 91 Fla. 50, 107 So. 442 (1926); Colburn v. Highland Realty Co., 153 So.2d 731 (Fla. 2d DCA 1963). Thus, the trial court erred in granting the defendants' motion for a directed verdict.
Accordingly, we reverse the summary final judgment and directed verdict and remand for proceedings consistent with this opinion.
Reversed and remanded.