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March 31, 2017 by Tom

Torts — Premises liability — Slip and fall — Trial court erred in entering summary judgment in favor of condominium association based on its determination as a matter of law that association did not have notice of oil leak that allegedly caused accident

42
Fla. L. Weekly D719b
Top of Form

Torts
— Premises liability — Slip and fall — Trial court erred in entering summary
judgment in favor of condominium association based on its determination as a
matter of law that association did not have notice of oil leak that allegedly
caused accident — Affidavit of plaintiff’s expert created genuine issue of
material fact regarding whether association had constructive notice of oil
leak, and trial court erred by discounting expert’s affidavit after weighing
expert’s credibility and reliability and speculating on plaintiff’s chance of
success

JONATHAN
McNABB, Appellant, v. BAY VILLAGE CLUB CONDOMINIUM ASSOCIATION, INC.; TAYLOR
ELEVATOR CORP.; and D.G. SUITOR & ASSOCIATES, INC., Appellees. 2nd
District. Case No. 2D15-5613. Opinion filed March 29, 2017. Appeal from the
Circuit Court for Lee County; Elizabeth V. Krier, Judge. Counsel: Thomas B.
Deminico of Lusk, Drasites & Tolisano, P.A., Cape Coral, for Appellant.
Kelly Fantetti and Vanessa Ross of Groelle & Salmon, P.A., Sarasota, for
Appellee Bay Village Club Condominium Association, Inc. No appearance for
remaining Appellees.

(SILBERMAN,
Judge.) Jonathan McNabb seeks review of a final summary judgment in favor of
Bay Village Condominium Association, Inc., in this slip and fall case. The
trial court determined as a matter of law that Bay Village did not have notice
of the oil leak that allegedly caused the accident. We reverse because the
court erroneously refused to consider an affidavit that created a genuine issue
of material fact.

McNabb
filed a complaint for injuries he allegedly sustained when he slipped and fell
on a foreign substance on Bay Village’s premises. McNabb alleged that Bay
Village owed McNabb a duty to keep the premises safe, to keep the premises free
from debris, and to warn of any dangerous conditions. Bay Village moved for
summary judgment based on its defense that it did not have notice of the
dangerous condition. In support of its motion, Bay Village presented the
following deposition testimony.

McNabb
testified that he slipped on what he assumed was hydraulic oil in a hallway
outside the elevator on the ground floor of a condominium building. He did not
see the oil before he slipped, and he did not know how long it had been on the
floor. After he fell, he noticed oil seeping from under the door of the machine
room next to the elevator into the hallway. It had made a puddle that was about
four or five feet wide.

Karyn
McNabb and Judith Maurer testified that they saw oil in the hallway when they
returned home a short while after the accident. Karyn reported the oil to Brad
Brian, who performed maintenance for Bay Village. Brian called Taylor Elevator
Corporation, and Taylor sent out elevator technician Darren Gulmy a few hours
later. Gulmy testified that there was oil about a quarter of an inch deep in
the machine room and some had leaked into the hallway to form a puddle. Gulmy
concluded that a leaking Victaulic seal on a pipe in the machine room was the
source of the oil. He calculated that the pipe was leaking oil at a rate of
about one drip every two seconds.

None
of these people saw any footprints or marks in the oil which would indicate
that it had been walked through. And none of the professionals could determine
when the leak started or how long it would have taken for the leak to get from
the machine room into the hallway where McNabb fell. Three days prior to the
accident, the elevator had been inspected by inspector Stanley Rigby and Taylor
Elevator’s elevator technician Roger Hicks. They did not see any leaks in the
machine room.

Based
on this testimony, Bay Village argued it was entitled to summary judgment
because there was no evidence regarding how long the oil had been in the
hallway. McNabb did not dispute Bay Village’s assertion that it did not have
actual knowledge of the oil leak. The only disputed issue was whether Bay
Village had constructive knowledge of the oil leak.

In
opposition to Bay Village’s motion for summary judgment, McNabb presented the
affidavit of Dr. Benedict, a professional engineer with a Ph.D. in mechanical
engineering. Dr. Benedict relied on (1) Gulmy’s testimony describing the extent
and source of the oil leak, (2) Brian’s testimony about the call from Karyn
McNabb, (3) the testimony of Hicks and Rigby regarding code violations they
discovered, (4) service records describing the leak and the condition of the
equipment on the evening of the incident, and (5) his personal inspection of
the machine room and hallway.

Dr.
Benedict relied on Gulmy’s estimate that the depth of the oil in the machine
room was 1/4 inch to conclude that the oil had been leaking for approximately
eighteen days. He also testified that even if the depth of the oil was closer
to 1/16 inch, the oil had been leaking for approximately 4.5 days. At any rate,
Dr. Benedict believed the leak had been occurring for at least twenty-four
hours prior to the accident.

