Opinion
Nos. 71-439, 71-555.
March 7, 1972. Rehearing Denied March 29, 1972.
Appeal from the Circuit Court for Dade County, Shelby Highsmith, J.
Milton Kelner, Miami, for appellant.
Wicker, Smith, Pyszka, Blomqvist Davant, Knight, Peters, Hoeveler, Pickle, Niemoeller Flynn, Miami, for appellees.
Before BARKDULL, C.J. and CHARLES CARROLL and HENDRY, JJ.
Appellant, who was the plaintiff below, seeks reversal of a summary judgment entered for defendants. Appellant filed an action for damages for personal injury to herself, and for damages for wrongful death of her husband, and under the survival act in her capacity as administratrix. Upon the pleadings, deposition evidence, affidavits and answers to interrogatories the trial court granted summary judgment for the defendants, upon holding there were no genuine issues as to any material fact and that the defendants were entitled to judgment as a matter of law. With that finding and conclusion of the trial court we cannot agree. The defendants did not carry their burden to show conclusively the absence of genuine issue of material fact. Holl v. Talcott, Fla. 1966, 191 So.2d 40, 43, and opinion on rehearing at pp. 47-48. The record discloses a number of material issues of fact bearing on questions as to liability and causation which could not properly be disposed of upon hearing on motion for summary judgment, including an issue as to whether the gas supplied had been treated to give off an identifying or warning odor as required.
Judgment reversed and cause remanded for further proceedings.