BOBBY CROSBY AND LILLIAN CROSBY, HIS WIFE, APPELLANTS,
v.
PAXSON ELECTRIC COMPANY, A FLORIDA CORPORATION, APPELLEE
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The Florida First District Court of Appeal reversed a summary judgment for Paxson Electric Company in a products liability case involving allegedly defective electrical installation. The court held that Paxson failed to meet its burden as the moving party to conclusively establish the absence of genuine issues of material fact.
Paxson failed to carry its burden as the moving party. The affidavit relied upon was insufficient because it merely referenced business records without attaching them, lacked an unequivocal assertion of personal knowledge, and did not meet the business records exception to the hearsay rule. Crosby's lack of personal knowledge at deposition did not prove that he would be unable to present evidence of Paxson's actual involvement in the installation.
[1] A party moving for summary judgment bears the burden of conclusively demonstrating the absence of genuine issues of material fact.
[2] An affidavit in support of summary judgment must be based on personal knowledge and cannot rely on hearsay.
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Join FLexlaw to unlock all legal intelligence“Paxson, as movant, had the burden of conclusively showing the absence of genuine issues of material fact placed in dispute by the pleadings.”
Establishes the legal standard for summary judgment motions and the moving party's burden of proof.
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Join FLexlaw to unlock all legal intelligenceBobby and Lillian Crosby brought suit against Paxson Electric Company for injuries allegedly caused by Paxson's defective installation of electric cab…
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ZEHMER, Judge.
We reverse the summary final judgment granted appellee Paxson Electric Company, the defendant in this action, for injuries allegedly caused by Paxon’s defective installation of certain electric cabling and conduit, and remand for further proceedings. Paxson, as movant, had the burden of conclusively showing the absence of genuine issues of material fact placed in dispute by the pleadings. Myrick v. St. Catherine Laboure Manor, Inc., 529 So. 2d 369 (Fla. 1st DCA 1988); Furlong v. First National Bank of Hialeah, 329 So. 2d 406 (Fla. 3d DCA 1976). Paxson failed to carry this burden.
Russo’s affidavit, upon which Pax-son relies, merely stated that “according to the records of FECO, such installation was performed for Kaiser by its subcontractor, United Riggers.” The records referred to are not attached to the affidavit, and the statement by the affiant does not amount to an unequivocal assertion based upon personal knowledge that it was United Riggers and not Paxson who actually installed the conduit and cables; thus, the affidavit is insufficient to carry appellee’s burden. See Rule 1.510(e), Fla.R.Civ.P.; Crovella v. Cochrane, 102 So. 2d 307, 310 (Fla. 1st DCA 1958). See also Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988) (The purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment).
Furthermore, an affidavit in support of summary judgment that does no more than indicate the documents that appear in the files and records of a business is not sufficient to meet the business records exception to the hearsay rule. Thomasson v. Money Store/Florida, Inc., 464 So. 2d 1309 (Fla. 4th DCA 1985).
The testimony of appellant Crosby at his pretrial deposition that he had no personal knowledge of who made the installation merely proved Crosby’s state of knowledge as of that date; it was not competent to prove that appellant, through his attorney, had no evidence and would be unable to prove that Paxson actually installed the cable and conduit as alleged.
REVERSED AND REMANDED.
ERVIN and WENTWORTH, JJ., concur.
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Suggs v. Elliott Allen and Trisha Allen, 563 So. 2d 1132 (Fla. 1st DCA 1990)…and it is insufficient to establish the non-existence of a genuine issue of material fact as to whether Keene’s and PCC’s products were used at those sites, see Roll v. Talcott, 191 So. 2d 40 (Fla.1966). See also Crosby v. Paxson Electric Company, 534 So. 2d 787, 789 (Fla. 1st DCA 1989). Appellees rely in part upon Harvey v. Bryant, 238 So. 2d 462 (Fla. 1st DCA 1970), wherein this court affirmed a directed verdict for the defendant in a slip and fall case where there was no evidence that the defendant home…
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Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2d DCA 1992)…8 So. 2d 388 (Fla. 2d DCA 1972) (attorney’s affidavit that he was familiar with his client’s records and that the records reflected certain information constituted hearsay and could not support summary judgment); see also Crosby v. Paxson Elec. Co., 534 So. 2d 787 (Fla. 1st DCA 1988); Thompson v. Citizens Nat. Bank of Leesburg, Florida, 433 So. 2d 32 (Fla. 5th DCA 1983). Furthermore, the conclusions of law stated in the affidavit did not satisfy the Peters’ burden. See Seinfeld v. Commercial Bank & Trust Co.,…
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CSX Transp., Inc. v. Pasco Cnty., 660 So. 2d 757 (Fla. 2d DCA 1995)…it is based on examination of reports that are not attached to the affidavit. Thus, the affidavit is based on hearsay and is not sufficient to support summary judgment. Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2d DCA 1992); Crosby v. Paxson Elec. Co., 534 So. 2d 787 (Fla. 1st DCA 1988); Topping v. Hotel George V, 268 So. 2d 388 (Fla. 2d DCA 1972). The County has, therefore, failed to establish by competent evidence that there is no genuine issue of whether construction on the railroad crossing had begun.1 The…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Crovella v. Cleland D. Cochrane, M.D., 102 So. 2d 307 (Fla. 1st DCA 1958)
- Furlong v. First Nat'l Bank OF Hialeah, 329 So. 2d 406 (Fla. 3d DCA 1976)
- Horst Anton Pawlik and Maria Anna Pawlik v. Barnett Bank OF Columbia Cnty., 528 So. 2d 965 (Fla. 1st DCA 1988)
- Myrick v. ST. Catherine Laboure Manor, Inc., 529 So. 2d 369 (Fla. 1st DCA 1988)
- Gibbs v. State, 529 So. 2d 369 (Fla. 1st DCA 1988)
- Danziger v. Westwood Gardens, Inc., 464 So. 2d 1309 (Fla. 4th DCA 1985)