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McNabb v. Bay Village Club Condominium Association, Inc.

Florida Court of Appeals, Second District

March 29, 2017

JONATHAN McNABB, Appellant,
v.
BAY VILLAGE CLUB CONDOMINIUM ASSOCIATION, INC.; TAYLOR ELEVATOR CORP.;andD.G. SUITOR & ASSOCIATES, INC., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Lee County; Elizabeth V. Krier, Judge.

          Thomas B. Deminico of Lusk, Drasites & Tolisano, P.A., Cape Coral, for Appellant.

          Kelly Fantetti and Vanessa Ross of Groelle & Salmon, P.A., Sarasota, for Appellee Bay Village Club Condominium Association, Inc.

          No appearance for remaining Appellees.

          SILBERMAN, Judge.

         Jonathan McNabb seeks review of a final summary judgment in favor of Bay Village Condominium Association, Inc., in this slip and fall case. The trial court determined as a matter of law that Bay Village did not have notice of the oil leak that allegedly caused the accident. We reverse because the court erroneously refused to consider an affidavit that created a genuine issue of material fact.

         McNabb filed a complaint for injuries he allegedly sustained when he slipped and fell on a foreign substance on Bay Village's premises. McNabb alleged that Bay Village owed McNabb a duty to keep the premises safe, to keep the premises free from debris, and to warn of any dangerous conditions. Bay Village moved for summary judgment based on its defense that it did not have notice of the dangerous condition. In support of its motion, Bay Village presented the following deposition testimony.

         McNabb testified that he slipped on what he assumed was hydraulic oil in a hallway outside the elevator on the ground floor of a condominium building. He did not see the oil before he slipped, and he did not know how long it had been on the floor. After he fell, he noticed oil seeping from under the door of the machine room next to the elevator into the hallway. It had made a puddle that was about four or five feet wide.

         Karyn McNabb and Judith Maurer testified that they saw oil in the hallway when they returned home a short while after the accident. Karyn reported the oil to Brad Brian, who performed maintenance for Bay Village. Brian called Taylor Elevator Corporation, and Taylor sent out elevator technician Darren Gulmy a few hours later. Gulmy testified that there was oil about a quarter of an inch deep in the machine room and some had leaked into the hallway to form a puddle. Gulmy concluded that a leaking Victaulic seal on a pipe in the machine room was the source of the oil. He calculated that the pipe was leaking oil at a rate of about one drip every two seconds.

         None of these people saw any footprints or marks in the oil which would indicate that it had been walked through. And none of the professionals could determine when the leak started or how long it would have taken for the leak to get from the machine room into the hallway where McNabb fell. Three days prior to the accident, the elevator had been inspected by inspector Stanley Rigby and Taylor Elevator's elevator technician Roger Hicks. They did not see any leaks in the machine room.

         Based on this testimony, Bay Village argued it was entitled to summary judgment because there was no evidence regarding how long the oil had been in the hallway. McNabb did not dispute Bay Village's assertion that it did not have actual knowledge of the oil leak. The only disputed issue was whether Bay Village had constructive knowledge of the oil leak.

         In opposition to Bay Village's motion for summary judgment, McNabb presented the affidavit of Dr. Benedict, a professional engineer with a Ph.D. in mechanical engineering. Dr. Benedict relied on (1) Gulmy's testimony describing the extent and source of the oil leak, (2) Brian's testimony about the call from Karyn McNabb, (3) the testimony of Hicks and Rigby regarding code violations they discovered, (4) service records describing the leak and the condition of the equipment on the evening of the incident, and (5) his personal inspection of the machine room and hallway.

         Dr. Benedict relied on Gulmy's estimate that the depth of the oil in the machine room was 1/4 inch to conclude that the oil had been leaking for approximately eighteen days. He also testified that even if the depth of the oil was closer to 1/16 inch, the oil had been leaking for approximately 4.5 days. At any rate, Dr. Benedict ...


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