LAWRENCE v. PEP BOYS

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Docket Number

Case No. 5D02-1057.

Attorney(S)

Raymond A. Haas, Paul L. Kutcher, Carol L. Castleberry, and Christopher B. Clark of Haas, Dutton, Capito, Blackburn, Lewis Longley, Tampa, for Appellant. Kendall B. Rigdon, Maria B. Vazquez, Rigdon, Alexander Rigdon, L.L.P., Orlando, for Appellee.

Judges

MONACO, J.

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Smart Summary

Factual and Procedural Background

Wyman Lawrence filed a trip-and-fall lawsuit against Pep Boys-Manny Moe Jack, Inc. ("Pep Boys") after allegedly tripping on a defective and uneven area of the parking lot at a Pep Boys store. During his deposition, Lawrence testified that he did not know if he would have noticed the uneven area if he had looked at it while walking, though he confirmed that nothing obstructed his view of the area. Pep Boys subsequently moved for summary judgment. Shortly before the hearing, Lawrence submitted an affidavit with photographs taken after the incident, asserting that late afternoon shadows made the hazardous area difficult to see. The trial court struck the affidavit, granted summary judgment for Pep Boys, and Lawrence appealed.

Legal Issues Presented

Whether the trial court erred in striking Lawrence’s affidavit as contradictory to his deposition testimony.
Whether a genuine issue of material fact existed regarding the open and obvious nature of the alleged dangerous condition on Pep Boys’ property.
Whether the landowner discharged its duty to maintain the property in a reasonably safe condition, thereby precluding summary judgment.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Volusia County v. Aberdeen of Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000)	Standard of review for summary judgment: de novo review and evaluation of genuine issues of material fact.	Guided the court’s standard for reviewing the summary judgment in this case.
Scheibe v. Bank of America, N.A., 822 So.2d 575 (Fla. 5th DCA 2002)	Summary judgment review standards; viewing evidence in the light most favorable to the non-moving party.	Supported reversal due to existence of factual dispute and proper consideration of affidavits.
City of Cocoa v. Leffler, 762 So.2d 1052 (Fla. 5th DCA 2000)	Burden on moving party to prove nonexistence of genuine issue of material fact.	Emphasized burden of proof on Pep Boys in moving for summary judgment.
Holl v. Talcott, 191 So.2d 40 (Fla. 1966)	Standard for summary judgment and burden of proof.	Reinforced procedural standards for summary judgment review.
Ellison v. Anderson, 74 So.2d 680 (Fla. 1954)	Litigants may not use affidavits to baldly contradict prior sworn testimony to avoid summary judgment.	Clarified that Lawrence’s affidavit did not baldly contradict his deposition, so it should not have been struck.
Ondo v. F. Gary Gieseke, P.A., 697 So.2d 921 (Fla. 4th DCA 1997), rev. denied, 707 So.2d 1126 (1998)	Prohibition against using affidavit to repudiate prior deposition testimony without explanation.	Supported the principle that affidavits must not starkly contradict prior testimony; court found no such contradiction here.
Arnold v. Dollar General Corp., 632 So.2d 1114 (Fla. 5th DCA 1994)	Same as above regarding affidavit contradictions.	Further precedent reinforcing the limits on affidavit use to avoid summary judgment.
Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA 1992), rev. denied, 604 So.2d 486 (Fla. 1992)	Definition and application of "open and obvious" doctrine in premises liability.	Referenced by trial court in granting summary judgment; appellate court found factual dispute on this issue.
Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990)	Open and obvious condition doctrine in premises liability.	Also cited in relation to the open and obvious issue, which the appellate court found disputed.
Johnson v. Circle K Corporation, 734 So.2d 536 (Fla. 1st DCA 1999)	Application of open and obvious doctrine to factual disputes.	Supported the appellate court’s conclusion that a genuine issue of fact existed regarding the condition.
Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001)	Landowner’s duty to maintain property in reasonably safe condition.	Referenced as an unresolved factual issue requiring jury determination.
Hogan v. Chupka, 579 So.2d 395 (Fla. 3d DCA 1991)	Landowner’s duty and premises liability principles.	Also cited to highlight unresolved issues of duty and breach requiring jury resolution.

Court's Reasoning and Analysis

The court reviewed the summary judgment de novo, applying the well-established standard that summary judgment is proper only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court emphasized that affidavits filed in opposition to summary judgment must not baldly contradict prior deposition testimony without explanation, citing Ellison and related cases. Here, the court found that Lawrence’s affidavit did not contradict his deposition testimony because he was never asked about shadows or lighting conditions, and his uncertainty in deposition did not conflict with his affidavit describing the effect of shadows on visibility.

The court further noted that the photographs attached to the affidavit were previously disclosed and not newly produced at the hearing. Considering the affidavit, a factual dispute existed as to whether the dangerous condition was open and obvious, undermining the trial court’s basis for summary judgment. Additionally, the record did not conclusively show whether Pep Boys fulfilled its duty to maintain a reasonably safe premises. These factual disputes necessitate jury resolution, precluding summary judgment.

