Late last month, a state appellate court issued an opinion in a Florida premises liability case involving a woman who slipped and fell while at her local grocery store. The case required the court to determine if an affidavit of the plaintiff’s sister was properly excluded from consideration by the trial court before it granted the store’s motion for summary judgment. Ultimately, the court concluded that the sister’s affidavit should have been considered, and thus, summary judgment was inappropriate.
According to the court’s opinion, the plaintiff and her sister were shopping at the defendant grocery store when the plaintiff slipped and fell after stepping in a puddle of water. The plaintiff filed a Florida slip and fall lawsuit against the store, and presented an affidavit from her sister in support of her claim. In the affidavit, the sister explained that the puddle was right next to a large cooler, was oblong in shape, and looked to have been stepped in by other people.
The grocery store asked the court not to consider the sister’s affidavit because it “baldly repudiated” the testimony that she gave at a prior deposition. At the deposition, however, the sister was only asked two questions, including the origin of the puddle and whether it consisted of a transparent liquid. Neither counsel asked the sister about the shape of the puddle.
The lower court agreed with the store, striking the affidavit from consideration. The trial court then granted the store’s motion for summary judgment. The plaintiff appealed.
The appellate court reversed the lower court’s decision, holding that the sister’s affidavit was improperly excluded from evidence. The court noted that when a plaintiff faces a motion for summary judgment, she cannot beat the motion by “baldly repudiating” prior testimony just to create a jury issue. Essentially, this means that a plaintiff cannot tell an inconsistent story in an affidavit just to survive a defense motion for summary judgment.
Here, the court determined that the sister’s affidavit did not baldly repudiate her prior deposition testimony. The court explained that the sister was never asked about the shape of the puddle or whether it had been stepped in by other customers or employees. Because the sister was not asked these questions, she did not contradict herself in her affidavit, when she provided these additional details about the puddle.
Finally, the court held that, taking the sister’s affidavit into consideration, the plaintiff raised a jury issue regarding the store’s constructive knowledge of the substance. Thus, summary judgment was inappropriate.
Have You Been Injured in a Florida Slip and Fall Accident?
If you or someone you love has recently been injured in a Florida slip and fall accident, contact the dedicated injury advocates at Friedman Rodman & Frank, P.C. Our dedicated team of South Florida personal injury lawyers have extensive experience representing injury victims in all types of claims, including slip and falls, car accidents, and those related to dangerous or defective products. To learn more, and to schedule a free consultation to discuss your case with one of our knowledgeable attorneys, call 877-448-8585.