The
trial court discounted Dr. Benedict’s affidavit for the following reasons:

The expert affidavit filed by the Plaintiff lacked
credibility &/or reliability as he was not an elevator expert; he first
testified that the leak was possibly there for anywhere from 4.5 days to 18
days, and then changed his testimony and said it was there for more than 24
hours. His opinion was weak, and could only state that the leak was possibly
long term. This leaves open that other possibilities are equally as likely.

The
court made the following findings. The elevator had been inspected three days
prior to the accident, and no leak was detected. The leak was not reported to
Bay Village until after the accident. The puddle of oil did not have track
marks going through it, and there was no other evidence that the oil had been
in the hallway for a long time. In fact, Karyn McNabb did not see the leak
until after the accident, and McNabb himself was not sure what he slipped on.
While there was evidence that the elevator machinery was not up to code, none
of the violations concerned any equipment that would have caused an oil leak.
The court concluded that “Bay Village was not on constructive notice of the
leak as a matter of law based on the undisputed facts.”

McNabb
argues that the trial court erred in discounting Dr. Benedict’s affidavit based
on a lack of credibility and reliability. He also argues that the court erred
in granting summary judgment because Dr. Benedict’s affidavit created a genuine
issue of material fact. We find merit in both arguments.

Summary
judgment should only be granted when the evidence establishes “that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Arce v. Haas, 51 So. 3d 530, 531 (Fla. 2d
DCA 2010) (quoting Estate of Githens ex rel. Seaman v. Bon Secours-Maria
Manor Nursing Care Ctr., Inc.
, 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006)).
The trial court is precluded from weighing witness credibility and speculating
about the nonmoving party’s chance of success. Id. at 531-32.

In
rejecting Dr. Benedict’s affidavit, the trial court explicitly weighed witness
credibility by finding that Dr. Benedict’s affidavit “lacked credibility
&/or reliability.” The court also speculated about McNabb’s chance of
success by finding that Dr. Benedict’s “opinion was weak” and “leaves open that
other possibilities are equally as likely.” This was error. In fact, this court
has already stated that the same judge made a similar error in determining that
a previous affidavit of Dr. Benedict’s lacked credibility. See McNabb
v. Taylor Elevator Corp.
, 203 So. 3d 184, 185 n.2 (Fla. 2d DCA 2016).1

We
recognize that the trial court is not required to consider affidavits that are
not based upon personal knowledge or are devoid of evidentiary support. See
Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc.,
793 So. 2d 978, 980 (Fla. 2d DCA 2001); Howard v. Boulanger Drywall Corp.,
23 So. 3d 817, 819 (Fla. 4th DCA 2009). However, Dr. Benedict’s affidavit was
based on his personal knowledge as gleaned from record documents and his
analysis as an expert. See McNabb, 203 So. 3d at 186 (concluding
that the trial court erred in rejecting Dr. Benedict’s previous affidavit,
which relied on the same evidence, as devoid of factual support).

To
the extent the trial court determined that Dr. Benedict made inconsistent
findings in the affidavit, that finding was erroneous. According to Dr.
Benedict’s specific calculations, the leak had been occurring between 4.5 and
eighteen days prior to the accident. This finding is consistent with Dr.
Benedict’s subsequent conclusion that the leak had been occurring for at
least
twenty-four hours before the accident.

A
consideration of Dr. Benedict’s affidavit leads to the conclusion that there
are disputed issues of material fact regarding whether Bay Village had
constructive notice of the dangerous condition. We disagree with Bay Village’s
assertion that Dr. Benedict’s affidavit does not create a disputed issue of
material fact regarding notice because Dr. Benedict did not specifically state
that the oil had been leaking in the hallway for at least twenty-four
hours prior to the accident. This is a reasonable inference from the context of
the affidavit, and we are required to interpret the evidence and all reasonable
inferences in the light most favorable to McNabb. See Dewar v. Dough
Boy Pizza, Inc.
, 184 So. 3d 1169, 1170-71 (Fla. 2d DCA 2015).

In
conclusion, the trial court erred by discounting Dr. Benedict’s affidavit after
weighing the witness’s credibility and reliability and speculating on McNabb’s
chance of success. Because Dr. Benedict’s affidavit created a genuine issue of
material fact regarding whether Bay Village had constructive notice of the oil
leak, summary judgment was improper.

Reversed
and remanded. (CRENSHAW and SALARIO, JJ., Concur.)

__________________

1In McNabb,
this court reversed a final summary judgment entered in favor of Taylor
Elevator in the underlying case. 203 So. 3d at 186. The trial court had ruled
that Taylor Elevator established it was not liable as a matter of law by
presenting unrefuted evidence that it inspected the elevator machinery three
days before the accident and observed no leakage. Id. at 185. In so
doing, the court disregarded an affidavit of Dr. Benedict containing many of
the same findings as the one in this case.

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