Holding and Implications

The appellate court reversed the trial court’s summary judgment and remanded the case for further proceedings.

The direct effect of this decision is that the case will proceed to trial to resolve disputed factual issues, particularly regarding the open and obvious nature of the hazard and the landowner’s duty. The opinion does not establish new legal precedent but reiterates proper application of summary judgment standards and evidentiary rules concerning affidavits and prior testimony.

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WYMAN LAWRENCE, Appellant, v. PEP BOYS-MANNY MOE JACK, INC., Appellee.

MONACO, J.

Wyman Lawrence, appeals the final summary judgment rendered in favor of the appellee, Pep Boys-Manny Moe Jack, Inc. ("Pep Boys"), in this trip-and-fall case brought by Mr. Lawrence. Because the trial court erroneously failed to consider an affidavit filed by Mr. Lawrence when it granted the summary judgment, we reverse.

Summary judgments are reviewed de novo by an appellate court. See Volusia County v. Aberdeen of Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000); Scheibe v. Bank of America, N.A., 822 So.2d 575 (Fla. 5th DCA 2002). The standards to be used in the review of a summary judgment are familiar. In order to determine the propriety of a summary judgment, an appellate court must resolve whether there is any "genuine issue as to any material fact" and whether "the moving party is entitled to a judgment as a matter of law." Fla. R.Civ.P. 1.510(c). Generally, the moving party has the burden to prove conclusively the nonexistence of any genuine issue of material fact. City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966)). Accordingly, we must view the evidence contained in the record, including any properly asserted supporting affidavits, in the light most favorable to the non-moving party, and if the slightest doubt exists, the summary judgment must be reversed. See Scheibe.

Mr. Lawrence allegedly tripped on the grounds of a Pep Boys store, and was injured. During his deposition Mr. Lawrence testified that he did not know if he would have noticed the configuration of the depressed and uneven area of the parking lot where he tripped if he had looked at it while walking. His response was not pursued. He did testify, however, that there were no cars or objects blocking the area of concern from his vision. Thereafter, Pep Boys filed its motion for summary judgment.

A few days before the hearing on the motion Mr. Lawrence filed an affidavit attaching a number of photographs that had been discussed in an earlier deposition of another person, and which were taken of the critical area a few days after the incident at the same time of day. In his affidavit Mr. Lawrence asserted that the late afternoon shadows cast by nearby buildings made it difficult to see the faulty area of the parking lot where he tripped.

At the hearing on the motion for summary judgment the trial court granted Pep Boys' motion to strike the affidavit, concluding that it was contradictory to the previously given deposition testimony. A review of the deposition testimony and of the affidavit demonstrates, however, that the affidavit did not contradict the deposition.

It is well established that a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with new and starkly different sworn affidavit testimony, solely to avoid summary judgment. See Ellison v. Anderson, 74 So.2d 680 (Fla. 1954); Ondo v. F. Gary Gieseke, P.A., 697 So.2d 921 (Fla. 4th DCA 1997), rev. denied, 707 So.2d 1126 (1998); Arnold v. Dollar General Corp., 632 So.2d 1114 (Fla. 5th DCA 1994). More specifically, the supreme court held in Ellison that:

[W]hen met by a Motion for Summary Judgment [a litigant] should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.

74 So.2d at 681.

In the present case we cannot say that the affidavit of Mr. Lawrence "baldly" contradicted his earlier deposition testimony. He was never asked about shadows, or specific lighting conditions, and nothing that he said in his deposition is in direct or blatant contradiction to the affidavit. He was only asked if he could have seen the area that he asserts caused him to trip if he had looked, and he responded that he did not know. His response did no more than explain from Mr. Lawrence's perspective why he was unable to answer this question. Moreover, the photographs associated with the affidavit were part of the earlier discovery in the case, and were not suddenly or unexpectedly produced at the summary judgment hearing. Finally, if the affidavit had been considered by the trial judge, it would have presented a factual issue that would have precluded summary judgment.

We arrive at this result because it appears that the trial court granted the summary judgment when it determined that the defective condition in the parking lot where Lawrence allegedly tripped was "open and obvious" as that term is used in Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA), rev. denied, 604 So.2d 486 (Fla. 1992), and Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990). We conclude, however, that a genuine dispute exists with respect to whether the purported dangerous condition was open and obvious, particularly when the affidavit of Lawrence is factored into the equation. See Johnson v. Circle K Corporation, 734 So.2d 536 (Fla. 1st DCA 1999). We are likewise unable to tell from the record, as supplemented by the affidavit, whether the landowner discharged its duty to maintain its property in a reasonably safe condition. See Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001); Hogan v. Chupka, 579 So.2d 395 (Fla. 3d DCA 1991). These issues will require resolution by a jury.

REVERSED and REMANDED.

SAWAYA, J. and LAMBERT, B., Associate Judge, concur.