Florida District Courts of Appeal, 1981

Bell ex rel. Neil v. Malacoate

Bell ex rel. Neil v. Malacoate
Florida District Courts of Appeal · Decided May 13, 1981 · Beranek, Hersey, Hurley, Only
397 So. 2d 1046; 1981 Fla. App. LEXIS 19812 (Southern Reporter, Second Series)

Bell ex rel. Neil v. Malacoate

Opinion of the Court

PER CURIAM.

Plaintiff appeals from a summary judgment entered in favor of the defendant in a comparative negligence case. Since the tes*1047timony of two witnesses was in direct conflict with that of the minor plaintiff, we find that this is a classic case in which a summary judgment should not be entered. While the jury might very well choose to believe the two non-party witnesses rather than the plaintiff, this is not an appropriate case for summary judgment. The trial court necessarily chose either to disbelieve or disregard the testimony of the plaintiff/child. The summary judgment is, therefore, reversed.

BERANEK and HURLEY, JJ., concur. HERSEY, J., concurs in result only.

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