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Florida Third DCA reverses trial court’s summary judgment for defendant in slip and fall case, finds that trial court erred in rejecting affidavit from plaintiff’s witness containing new allegations that did not “baldly repudiate” affiant’s prior deposition testimony

On February 26, 2020, in Williams v. Ryta Food Corp, No. 3D19-0126, the Florida Third DCA reversed a summary judgment entered by the trial court in favor of the defendant supermarket in a premises liability “slip and fall” personal injury case. The plaintiff alleged that she fell in a puddle of water at the supermarket. The defendant contended in its summary judgment motion that it lacked prior notice of a purportedly dangerous condition, and therefore did not have constructive notice of the condition as required to establish liability under Fla. Stat. § 768.0755(1) (2019). The plaintiff submitted an affidavit from her sister attesting that after the fall she observed a pool of water on the ground in the vicinity of the cooler which was elongated and had track marks or footprints leading both to and from the water which suggested traffic by multiple persons. However, the trial court disregarded the affidavit and entered summary judgment for the defendant on the basis that the affidavit was inconsistent with the sister’s prior deposition testimony. The Third DCA noted that this was not in fact the case, because there was no discussion in the deposition testimony of the shape or length of the spill or the absence or presence of marks. On these facts, the Third DCA concluded that the sister’s affidavit did not “baldly repudiate” her former deposition testimony, quoting from Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 583 (Fla. 1st DCA 2016). The Third DCA also noted that the video surveillance demonstrated that the area in question had not been inspected twenty minutes prior to the incident, and cited McCarthy v. Broward Coll., 164 So. 3d 78, 81 (Fla. 4th DCA 2015) (“evidence that no inspection had been made during a particular period of time prior to an accident may warrant an inference that the dangerous condition existed long enough so that the exercise of reasonable care would have resulted in discovery.”)

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