Locke ex rel. Locke v. Bank of Washington County 501 So. 2d 1349

BARFIELD, Judge.

Appellants, plaintiffs in the trial court, appeal from a summary judgment granted appellees. Michael Locke broke his neck in a diving accident at a bank sponsored employees picnic and sued the bank and the property owners for failing to maintain a safe place for swimmers and failing to warn him of submerged objects in the lake. The facts which must be accepted as true for purposes of a motion for summary judgment, and the reasonable inferences therefrom considered in the light most favorable to the plaintiffs, raise disputed issues of material fact which preclude dispo: sition of this case by summary judgment. We therefore reverse..

Considering the facts and the reasonable inferences to be drawn therefrom in the light most favorable to the plaintiffs, the party resisting the motion for summary judgment, we reach the following scenario. Bank of Washington County organized a picnic for its employees and their families at the Crystal Lake property of C.J. and Leola Porter on June 11, 1983. Mr. Porter was a director of the bank and had permitted the employees to use his lake property at least once before. Swimming and water skiing were expected functions at the picnic.

Michael Locke was one of the invited guests at the outing. He arrived at approximately 10:30 in the morning. He ran down the right side of the property to the beach, where he left his sunglasses, jersey and hat. To his right, at an unspecified distance, but closer to Mr. Porter’s property than the next house to the right, was a floating dock partially beached. Michael thought about pushing it out into the water and diving from it but decided to get wet first. The dock was anchored by means of *1350a line connected to a five gallon bucket of concrete on the lake bottom.

The record does not disclose the location of the dock anchor at the time Michael entered the water, but it is reasonable to infer that it was in shallow water ahead of Michael on a sufficient length of line to allow the dock to pivot to the beach and that the dock could float freely over or around the anchor. Michael ran a short distance into the water, dove forward, and struck his head, thereby breaking his neck. The dock was later moved into deeper water, either by pivoting on the anchor line or by actually moving the anchor to deeper water. Expert testimony indicates that Michael's injury is consistent with striking a submerged object rising from the bottom of the lake and inconsistent with striking the gently sloping lake bottom. It is reasonable to infer that Michael struck the dock anchor.

The inferences logically drawn in the above factual scenario defeat the defendants’ motion for summary judgment. The disposition of the motion for summary judgment is not governed by the trial judge’s opinion of the likelihood that a jury will believe the evidence presented by the plaintiffs, or the likelihood that a jury will draw the reasonable inferences from that evidence which would support a verdict in favor of the plaintiffs. Neither may the disposition be governed by the fact that there is presented evidence which conflicts with or negates the scenario. The burden is on the defendants to conclusively show the nonexistence of genuine issues of material fact, and that under the uncontroverted facts the plaintiffs cannot prevail.

The trial judge’s observation that plaintiffs’ case is based on “conjecture” and “guess work” is an impermissible weighing of the evidence, and not a determination that, resolving all facts and inferences against the defendants, there exist no genuine issues of material fact and defendants are entitled to judgment in their favor as a matter of law. Where, as here, a triable issue is presented, it is error to preclude its consideration by a jury.

The summary judgment of the trial court is REVERSED.

WENTWORTH, J., concurs.

SMITH, J., concurs specially with written opinion.

SMITH, Judge,

specially concurring.

I agree to reverse. The test is whether the undisputed facts established by the defendants conclusively show that plaintiffs will be unable to present evidence at trial from which a jury reasonably can conclude that defendants were guilty of negligence which was a proximate cause of the accident. Defendants may do this in one of two ways: either by conclusively proving the absence of any negligence on their part proximately resulting in injury to the minor plaintiff, or by showing conclusively that the plaintiff’s own negligence was the sole proximate cause of his injury. Clark v. Lumberman’s Mutual Insurance Company, 465 So.2d 552, 554 (Fla. 1st DCA 1985).

Were this court sitting as a jury, it would be difficult to find that the greater weight of the evidence adduced thus far would support a verdict for the plaintiffs. But neither we nor the trial court are jurors, and it is not our province to weigh and consider the facts and the reasonable inferences therefrom in order to arrive at a resolution of this controversy in favor of one side or the other. This weighing process is distinctly a trial function. It may well develop at trial that the evidence will be such that the trial court may properly direct a verdict for one or both of the defendants. However, the case is not at the directed verdict stage.

In reviewing the affidavits and depositions of record, I find numerous instances of conflicts regarding the basic facts, and I find it possible to interpret the eyewitness descriptions of just what occurred in various ways. The strongest point in defendants’ favor is the absence of any direct testimony establishing the presence of a foreign object at the precise spot on the lake bottom where Michael Locke struck his head when he dived. But the evidence *1351tending to establish the nonexistence of any such object, though persuasive, is not conclusive. None of the witnesses’ affidavits or depositions established that they closely examined the exact spot to discover any object, only that they were present at the location and did not see anything, and others who looked for something in the water saw nothing. Defendants rely on the assumption by the witnesses that if any object was present on the lake bottom it would have been visible, and if visible, it would have been seen. Were we weighing the evidence as jurors in the absence of direct or circumstantial evidence pointing to the presence of any foreign object on the lake bottom, I would be inclined to agree that nothing was there except the lake bottom. On the other hand, there is testimony of at least one eyewitness that no one made any effort to examine the lake bottom at the precise location of the injury shortly after it happened. There is evidence that the property owners had placed at least two five-gallon plastic buckets filled with concrete in the swimming area for use in anchoring their boat, although it is maintained that these buckets were at a depth of some six feet of water. No one testified that they went into the water and located these buckets on the day of the accident.

The evidence is particularly vague as to the location of the floating dock in relation to the spot where the accident occurred. Michael Locke stated that the dock was at the water’s edge in very shallow water, while others place it in waist-deep or deeper water and several feet from shore. It is not disputed, however, that the dock was secured by underwater anchors. Whether the dock or its anchors were within or without the area subject to the defendants’ dominion or control, or within the area which defendants’ guests could reasonably anticipate was provided for their beach activities, is unclear. Any effort to glean from the several affidavits and depositions a precise set of measurements as to the exact spot where the accident occurred, the relative locations of known objects and water depth measurements, is in itself an exercise in weighing and estimating. The record is replete with estimates of distances expressed in contradictory terms, and often without any basis upon which these descriptions can be translated into definite units of measurement by one reading the cold record. There is evidence that the water level in this lake fluctuates, so that the relative location of objects from the water’s edge, and the depth of these objects, would necessarily vary from time to time. If we accept the engineering evidence that the lake bottom has a ten percent (10%) slope, it is obvious that this would have an appreciable effect on estimates concerning water depths and location of objects at different times. Thus, an object placed in three feet of water on one day could reasonably be expected to be some thirty feet from the water’s edge, but with a one foot drop in water level the same object on another day could be at a depth of two feet and only twenty feet from the water’s edge. There is no evidence whatever relating to whether the water level was up or down on the day in question. It appears to me that the task of reconciling the evidence in this case is one for the jury.

I would, however, reject the affidavits of Dr. Villanueva and Mr. Lawniczak filed by plaintiffs. These affidavits purport to establish, as a matter of expert opinion, that the minor plaintiffs’ injuries were caused by hitting “a foreign, man-made object.” Neither affidavit sets forth a single fact to support this conclusion, and should not be considered. Food Fair Stores v. Trusell, 131 So.2d 730 (Fla.1961). Although the trial judge in his order granting summary judgment did not specifically refer to these affidavits, I suspect that it might have prompted his observation that the affidavits of the plaintiffs “are based purely on conjecture.”