Trial Court Erred by Weighing Credibility of Expert’s Affidavit on Summary Judgment

In this case involving a slip in fall at a condominium, the Plaintiff sought to prove negligence of the Condominium Association through an expert who opined on the length of time an elevator oil leak existed based on the depth of the oil puddle. Defendant filed a Motion for Summary Judgment arguing it did not have notice of the oil leak.

Regarding Plaintiff’s expert, the trial court stated: “[h]is 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 trial court found that their was no material facts in dispute regarding the length of time the leak was present and granted summary judgment for the Defendant. On appeal, the Second DCA overturned summary judgment stating:

“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.'”

The Second DCA, did note that:

“the trial court is not required to consider affidavits that are not based upon personal knowledge or are devoid of evidentiary support.” Citing 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).

Here, however, the Second DCA stated that the expert’s affidavit was based on his personal knowledge and therefore the trial court erred by discounting the expert’s affidavit.

Jonathan McNabb v. Bay Village Club Condominium Association, Inc., Case No. 2D15-5613 (Fla. 2D DCA March 29, 2017).