Third District Court of Appeal
State of Florida
Opinion filed November 23, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1624
Lower Tribunal No. 19-10169
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Nermy Del Rio,
Appellant,
vs.
Russell Engineering, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Oscar
Rodriguez-Fonts, Judge.
Morgan & Morgan, and Brian J. Lee (Jacksonville), for appellant.
Holland & Knight LLP, and Frances Guasch De La Guardia and
Suzanne M. Aldahan, for appellee.
Before LOGUE, SCALES, and HENDON, JJ.
LOGUE, J.
Nermy Del Rio appeals a final summary judgment entered in favor of
Russell Engineering, Inc. in this negligence and premises liability action. We
review a trial court’s order on a motion for summary judgment de novo.
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla.
2000).
The underlying action arose from an accident in which Mr. Del Rio’s
vehicle allegedly struck a protruding manhole cover while traveling
westbound on West Flagler Street somewhere between 16th Avenue and
17th Avenue in Miami-Dade County. On the date of the accident, Russell
Engineering was performing roadwork in the area pursuant to a contract with
the Florida Department of Transportation.
The issue on summary judgment centered on the location of the
manhole cover and whether it was in the area where Russell Engineering
was performing work at the time. Mr. Del Rio unequivocally testified at least
three separate times during his first deposition that the manhole cover was
located on West Flagler Street between 16th Avenue and 17th Avenue.
During discovery, Mr. Del Rio also produced close-up photographs of the
manhole cover, which he testified he took some time after the accident
occurred although he could not recall exactly when. These photographs
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depicted a manhole cover with a “W” in the center and several white striped
circles around the “W.”
Mr. Del Rio also 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. During his second deposition almost two months later, defense
counsel presented Mr. Del Rio with a Google Earth photograph of the area
where the incident occurred and asked whether the photograph showed the
manhole cover Mr. Del Rio struck. Mr. Del Rio responded, “I believe it is,”
and identified the manhole cover in the right lane as the one he believed was
involved. That manhole cover had dots embedded across the cover and the
word “sewer” displayed on it. The Google Earth photograph also showed a
water main manhole cover in the left lane with a “W” in a box in the center.
Russell Engineering moved for summary judgment and argued it was
not liable to Mr. Del Rio because the manhole cover Mr. Del Rio claimed to
have struck was “not located in any westbound lanes of W. Flagler Street,
nearing S.W. 17th Avenue.” In support of its argument, Russell Engineering
noted that the manhole cover Mr. Del Rio identified in the Google Earth
photograph exhibit during his deposition was not the same as the one
depicted in the close-up photographs taken by him and argued that none of
the manhole covers located in the area identified by Mr. Del Rio resembled
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the manhole cover depicted in the close-up photographs he produced. In
opposition, Mr. Del Rio relied on his unequivocal testimony that the manhole
cover was located on West Flagler Street between 16th Avenue and 17th
Avenue and argued there was a genuine issue of material fact regarding the
location of the manhole cover that precluded summary judgment.
Following a hearing, the trial court granted summary judgment in favor
of Russell Engineering, finding that Mr. Del Rio failed to put forth sufficient
evidence that the manhole cover he struck was located on West Flagler
Street between 16th and 17th Avenue. The trial court noted that both Mr. Del
Rio’s expert witness and Russell Engineering’s corporate representative
agreed that Mr. Del Rio’s photograph of the close-up manhole cover he
struck was not the equivalent or the same as the two manhole covers that
were present and in existence in the two westbound lanes on West Flagler
Street between 16th and 17th Avenue. The trial court further found that Mr.
Del Rio lacked sufficient evidence to establish another location of the
manhole cover or that Russell Engineering had performed work at this other
unknown location.
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
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under the applicable law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,
248–49 (1986). “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.” Moore v. Moore,
475 So. 2d 666, 668 (Fla. 1985).
Here, the trial court erred in relying only on the photographic evidence
produced and the testimony of Russell Engineering’s corporate
representative and Mr. Del Rio’s expert witness relating to the photographs,
while seemingly failing to consider and give weight to Mr. Del Rio’s
unequivocal testimony regarding the location of the manhole cover. Mr. Del
Rio testified at least three separate times during his first deposition that the
accident occurred “[b]etween 16th Avenue and 17th Avenue and West
Flagler Street,” that the manhole was located “[o]n Flagler Street,” and,
finally, clarifying for defense counsel that the accident occurred on Flagler
Street between “16th and 17th" Avenue not “15th and 17[th].”
Moreover, a reasonable jury could conclude that Mr. Del Rio’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, as Mr. Del Rio’s expert witness suggested, given
that Mr. Del Rio testified during his first deposition that he could not recall
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which of the two westbound lanes he was traveling in when he struck the
manhole cover. Finally, Mr. Del Rio 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[]” Mr. Del Rio’s
testimony that the manhole was located on West Flagler Street between 16th
and 17th Avenue. See Wilsonart, LLC v. Lopez,
308 So. 3d 961, 963 (Fla.
2020) (quoting Scott v. Harris,
550 U.S. 372, 380 (2007)).
Mr. Del Rio’s testimony was sufficient to establish a disputed issue of
material fact concerning the location of the manhole cover. The photographic
evidence produced did not definitively disprove Mr. Del Rio’s testimony.
Rather, when Mr. Del Rio’s testimony and the photographic evidence at issue
are taken together, it is clear they present an issue of fact for a jury to decide.
Because a genuine issue of material fact exists as to whether the
manhole cover Mr. Del Rio struck was located on West Flagler Street
between 16th and 17th Avenue in the area where Russell Engineering was
performing roadwork, the trial court should have allowed the issue to go
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before a jury. We therefore reverse the order granting summary judgment in
favor of Russell Engineering and remand for further proceedings.
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