
    John Owen JAMES, Jr., and Karen James, Husband and Wife, Appellants, v. Edwin M. SKINNER, II, Appellee.
    No. 84-399.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.
    Rehearing Denied March 7, 1985.
    
      Robert Widman and Omer Causey of Nelson, Hesse, Cyril, Smith, Widman & Herb, Sarasota, for appellants.
    Claire L. Hamner of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellee.
   PER CURIAM.

Plaintiffs John and Karen James appeal from an order granting final summary judgment in favor of defendant Edwin Skinner. They contend that there were genuine issues of material fact; therefore, the issues of negligence and proximate cause should have been submitted to a jury.

On December 17, 1982, plaintiff John James was injured in the early morning darkness while driving down a highway when his automobile struck two of the defendant’s horses which had escaped from a nearby pasture. The defendant, in a deposition, testified that he had secured the gate to the pasture about 10:00 p.m. the night before, but upon investigation after the accident, he found the gate open. The gate is secured by a chain which is hooked over a nail in the gate post. The defendant had bent the nail slightly down and in toward the direction of the gate in order to make it possible to get the chain over it. Even after the nail had been bent, it remained difficult to stretch the chain over it.

As a result of the incident, plaintiffs filed a negligence action for damages against the defendant. The defendant denied any negligence on his part and moved for summary judgment alleging that there were no genuine issues of material fact. After reviewing the pleadings and depositions, the trial court granted defendant’s motion and entered final summary judgment in his favor.

Upon examination of the defendant’s deposition and the photographs of the gate, we do not believe that the defendant met the burden of conclusively proving that he had not negligently permitted his livestock to stray on the public roads. § 588.15, Fla.Stat. (1983); Visingardi v. Tirone, 193 So.2d 601 (Fla.1966). Defendant relies primarily on Lee v. Hinson, 160 So.2d 166 (Fla. 2d DCA), cert. denied, 166 So.2d 594 (Fla.1964), to uphold the summary judgment. Lee is distinguishable. There, the gate through which the horse escaped was secured by a snap lock which could be opened only by human hands. We believe the facts in this case are susceptible to the inference that the chain could have been brushed over the head of the nail by one of the horses.

Accordingly, we reverse the final summary judgment and remand for trial.

GRIMES, A.C.J., and SCHEB, J„ concur.

SCHOONOVER, J., dissents with opinion.

SCHOONOVER, Judge,

dissenting.

I respectfully dissent. The defendant met his burden of demonstrating the absence of a material fact from which a jury could infer negligence. The burden then shifted to the plaintiffs to come forward with counter-evidence sufficient to reveal a genuine issue of fact, a burden they did not meet. It is not enough for the opposing party merely to assert that an issue exists. Landers v. Milton, 370 So.2d 368 (Fla.1979).

The mere fact that the defendant’s horses were running at large on the highway, and the gate to the defendant’s pasture was open, did not justify an inference that the defendant negligently permitted his livestock to stray on the public road. Lee. The defendant, through his pleadings, deposition, and answers to interrogatories, denied that he was negligent in failing to properly pen his horses. He stated that he had provided a pasture with adequate fencing and a proper gate. His horses had never before escaped from that pasture. The defendant latched the gate on the night of the accident and explained that had it not been secured, the gate would have swung inward. In describing the gate’s latching mechanism, the defendant stated that it was difficult to put the chain on and off the nail when the gate was in position. The nail had been intentionally bent to make it possible to get the chain over it, and it remained difficult to stretch the chain over the nail even after the nail had been bent.

There was nothing offered on the plaintiffs behalf to contradict or impeach the defendant’s evidence. There was no evidence that the latching mechanism could be operated by something other than human hands and fingers. There was no evidence that the chain was loose, let alone so loose that a horse could brush it over the head of the nail. The inference that the chain, which had to be pulled taut in order to latch it over the end of the nail, and even then only with difficulty, could be unlatched from the nail by a horse brushing up against it, is not a reasonable inference. I, accordingly, would affirm.  