Expert Affidavits and Summary Judgment

[2016 Fla. App. LEXIS 12395 (Fla. Dist. Ct. App. 2d Dist.)].  The elevator company claimed that it was not responsible and offered evidence showing that the elevator had been inspected three days prior to the incident in which the man was injured. Based on this evidence, the elevator company filed a motion, asking the court to grant summary judgment in favor of the elevator company.

Summary judgment is a procedural device used in litigation to quickly dismiss a case without a trial. It is used when one party believes that there is no dispute as to the material facts of the case and that they should be entitled to judgment as a matter of law. As a general rule, courts are supposed to act cautiously when considering a motion for summary judgment and should only grant summary judgment when there is absolutely no basis for a jury verdict in favor of the moving party.

In response to the elevator company’s motion for summary judgment, McNabb’s attorneys submitted an affidavit from an expert, Charles Benedict. In the affidavit, Mr. Benedict offered his opinion that the leak had been occurring between a 4.5 and 18 day period prior to the inspection, based on a drip test, the depth of the oil, the dimensions of the machine room, and the engineer’s observation of the drip rate. The elevator company maintained that the leak occurred after the inspection.

The trial court granted the elevator company’s motion for summary judgment stating: “I’m going to discount this affidavit of Charles Benedict, because I don’t believe it’s based on any actual facts.” On appeal, McNabb’s attorneys argued that the affidavit created a material issue of fact and that summary judgment was improper. The Second District Court of Appeals reversed the decision and held that the trial court improperly weighed the evidence when it chose to discount the affidavit.

When an affidavit creates a material issue of fact courts should not participate in the weighing of evidence and take the case from a jury. Quoting the case Nard, Inc. v. DeVito Contracting & Supply, Inc. the court in McNabb noted: “[T]he merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.”