McNabb v. Taylor Elevator Corp. , 2016 Fla. App. LEXIS 12395 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JONATHAN McNABB, )
)
Appellant, )
)
v. ) Case No. 2D15-4838
)
TAYLOR ELEVATOR CORP.; BAY )
VILLAGE CLUB CONDOMINIUM )
ASSOCIATION, INC.; and D.G. )
SUITOR & ASSOCIATES, INC., )
)
Appellees. )
___________________________________ )
Opinion filed August 17, 2016.
Appeal from the Circuit Court for Lee
County; Elizabeth V. Krier, Judge.
Thomas B. DeMinico of Lusk, Drasites, &
Tolisano, PA., Cape Coral, for Appellant.
Michael J. Schwartz of Schwartz &
Kirschbaum, Miami, for Appellee Taylor
Elevator Corp.
No appearance for remaining Appellees.
KHOUZAM, Judge.
Jonathan McNabb appeals the final summary judgment entered in favor of
Taylor Elevator Corp. We reverse.
The dispute in this case arose after McNabb slipped and fell near an
elevator on the premises of Bay Village Club Condominium Association, Inc. Bay
Village owned the premises but contracted with Taylor Elevator Corp. to maintain its
elevators. At some point prior to McNabb's fall, a Victaulic seal in the elevator
machinery broke and leaked oil into the machine room and out into the hallway.
McNabb slipped and fell on the oil, injuring himself. Darren Gulmy, an elevator service
technician, serviced the leak after McNabb's fall. In his deposition, Gulmy stated that
the Victaulic seal was leaking at a rate of a drip every two seconds. He also testified
that the oil on the floor of the machine room was a quarter-inch deep.
McNabb filed suit alleging that Bay Village and Taylor Elevator were
negligent for failing to properly maintain the elevator and surrounding area. Bay Village
and Taylor Elevator moved for summary judgment. Taylor Elevator submitted evidence
showing that three days prior to McNabb's fall, it had inspected the elevator machinery,
including the Victaulic seal. The inspectors testified in their depositions that the seal
was not leaking at time of the inspection. In opposition to Taylor's motion for summary
judgment, McNabb submitted the affidavit of Dr. Charles Benedict, a mechanical
engineering expert. In his affidavit, Dr. Benedict opined, in pertinent part, that the
Victaulic seal had been leaking between four-and-a-half to eighteen days. He based
this opinion on the flow rate of the oil leaking from the seal as observed by Gulmy, drip
tests based on Gulmy's description, the depth of the oil observed by Gulmy, and the
dimensions of the machine room.
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The trial court granted Taylor Elevator's motion for summary judgment.1
In doing so, it discounted Dr. Benedict's affidavit:
I'm going to discount this affidavit of Charles Benedict,
because I don't believe it's based on any actual facts. To me
this is just really more in the line of pleading because he's
saying theoretically speaking, et cetera, et cetera, et cetera.
And [Taylor Elevator has] a ton of evidence that indicates
that three days before this slip and fall there was nothing on
the floor. It was inspected, there [were] no problems that
anybody could see.
On appeal, McNabb argues that the trial court erred in granting summary
judgment in favor of Taylor Elevator because Dr. Benedict's affidavit created a material
issue of fact.2 We agree.
"This court reviews de novo a trial court's decision on a motion for
summary judgment." Bernhardt v. Halikoytakis, 95 So. 3d 1006, 1008 (Fla. 2d DCA
2012). The burden is on the moving party "to come forward with competent evidence to
demonstrate the nonexistence of a material issue of fact." Id. Supporting or opposing
affidavits must set forth facts based on personal knowledge "as would be admissible in
evidence." Fla. R. Civ. P. 1.510(e); see also W. Edge II v. Kunderas, 910 So. 2d 953,
954 (Fla. 2d DCA 2005). Once a movant meets his or her initial burden, the burden
shifts to the opposing party to come forward with evidence to the contrary. First N. Am.
1
The trial court also granted summary judgment in favor of Bay Village.
That judgment is the subject of appeal number 2D15-5613.
2
McNabb also argues that the trial court erred in passing on the credibility
of Dr. Benedict. At one point in addressing the affidavit, the trial court described the
affidavit as "not credible." To the extent that the trial court was addressing the credibility
of Dr. Benedict, it erred. See Arce v. Haas, 51 So. 3d 530, 531 (Fla. 2d DCA 2010)
("When considering a motion for summary judgment, the trial court may not weigh the
credibility of witnesses or resolve disputed issues of fact.").
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Nat'l Bank v. Hummel, 825 So. 2d 502, 503 (Fla. 2d DCA 2002). In ruling on the
motion, the trial court is precluded from weighing the evidence. 4 Corners Ins., Inc. v.
Sun Publ'ns of Fla., Inc., 5 So. 3d 780, 784 (Fla. 2d DCA 2009). "[T]he merest
possibility of the existence of a genuine issue of material fact precludes the entry of final
summary judgment." Id. (alteration in original) (quoting Nard, Inc. v. DeVito Contracting
& Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000)).
Although Taylor Elevator produced evidence tending to show that the
Victaulic seal was not leaking at the time of its inspection three days before McNabb
fell, Dr. Benedict opined that the oil must have been leaking for four-and-a-half to
eighteen days prior to the accident. This conflicting evidence created a material issue
of fact. The trial court erred in finding that Dr. Benedict's affidavit was not based on any
facts. Dr. Benedict's conclusions as to the duration of the leak were based on a drip
test, Gulmy's observation of the drip rate, the depth of the oil as described by Gulmy,
and the dimensions of the machine room.3 Moreover, the trial court improperly weighed
the evidence when it discounted Dr. Benedict's affidavit and reasoned that Taylor
Elevator had a large amount of evidence indicating that the seal was not leaking at the
time of the inspection. Accordingly, we reverse the summary judgment entered in favor
of Taylor Elevator and remand to the trial court for further proceedings consistent with
this opinion.
Reversed and remanded.
3
The trial court did not fully assess Dr. Benedict's affidavit under the
Daubert standard. See § 90.702, Fla. Stat. (2015). We decline to engage in such an
analysis for the first time on appeal and express no opinion as to whether the affidavit
meets that standard.
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VILLANTI, C.J., and SALARIO, J., Concur.
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