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Florida Second DCA rejects trial court’s application of federal Celotex summary judgment standard

On February 12, 2020, in Wendel v. Trustees of Meese Hospital, No. 2D18-3149, the Florida Second DCA reversed a summary judgment entered by the trial court in favor of the defendant hospital in a premises liability case filed by a volunteer at the hospital who contracted a MRSA infection. The hospital argued that it was entitled to summary judgment because the plaintiff had "presented absolutely no evidence that his MRSA infection is causally connected to his volunteer work at Mease.” The trial court agreed, citing Greene v. Flewelling, 366 So. 2d 777, 781 (Fla. 2d DCA 1978), which held that in a negligence case the plaintiff has the burden of proof and "must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result." The trial court also relied on federal district court cases in which summary judgment had been granted because of a plaintiff's failure to make an adequate showing as to an element she would have to prove at trial. Those cases were decided under the summary judgment standard applicable to federal cases which does not require the moving party to conclusively negate an opposing party's claim before the burden shifts to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Rather, where the nonmoving party bears the burden of proof on an issue, the moving party need only point out to the court the absence of evidence to support the nonmoving party's case. Id. at 325. The nonmoving party must then "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 323. The Second DCA took issue with both precedents, distinguishing Greene v. Flewelling because that case involved a post-trial motion for judgment on a motion for directed verdict and noting that Florida Supreme Court has not adopted the federal Celotex standard. The Florida Supreme Court instead has held that on a motion for summary judgment, the party moved against has no burden to come forward with evidence unless the moving party conclusively proves the nonexistence of a genuine triable issue of fact. Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966). The Second DCA noted that the it has gone as far as to say that "even the slightest doubt that an issue might exist" renders summary judgment improper. Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979). The Second DCA observed that the Florida Supreme Court recently accepted jurisdiction in Wilsonart, LLC v. Lopez, SC19-1336, 2019 WL 5188546 (Fla. Oct. 15, 2019) to answer the certified question whether the federal Celotex standard should be adopted.

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