203 So. 3d 184
Fla. Dist. Ct. App.2016Background
- McNabb slipped on oil from a leaking Victaulic seal in the Bay Village elevator area; Bay Village owned the premises and contracted Taylor Elevator to maintain the elevators.
- Prior to the accident, a Victaulic seal leaked, causing oil to accumulate in the machine room and hallway; surveyor observed a drip every two seconds and oil depth about a quarter-inch.
- Taylor Elevator inspected three days before the fall; inspectors testified the seal was not leaking at that time.
- McNabb sued Bay Village and Taylor Elevator for negligent maintenance of the elevator and surrounding area.
- Taylor Elevator moved for summary judgment and cited the three-day-prior inspection as evidence against liability; McNabb offered Dr. Benedict’s affidavit asserting a longer leakage duration.
- The trial court granted summary judgment, discounting Benedict’s affidavit as lacking factual basis; the appellate court reverses and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Benedict establish a material fact about leak duration? | Benedict shows leakage lasted 4.5–18 days. | Affidavit relies on theory, not facts; no leakage at inspection. | Yes; creates a genuine issue of material fact. |
| Was the trial court permissible to discount Benedict's affidavit as lacking facts? | Affidavit based on measurements and observations; admissible. | Affidavit not based on actual facts; credibility questioned. | No; court erred in discounting Benedict and in weighing evidence. |
| Is summary judgment appropriate given conflicting evidence on leakage duration? | Conflicting expert opinions preclude summary judgment. | Evidence shows no leakage at inspection; supports judgment. | No; material issue of fact exists; remand required. |
Key Cases Cited
- Bernhardt v. Halikoytakis, 95 So. 3d 1006 (Fla. 2d DCA 2012) (de novo review; burden on movant to show no material fact)
- First Nat. Bank v. Hummel, 825 So. 2d 502 (Fla. 2d DCA 2002) (trial court cannot weigh credibility on summary judgment)
- 4 Corners Ins., Inc. v. Sun Publ'ns of Fla., Inc., 5 So. 3d 780 (Fla. 2d DCA 2009) (merest possibility of a genuine issue defeats SJ)
- Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138 (Fla. 2d DCA 2000) (summary judgment requires no genuine issue of material fact)
- Nat'l Bank v. Hummel, 825 So. 2d 502 (Fla. 2d DCA 2002) (considerations in summary judgment proceedings)
- Arce v. Haas, 51 So. 3d 530 (Fla. 2d DCA 2010) (credibility determinations improper on appeal for affidavit issues)