On February 20, 2020, the Third District Court of Appeals reversed the grant of summary judgment in a Miami slip and fall case. In Williams v. Ryta Food Corp., 3rd District Case No. 3D19-0126, the Third District reversed Judge Abby Cynamon’s ruling in the 11th Circuit.
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.