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Florida Third DCA finds that additional allegations in plaintiff’s summary judgment affidavit beyond allegations contained in deposition testimony did not invalidate affidavit

On April 29, 2020, in Najeera v. Tropical Supermarket Corp., No 3D18-2255, the Florida Third DCA reversed a summary judgment entered by the trial court in a premises liability slip and fall case, concluding that there were sufficient issues of material fact to preclude summary judgment. The Third DCA rejected the defendant’s argument that since the plaintiffs’ affidavits contained additional averments that were not contained in their sworn testimony, the affidavits should be disregarded. The Court cited Williams v. Ryta Food Corp., 45 Fla. L. Weekly D440 (Fla. 3d DCA Feb. 26, 2020) (reaffirming that while a party, after having given prior sworn testimony in the case, may not subsequently change that testimony to create a disputed issue on the opponent’s motion for summary judgment, “a party may give a subsequent affidavit for the purpose of explaining testimony given in a prior affidavit or deposition, so long as the explanation is credible, even though it creates an issue on the opponent’s motion for summary judgment.”) (quoting Willage v. Law Offices of Wallace and Breslow, P.A., 415 So. 2d 767, 769 (Fla. 3d DCA 1982)).