In сhallenging a final summary judgment entered in a personal injury action
Castro was driving with two passengers on 1-95 in Broward County when his vеhicle hit a metal object in the road, causing a tire blowout. He pulled to the side of the highway and exited the vehicle with his passengers. Shortly thereafter, defendant Jackson hit the same object, causing her to lose control of her car, and sending it spinning into defendant Brazeau’s vehicle. Brazeau immediately hit the brakes, his air bag deployed, and his car veered into the guardrail. While he maintains that he hit the guardrail and not Castro’s vehicle, other witnesses testified that he hit Castro’s vehicle and Castro himself, causing injuries. Castro filed suit for damages against Jackson, Brazeau, and an unknown “Doe” towing company which he alleged was responsible for dropping the metal object hit by Jackson onto the highway.
Brazeau moved for summary judgment contending that the material facts were not in dispute, and he was not negligent. He presented his deposition, Castro’s deposition, and the deposition of Castrо’s passengers. No evidence suggested any negligence, other than the passengers’ testimony regarding Brazeau’s speed. However, neither Castro nor his passengers saw the Brazeau vehicle before the accident. One of the passengers testified that Brazeau must have been traveling very fast because of the damage caused to Castro’s vehicle’s chassis in the crash. Because there was no expert evidence offered to show that the crash damage would indicate that Brazeau was speeding or that he was negligent, the trial court granted summary judgment.
On appeаl, Castro claims that the passengers’ testimony created a disputed issue of fact as to Brazeau’s speed and, therefore, his negligence. It is сlear that neither witness saw the vehicle prior to Jackson’s vehicle impacting Brazeau’s vehicle. The conclusion of one passenger that Brazeau had to be speeding based upon the crash damage caused to Castro’s vehicle was not competent evidence because the passenger was not qualified as an expert. See § 90.701(2), Fla. Stat. (permitting opinion testimony from lay witnesses only when such opinions do not require sрecialized knowledge, training or skill). “It is fundamental that supporting or opposing affidavits filed in connection with a motion for summary decree shall be mаde on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Harrison v. Consumers Mortgage Co.,
Castro cites Trouette v. Reynolds,
Unlike Trouette, Castro did not present any evidence or expert testimony that Bra-zeau may have acted negligently in failing to avoid the collision with Jackson. After Brazeau presented evidence showing there was no genuine issue of matеrial fact, it was Castro’s burden to “come forward with counter-evidence sufficient to reveal a genuine issue.” Corbitt v. Kuruvilla,
Recognizing the deficiency of the witness testimony to provide competent evidence of negligence, the trial judge asked Castro’s attorney whether he had an affidavit from an accident rеconstruction expert. The attorney responded that he had thought the witness testimony was sufficient. He said that he did have an expert but had not as yet tаken the expert’s deposition. (This itself is curious, because usually parties do not take their own expert witness’s deposition unless required to presеrve the witness’s testimony for trial.) The lawyer then asked for a continuance to obtain such evidence. The judge admonished Castro’s attorney, telling him that thе motion had been set for hearing for months, giving the attorney plenty of time to obtain the necessary proof. Explaining that the affidavits were required to be filed at least two days prior to the hearing, see Florida Rule of Civil Procedure 1.510(c), the judge refused to continue the case. Because there wаs no evidence to dispute the facts, the judge granted summary judgment, saying he had no choice under the circumstances.
On appeal, Castro arguеs that the judge erred because he did not believe he had the discretion to grant a continuance. We have read the transcript. This experiеnced trial judge was not working under a misapprehension of law. Instead, he noted that the lawyer had months to file an affidavit or ask for a continuanсe, and neither was done. He told the lawyer that he could have moved for a continuance if he had good and sufficient ground for it, but the lawyer offered no good reason for a continuance of the summary judgment proceeding after the entire matter had already been argued. The judge concluded that based upon the affidavits and depositions filed, a summary judgment was compelled. The judge understood that he had discretion regarding the request for con
Affirmed.
