MILDRED ARNOLD, APPELLANT,
v.
DOLLAR GENERAL CORPORATION, ETC., ET AL., APPELLEES

Fla. 5th DCA | 1994-03-11
No. 93-731
GRIFFIN and THOMPSON, JJ., concur.
632 So. 2d 1144 Florida District Court of Appeal, Fifth District (1994) Caution
Cited by 9 cases

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Holding

The court held that the plaintiff's affidavit, which clarified her deposition testimony regarding the cause of her fall, did not blatantly contradict her prior statements and raised a genuine issue of material fact, precluding summary judgment.


Headnotes

[1] A party's affidavit will not be permitted to repudiate prior deposition testimony to avoid summary judgment unless the contradiction is blatant or bald and lacks a credib…

[2] A plaintiff's professed lack of knowledge in a deposition regarding facts contributing to an injury does not preclude later recollection in an affidavit, especially when…

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Facts & Procedural History

Arnold sued Dollar General for personal injuries sustained from tripping and falling on a sidewalk after leaving the store. The trial court granted su…

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Opinion of the Court
W. SHARP, Judge.

W. SHARP, Judge.

Arnold appeals from a final summary judgment entered against her in favor of Dollar General Corporation, the defendant below. Arnold sued Dollar General for personal injuries she received when she tripped and fell on the sidewalk, after leaving the store. The trial judge granted summary judgment in favor of Dollar General on the ground that the depositions given by Arnold and her daughter, Crowell, contradicted their affidavits filed in opposition to the summary judgment motion. It also refused to give any credence to an affidavit filed by Melody, Arnold’s eleven-year-old granddaughter. We reverse.

The deposition of Arnold is not as clear and emphatic as her later-filed affidavit, but we cannot say it is “blatantly” or “baldly” contradictory, either. See Ellison v. Anderson, 74 So. 2d 680 (Fla.1954); Cary v. Keene Corp., 472 So. 2d 851 (Fla. 1st DCA), rev. denied, 480 So. 2d 1294 (Fla.1985). In her deposition, Arnold testified she did not know what caused her to trip and fall outside the Dollar Store. She could not remember the circumstances of her fall. She said she fell on the sidewalk, shortly after leaving the entrance door to the store.

She also testified she noticed, before she and her daughter and granddaughter went into the store, it was “dirty” near the entrance. She saw trash people had thrown down out there. She remembered seeing paper cups and an old potato chip bag. When they went into the store, they mentioned to the employees inside how dirty it was.

Arnold later filed an affidavit in opposition to the summary judgment in which she alleged she had seen a lot of trash and debris on the sidewalk in front of the entrance to the store. They told the store clerks about it. They were in the store about thirty-five minutes. She left to go outside to wait for her daughter. She fell because her feet got hung up on or tangled in the trash and debris on the sidewalk.

Arnold’s granddaughter Melody also filed an affidavit stating the same facts. She had seen the trash outside the store. Her mother told the clerk about it. She left the store first and waited outside. She saw her grandmother come out of the store, step down onto the sidewalk, and fall. Melody said Arnold fell because her feet got hung-up or tangled in the trash or debris, “specifically, a cup or potato chip bag lying there on the sidewalk.”

It is well established that a party to a lawsuit will not be allowed to repudiate his or her prior deposition testimony by an affidavit executed by that party or by another person, in order to avoid a summary judgment. Ellison v. Anderson. Any such contradiction must be given a credible explanation in the affidavit, or in the record itself. Cary v. Keene; Jordan v. State Farm, Mutual Insurance Co., 515 So. 2d 1317 (Fla. 2d DCA 1987).

In this case, Arnold’s affidavit does not “blatantly” contradict her deposition testimony. A reading of the deposition indicates Arnold is sixty-four years old, and has had memory problems since she was in a nearly fatal automobile accident in May of 1991, two months prior to her fall in this case. At the time of the deposition, she could not recall why she fell or anything about her fall. But she did testify in the deposition there was trash on the sidewalk outside the store and that she or her daughter had complained about it.

As in the Ellison case, the plaintiff (Arnold) professed a lack of knowledge-in her deposition about facts which could have contributed to her injuries. In Ellison, the plaintiff, a passenger on a bus, said she did not know how fast the bus was going, but it was not “too fast.” The court held that an affidavit executed by an eyewitness that the bus was exceeding the speed limit, created an issue of fact, and that a summary judgment in favor of the bus owner should be reversed.

Similarly, in Cary, the plaintiff testified in his deposition he did not recall what asbestos products the defendant Keene Corporation manufactured that he had used in his job. Keene Corporation moved for summary judgment in its favor on the ground the plaintiff could not prove it was liable for the plaintiffs injuries due to use of its asbestos products. In opposition to the summary judgment, Cary filed an affidavit listing Keene’s products he had used. He also filed a memorandum of law to explain that after the deposition, he carefully reviewed a list of Keene’s products and was able to recall and identify ones he had used. The court reversed a summary judgment in Keene’s favor. Although Arnold has filed no memorandum of law to explain why she now recalls tripping on the trash outside the Dollar General, the contradiction between her affidavit and deposition are not that blatant or bald. Hers is more a sin of omission than commission. She could not then recall why she fell. However, she did explain she had been in a serious automobile accident two months before the fall at the Dollar Store, which damaged her memory, and she apparently suffered further impairment after the fall.

This is a close case. However, it is this state’s policy to favor resolution of disputes on the merits rather than by battle of affidavits and depositions.1 We think this case was improperly disposed of by summary judgment.

REVERSED and REMANDED.

GRIFFIN and THOMPSON, JJ., concur. . Haynes v. Littleford, 173 So. 2d 477, 479 (Fla. 2d DCA 1965); Harrison v. American Fire & Casualty Co., 163 So. 2d 324, 327 (Fla. 2d DCA 1964); Forston v. Atlantic Engineering & Manufacturing Corp., 143 So. 2d 364, 368 (Fla. 2d DCA 1962); Nance v. Ball, 134 So. 2d 35, 37 (Fla. 2d DCA 1961).


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Citator

Cited By

  • Wyman Lawrence v. PEP Boys-Manny MOE & Jack, Inc., 842 So. 2d 303 (Fla. 5th DCA 2003)
    …t 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 1144 (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 depositio…
  • Soler v. Secondary Holdings, Inc., 771 So. 2d 62 (Fla. 3d DCA 2000)
    …redible explanation for discrepancies between earlier unequivocal testimony and later inconsistent testimony, that the later testimony will be stricken. See Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981). See also Arnold v. Dollar Gen. Corp., 632 So. 2d 1144 (Fla. 5th DCA 1994)(party to lawsuit will not be allowed to repudiate his or her prior deposition testimony by affidavit executed by that party or by another person, without a credible explanation given in the affidavit or in record itself); Cary v.…
  • Lesnik v. Duval Ford, LLC, 185 So. 3d 577 (Fla. 1st DCA 2016)
    …; Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So. 2d 303, 305 (Fla. 5th DCA 2003) (error to faji to consider plaintiffs affidavit explaining, why he fell despite not providing, this explanation in prior deposition); Arnold v. Dollar Gen. Corp., 632 So. 2d. 1144, 1145 (Fla. 5th DCA 1994) (plaintiffs deposition “is not as clear [*584] and emphatic as her later-filed affidavit, but we cannot say it is ‘blatantly' or ‘baldly’ contradictory, either.”); Streeter v. Bondurant, 563 So. 2d 729, 733 (Fla. 1st DCA 19…

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