At the trial court level in Miami, Judge Cynamon struck a witness affidavit presented by the Plaintiff in opposition to a motion for summary judgment. Judge Cynamon relied on a case commonly relied upon by Defendants to strike affidavits. That case, Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954), contains a ruling from the Florida Supreme Court that “a party when met by a [m]otion for [s]ummary [j]udgment should not be permitted by his [or her] own affidavit, or by that of another to baldly repudiate his [or her] previous deposition so as to create a jury issue.” Id. And, because Judge Cynamon struck the affidavit, she found there to be no issues as to any material fact regarding actual or constructive notice. Thus, because there was no evidence that the Defendant had actual or constructive knowledge of the purportedly dangerous condition, per Florida Statute 768.0755(1), Judge Cynamon granted Summary Judgment against the Plaintiff.
In the instant matter, the Third DCA noted that, while Ellison is the law, a “party may file a subsequent affidavit for the purpose of explaining testimony given at a prior deposition, provided the explanation is credible and not inconsistent with the previous sworn testimony”. Ouellete v. Patel, 967 So. 2d 1078 (Fla. 2nd DCA 2007). In the instant case, the Third DCA noted that the original witness testimony regarding the substance was that it was clear and that the witness did not know its origin. The subsequent affidavit described the puddle of water as “very long” and noted that there were “several track marks or footprints going in both directions”. The Third DCA pointed out that this did not baldly repudiate the prior testimony. Rather, there were only two prior areas of inquiry and the area that the new affidavit touched upon had not been previously asked or testified to. They also pointed out that there was a video showing that the area of the alleged substance had not been looked at for about 20 minutes. And, in a footnote, the Third DCA mentioned that “For good reason: the judicial landscape is littered with reversals of summary judgments where Ellison has been misapplied” Id.
The Florida appellate courts have clearly delineated that, in most instances, footprints and track marks suffice to defeat summary judgment. For a Miami lawyer, what does this mean? First, screening of cases and preparation of our clients is of massive importance. If a person truly does not know what caused him or her to slip and fall, and there is not other testimony or evidence to prove it, the case may be one to decline. For a Miami litigant, it is vital to understand the law and what needs to be proven in order to recover. Moreover, for a Miami slip and fall victim, if possible, he or she should try to take pictures to capture any footprints or track marks running through the substance. If photos cannot be taken, a mental note should be made to remember the condition itself and any attributes that may go to show notice. In most Miami slip and fall cases, whether or not a case survives is dependent on the Plaintiff and his or her witnesses description of the substance upon which he or she slipped and fell.
This decision helps Plaintiff’s defend against Ellison and defense arguments that affidavits should be stricken. Now, an affidavit cannot directly fly in the face of prior testimony. However, this case makes it abundantly clear that an affidavit can touch upon areas that were not delved into previously and even shed light on something that was discussed previously. However, the affidavit cannot “baldly repudiate” prior testimony.
At Wolfson & Leon, our Miami personal injury lawyers pay close attention to these Miami slip and fall opinions from the Third DCA and other districts. The law is evolving, and we take the time to know what those changes are. If you are a lawyer and have questions on how to handle a case, we are happy to give you a free consultation and will not charge for that. We believe in helping all Plaintiff victims and lawyers be successful so that the landscape does not further deteriorate. The more cases that are lost to summary judgment, the more emboldened insurance companies and large self-insureds get. So, if you are a lawyer, we will co-counsel with you or gladly give you some advice on how to approach these cases.
If you are a Miami slip and fall victim and fell at a supermarket, store, Walmart, Target, Publix, or at any place that has a legal duty, we will give you a free consultation and, if we think we can recover for you, we will likely take on your case.
If you want to reach our Miami slip and fall lawyers, call (305) 285-1115 anytime. We have offices in Miami, Fort Lauderdale. Fort Myers and West Palm Beach. All our consultations are free. Give us a call – we can help.