HELEN KOPACZ, APPELLANT,
v.
JACK ECKERD CORPORATION, ETC., APPELLEE
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PER CURIAM
This is an appeal from a summary judgment in a personal injury case.
The trial court erred in striking an affidavit of the plaintiff which affidavit contained statements different from those she earlier made in a deposition. The affidavit was filed to defend against the defendant’s motion for summary judgment. Appellee urges us to apply the rule in Ellison v. Anderson, 74 So. 2d 680 (Fla.1954) which says a party cannot defend against a summary judgment by filing an affidavit to “baldly repudiate [her] previous deposition so as to create a jury issue.” It is our considered judgment that the “Ellison Rule” is not applicable here because a full reading of the deposition of the plaintiff shows she very likely was confused and unsure of her answer and thus should not be held strictly to it by granting summary disposition of her claim. Croft v. York, 244 So. 2d 161 (Fla. 1st DCA 1971), cert. denied, 246 So. 2d 787 (Fla.1971).
The affidavit is sufficient to raise a genuine issue of a material fact and thus prevents a summary judgment. The judgment is reversed and this cause remanded for trial.
REVERSED. DAUKSCH and GOSHORN, JJ., concur. SHARP, C.J., concurs in result only.
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Lesnik v. Duval Ford, LLC, 185 So. 3d 577 (Fla. 1st DCA 2016)…her.”); Streeter v. Bondurant, 563 So. 2d 729, 733 (Fla. 1st DCA 1990) (“Dr. LoCjcero’s deposition testimony and his.affidavit are not in direct contradiction; thus, the rule of Ellison v. Anderson has no application.”); Kopacz v. Jack Eckerd Corp., 542 So. 2d 469, 469 (Fla. 5th DCA 1989) (“ ‘Ellison Rule’ is not applicable here because a full reading of the deposition of, the plaintiff shows she very likely was confused :and unsure of her answer and thus should not be held strictly to it by granting summary…
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Bell v. Bailey, 639 So. 2d 1063 (Fla. 3d DCA 1994)…ise expressly so state. The plaintiffs affidavit, at least arguably, supplemented her deposition testimony and did not expressly contradict it. Accordingly, the trial court erred in striking the plaintiffs affidavit. See Kopacz v. Jack Eckerd Corp., 542 So. 2d 469 (Fla. 5th DCA 1989); Willage v. Law Offices of Wallace & Breslow, P.A., 415 So. 2d 767, 769 (Fla. 3d DCA 1982); Borders v. Liberty Apartment Corp., 407 So. 2d 232 (Fla. 3d DCA 1981), rev. denied, 417 So. 2d 330 (Fla.1982). The final summary judgme…
Authorities Cited
- Ellison v. Johnson Anderson, 74 So. 2d 680 (Fla. 1954)
- Croft v. York, 244 So. 2d 161 (Fla. 1st DCA 1971)
- Forsyth v. Nat'l Airlines, Inc., 246 So. 2d 787 (Fla. 1971)