PEREZ v. MILTON, 322 So.2d 562 (Fla.App. 3 Dist. 1975)

ROGELIO PEREZ, SR., INDIVIDUALLY AND AS FATHER AND NEXT FRIEND OF ROGELIO PEREZ, JR., A MINOR, APPELLANTS, v. JOSE MILTON ET AL., APPELLEES.

No. 74-1629.District Court of Appeal of Florida, Third District.
November 18, 1975.

Appeal from the Circuit Court, Dade County, Harold R. Vann, J.

Samuel Sheradsky, Miami, for appellants.

Frates, Floyd, Pearson, Stewart, Proenza Richman and John M. Brumbaugh, Miami, for appellees.

Before BARKDULL, C.J., and HENDRY and NATHAN, JJ.

PER CURIAM.

Appellants seek reversal of a summary final judgment rendered in favor of appellees, owners of an apartment complex, in an action arising from injuries sustained by nine year old Rogelio Perez, Jr., when he was hit in the eye by a shot from a B.B. rifle fired by Mark Mura, an eleven year old friend, and the son of appellees’ managers, Mr. and Mrs. Bruno Mura.

Mark’s mother directed him to go to a vacant apartment in the complex and get a B.B. rifle that had been left by a former tenant. Rogelio, Jr., who lived with his parents in the complex went with his friend Mark to the apartment where the rifle was found and taken to the office of the managers, Mr. and Mrs. Mura. Sometime thereafter, as Rogelio, Jr. was leaving from that vicinity, he was shot in the eye

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by Mark with the B.B. rifle which he had brought to the office at the request of his mother.

The trial court, upon consideration of the pleadings, depositions and admissions on file, found that there was no genuine issue of material fact to be tried and that the appellees were entitled to a summary final judgment as a matter of law.

We do not agree. In our view the record on appeal discloses that there are genuine issues of material fact which have not been eliminated by the movants for the summary judgment. Carter v. Parker, Fla.App. 1966, 183 So.2d 3.

Reversed.

BARKDULL, C.J., dissents.