MIRIAN NAJEERA AND ELICEO GARCIA
v.
TROPICAL SUPERMARKET CORP.
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The appellate court reversed a summary judgment for the supermarket, finding that material issues of fact remained regarding a customer's slip and fall. The court held that the customer's affidavits, even if inconsistent with prior testimony, could create disputed issues if credible.
The appellate court held that material issues of fact remain in dispute. The court found that the plaintiffs' affidavits, which may have contained additional or slightly inconsistent information compared to prior testimony, were part of the record and could create disputed issues if credible.
[1] Material issues of fact in dispute preclude the entry of summary judgment.
[2] Affidavits filed in opposition to a motion for summary judgment are part of the record evidence to be considered by the trial court, even if a motion to strike them was n…
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Join FLexlaw to unlock all legal intelligence“we hold that material issues of fact remain in dispute, and reverse and remand for further proceedings.”
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Join FLexlaw to unlock all legal intelligenceMirian Najeera and Eliceo Garcia, plaintiffs, sued Tropical Supermarket Corporation after Najeera slipped and fell. The trial court entered a final su…
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EMAS, C.J.
Mirian Najeera and her husband, Eliceo Garcia, plaintiffs below, appeal final summary judgment entered by the trial court in favor of defendant Tropical Supermarket Corporation (“Tropical”). Following our de novo review, see Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002), we hold that material issues of fact remain in dispute, and reverse and remand for further proceedings.1 See Williams v. Ryta Food Corp., 45 Fla.
L. Weekly D440 (Fla. 3d DCA Feb. 26, 2020) (and cases cited therein); Newalk v. Fla. Supermarkets, Inc., 610 So. 2d 528 (Fla. 3d DCA 1992) (holding evidence that oil spots on floor appeared old was sufficient to allow the jury to conclude whether the substance had been on the floor long enough that the owner should have known about it); Teate v. Winn Dixie Stores, Inc., 524 So. 2d 1060 (Fla. 3d DCA 1988); Hodges v. Walsh,
Additionally, while it is true that plaintiffs’ affidavits contained additional averments on the issues in dispute, we disagree with Tropical that the plaintiffs, by these affidavits, so altered their position as to repudiate their earlier sworn testimony. See 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)).
553 So. 2d 221 (Fla. 2d DCA 1989). Reversed and remanded for further proceedings consistent with this opinion.
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Mirian Najeera and Eliceo Garcia v. Tropical Supermarket Corp., 45 Fla. L. Weekly D440 (Fla. 3d DCA 2020)
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Deshazior v. Safepoint Ins. Co., 45 Fla. L. Weekly D544 (Fla. 3d DCA 2020)
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Ifrain Benitez v. Lawson Indus., Inc. (Fla. 3d DCA 2023)
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Markowitz v. Helen Homes OF Kendall Corp., 826 So. 2d 256 (Fla. 2002)
- Teate v. Winn-Dixie Stores, Inc., 524 So. 2d 1060 (Fla. 3d DCA 1988)
- Willage v. The LAW Offs. OF Wallace & Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982)
- Newalk v. Fla. Supermarkets, Inc., 610 So. 2d 528 (Fla. 3d DCA 1992)
- Mirian Najeera and Eliceo Garcia v. Tropical Supermarket Corp., 45 Fla. L. Weekly D440 (Fla. 3d DCA 2020)
- Leon v. Gema Elda Leon, 553 So. 2d 221 (Fla. 2d DCA 1989)