David Adelstein | Florida Construction Legal Updates
This is short article on summary judgments. A motion for summary judgment, as you may already know, is a procedural vehicle to try to dispose of issues or claims in a lawsuit, either partially or fully. The objective is that the moving party claims that there is no genuine issue of material fact and that they are entitled to a judgment (partially or finally) as a matter of law. See Florida Rule of Civil Procedure 1.510. In May of 2021, Florida adopted the federal summary judgment standard which theoretically means trial courts should grant more summary judgments, not less, based on the more rigorous standard.
There have been many articles that discuss Florida’s new summary judgment standard including how the standard used to be versus how it is supposed to be now that it is modeled after the federal standard. That isn’t the point of this posting. (Here is an article published in the Florida Bar Journal that provides a primer on summary judgments in case you are interested.)
The point of this posting is to understand the words “genuine” and “material” as underlined above when moving for or defending against a summary judgment. These words have important meaning in the context of motions for summary judgment. In other words, what is a genuine issue of material fact? This is a question that should not be overlooked because these are the facts you want to focus on and frame your arguments on when moving for or defending against a summary judgment. Notably, these are also the facts you want to introduce and emphasize at trial.
An issue of fact is “genuine” for summary judgment purposes if it could allow a jury to return a verdict in favor of the non-moving party, and an issue of fact is “material” if it could have any bearing on the outcome of the case under the applicable law. “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.”
Del Rio v. Russell Engineering, Inc., 47 Fla.L.Weekly D2411a (Fla. 3d DCA 2022) (internal citations omitted).
For example, Del Rio involved a negligence action dealing with a road construction project. The genuine issue of material fact involved the location of a manhole cover. The plaintiff struck a manhole cover and, on the date the accident occurred, the defendant was performing roadwork in that area. The plaintiff testified in a deposition that the manhole cover he struck was on West Flagler Street in Miami while he was traveling westbound between 16th and 17th avenue. He produced photographs of a manhole cover he believed he struck but the photographs were taken on a later date after the accident occurred. During a deposition, the defendant introduced a google earth photo of where the accident occurred that included a different manhole cover. The plaintiff testified he believed this was the manhole cover he struck (which was not in a westbound lane). The defendant then moved for summary judgment arguing the manhole cover plaintiff struck was not located in a westbound lane based on his testimony regarding the google earth photograph. The trial court granted summary judgment for the defendant finding that the plaintiff “failed to put forth sufficient evidence that the manhole cover he struck was located on West Flagler Street between 16th and 17th avenue.” Del Rio, supra. The appellate court reversed because although the plaintiff may have been confused (or fooled) or identified an incorrect manhole cover in an after-the-fact google earth photograph, he testified unequivocally as to the location of the manhole cover he struck during his deposition. The appellate court noted, particularly as it pertained to after-the-fact photographs that were not of the manhole cover on the date of the accident:
“[A] reasonable jury could conclude that [plaintiff’s] subsequent identification of the sewer manhole cover in the right lane as opposed to the water main manhole cover in the left lane during his second deposition was a mistake…given that [plaintiff] testified during his first deposition that he could not recall which of the two westbound lanes he was traveling in when he struck the manhole cover. Finally, [plaintiff] testified that he took the close-up photographs he produced sometime after the accident, but he could not recall exactly when, and the Google Earth photographs produced by the defense are dated one month after the accident. Therefore, neither party’s photograph conclusively establishes how (or where for that matter) the manhole appeared on the date of the accident. Accordingly, the photographic evidence does not “blatantly contradict[ ]” [plaintiff’s] testimony that the manhole was located on West Flagler Street between 16th and 17th Avenue.
Del Rio, supra, (internal citations omitted).
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.