Trial Court Erroneously Entered Summary Judgment In A Tire Blow Out Case Resulting In The Plaintiff’s Quadriplegia When The Record Contained Sufficient Factual Issues.
Desvarieux v. Bridgestone Retail, 45 Fla. L Weekly D188 (Fla. 3rd DCA January 22, 2020):
While driving to Tampa, a man noticed that his left rear tire was flat. Using his voice assisted GPS, he found a repair shop that serviced the tire for $40 in cash but issued no receipt. The plaintiff memorialized the incident, however, by uploading a photo to social media.
The next day, the plaintiff noticed the same tire was flat and found a Tires Plus store. He spoke to an employee who advised him it was almost closing time and he would need approval to service the tire. The employee did the work, and the plaintiff gave him $20 in cash. He never received any paperwork demonstrating the repair.
Later that evening, the plaintiff was driving back to Miami when he experienced a blowout, which caused serious injuries and rendered him quadriplegic.
The plaintiff sued Bridgestone, which owned the Tires Plus store. Bridgestone denied ever having performed any work on the plaintiff’s vehicle. However, the testimony verified plaintiff’s version of the events.
Bridgestone moved for summary judgment asserting that there was no evidence sufficient to demonstrate that a Tires Plus employee had repaired the tire, and even if there were, plaintiff failed to establish that the employee was within the course and of scope of his employment.
Plaintiff argued that Bridgestone failed to “conclusively” prove that he had never visited their store, or that the employee was not acting in the scope of his employment. Plaintiff filed an affidavit of a former Tires Plus employee who attested that he had previously witnessed employees accepting cash for vehicle repairs without written work orders. Plaintiff was also able to recognize and identify the employee who was still working at the time.
While the trial court believed that plaintiff had impermissibly stacked inferences, the Third District disagreed. The evidence was permissible and only a trier of fact may weigh evidence in determining credibility. The court was without authority to weigh the evidentiary value of the plaintiff’s recollection of which tire store he had visited on the day in question.
Because the evidence presented did create genuine issue of material fact, and because defendant failed to conclusively show there was none, the court reversed the summary judgment.