Opinion
No. 94-4080.
September 5, 1995. Opinion Amending Decision on Denial of Rehearing January 4, 1996.
An appeal from the Circuit Court for Leon County. L. Ralph Smith, Judge.
Granville E. Petrie, Jr., Tallahassee, for appellant.
William A. Seacrest, Chris W. Hoeg, and Francis J. Carroll, Jr., of Boehm, Brown, Rigdon, Seacrest Fischer, P.A., Tallahassee, for appellee.
Sally Newman was killed in a motor vehicle collision while driving a 1988 Toyota pickup truck. Franklin Newman, appellant, was a passenger in the vehicle driven by his wife. As personal representative of his wife's estate, he appeals from a summary judgment entered in favor of William Herrin, appellee, in the negligence action appellant filed in connection with the motor vehicle accident. We reverse.
The fatal collision occurred in the early morning hours of January 1, 1992. Appellee was driving a jeep equipped with oversized tires and bumper, a V-8 engine, extra lights mounted on the bumpers, and KC Daylighters mounted across the top of the vehicle. At the time of the accident, appellee was traveling along a straightaway, and the vehicle driven by Mrs. Newman had just come out of a curve. Appellant's testimony reflects that as the Newman vehicle rounded the curve, the lights coming at them were so bright that they filled the whole interior of the cab with light. Appellant looked away from the light, then the vehicles collided. The Highway Patrol investigation indicates that both vehicles were traveling forty to fifty miles per hour, when the Newman vehicle crossed the centerline of the highway into the lane traveled by appellee.
Appellee acknowledged in his deposition that he had been cited for the unlawful height of his headlights. Other evidence of the jeep's unlawful headlight height appears in the deposition testimony of the Highway Patrol trooper who conducted the accident investigation.
A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact. In deciding such motion, the trial court is obligated to draw every possible inference in favor of the nonmoving party. Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985). "[I]f a record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party, and summary judgment must be denied." Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995). See also Thoma v. Cracker Barrel Old Country Store Inc., 649 So.2d 277, 278 (Fla. 1st DCA 1995); Tretten v. Irrgang, 654 So.2d 1297 (Fla. 4th DCA 1995).
We conclude the evidence that the lights on appellee's modified jeep were so bright that they filled the whole interior of the Newman vehicle with light, together with evidence concerning the unlawful height of appellee's headlights, is sufficient to create a genuine issue of material fact. Where the case is extremely close on the question of negligence, doubt should be resolved in favor of a jury trial. Bess v. 17545 Collins Avenue, Inc., 98 So.2d 490, 492 (Fla. 1957).
Accordingly, we reverse the grant of summary judgment in favor of appellee, and remand for further proceedings.
WEBSTER, J., and REYNOLDS, Associate Judge, concur.
ON MOTION FOR REHEARING
Appellee seeks rehearing or clarification of the September 5, 1995, opinion filed in this cause. In his motion, appellant asserts, inter alia, that the appellee's deposition is devoid of any mention of being cited for the height of his headlights, and there is no record of the height of appellee's headlights or testimony that the headlight height was the proximate cause of the accident. Appellant filed a reply to the motion for rehearing together with a motion for sanctions in the form of attorney's fees and costs. As grounds for the imposition of sanctions, appellant asserts the motion for rehearing was frivolous or filed in bad faith for the purpose of delay.
We deny the motions for rehearing and for sanctions, but amend the footnote by substituting the following in lieu of the language which appeared in the footnote in the opinion issued in September 1995:
In his deposition, appellee acknowledged that he had been cited for the unlawful height of his bumpers. He further stated that the oversized tires mounted on his modified jeep raised the bumper too high. Evidence concerning the jeep's possibly unlawful headlight height appears in the deposition testimony of the Highway Patrol trooper who conducted the accident investigation.
In all other respects, the motions filed by appellee and appellant are denied.
WEBSTER, J., and REYNOLDS, Associate Judge, concur.