MIGUEL LOPEZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JON LOPEZ, Appellant,
WILSONART, LLC AND SAMUEL ROSARIO, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Osceola County, Mike Murphy,
Bennett, of Hicks and Motto, P.A., Palm Beach Gardens, for
Michael McDonough, and Jacqueline M. Bertelsen, of Wilson
Elser Moskowitz Edelman & Dicker LLP, Orlando, for
Estate of Jon Lopez (the "Estate") timely appeals
the trial court's entry of final summary judgment in
favor of Wilsonart, LLC and Samuel Rosario (collectively,
"Appellees"). Under Florida's current summary
judgment standard, we are compelled to conclude that
conflicting evidence remained as to whether Rosario
negligently operated his vehicle, which could allow a jury to
apportion fault between the drivers. We therefore reverse the
summary judgment and remand for further proceedings.
January 17, 2017, Rosario was driving a freightliner truck
eastbound on a six lane highway towards an intersection in
Osceola County, Florida. The highway was divided evenly with
three lanes for westbound traffic and the other three lanes
for eastbound traffic. Rosario drove in the center lane of
the eastbound side. As the freightliner approached an
intersection, Jon Lopez, driving a pickup truck, crashed into
the rear of the freightliner, pushing the freightliner
forward into another vehicle. Lopez died as a result of the
injuries he sustained from the collision.
testified in his deposition that he traveled in the center of
the three eastbound lanes and began to slow down as he
approached the intersection when he felt an impact to the
rear of the freightliner. He testified that he was coming
close to a full stop, that his wheels were turned straight,
and that he intended to continue travelling straight at the
moment of the collision. In addition, Rosario's
freightliner was equipped with a forward-facing dashboard
camera. The footage from this dashcam shows the freightliner
travelling in the center lane of the eastbound lanes. As the
freightliner gradually came to a stop at a red light, it
experienced a large impact, forcing it to veer to the left
and crash into the car in front of it. It is undisputed that
this impact was the result of being struck from behind by the
pickup truck driven by Lopez and that this crash resulted in
response to Appellees' motion for summary judgment, the
Estate presented the deposition of David Mendez, a witness to
the collision, who testified that the freightliner suddenly
changed lanes just prior to impact, swerving from the center
lane to the left lane. The Estate also presented the
affidavit of its expert, who concluded that part of the
freightliner was in the right lane of the eastbound side when
the collision occurred. This conclusion was based, in large
part, on the deposition testimony of Mendez, the independent
their motion for summary judgment, Appellees argued that
because Lopez rear-ended the freightliner with his pickup
truck, he is presumed negligent under Florida law and that
Lopez was the sole cause of the collision. Appellees further
argued that Rosario's testimony and the corroborating
dashcam footage suggested that Lopez could not overcome the
presumption of negligence because the video flatly
contradicted Mendez's testimony, rendering it incompetent
evidence. The Estate responded, arguing that its expert's
affidavit created a genuine issue of material fact as to
whether Rosario kept his vehicle in a single lane and that
this conflicting evidence created a question of material fact
as to Rosario's negligence in operating the freightliner.
After a hearing on Appellees' motion, the trial court
granted the summary judgment and this appeal followed.
considering "an appeal from the entry of a summary final
judgment, an appellate court should indulge all proper
inferences in favor of the party against whom summary
judgment was sought." Hervey v. Alfonso, 650
So.2d 644, 646 (Fla. 2d DCA 1995) (citing Humphrys v.
Jarrell, 104 So.2d 404 (Fla. 2d DCA 1958)). "If the
record reflects even the possibility of a material issue of
fact, or if different inferences can be drawn reasonably from
the facts, that doubt must be resolved against the moving
party and summary judgment must be denied." Doe v.
N. Okaloosa Med. Ctr., Inc., 802 So.2d 1202, 1203 (Fla.
1st DCA 2002) (internal quotations removed).
summary judgment should not be granted unless the facts are
so crystallized that nothing remains but questions of
law." Moore v. Morris, 475 So.2d 666, 668 (Fla.
1985). Succinctly put, "[w]hen acting upon a motion for
summary judgment, if the record raises the slightest doubt
that material issues could be present, that doubt must be
resolved against the movant and the motion for summary
judgment must be denied." Jones v. Dirs. Guild of
Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991).
case, the trial court erred when it concluded that the video
evidence "blatantly contradicts the eye witness
testimony and the opinion of plaintiff's expert."
The court relied on Scott v. Harris, 127 S.Ct 1769,
1776 (2007) (applying the very different federal summary
judgment standard and concluding that no genuine issue of
material fact existed where video footage blatantly
contradicted motorists's version of events) and Wiggins
v. Florida Department of Highway Safety and Motor
Vehicles, 209 So.3d 1165 (Fla. 2017) (holding that in
first-tier certiorari review of driver's license
suspension hearing- not summary judgment- circuit court does
not err where it rejects police officer testimony, which is
refuted by video evidence). Although both Scott and
Wiggins stand for the proposition relied upon by the
trial judge-that clear, objective, neutral video evidence can
be so contradictory to the opposing party's evidence so
as to render that evidence incompetent-it was error to apply
those holdings to a summary judgment proceeding under
Florida's much more restrictive standard. In fact, by
finding that the video evidence, as compelling as it was,
completely negated both the independent eyewitness testimony
as well as the Estate's expert's opinion, the trial
court improperly weighed competing evidence on material
facts. "In ruling on a motion for summary judgment, the
court may neither adjudge the credibility of the witnesses
nor weigh the evidence." Sierra v. Shevin, 767
So.2d 524, 525 (Fla. 3d DCA 2000). "A trial court may
not . . . consider the weight of conflicting evidence . . .
in determining whether a genuine issue of material fact
exists in a summary judgment proceeding." Juno
Indus. Inc. v. Heery Int'l, 646 So.2d 818, 822 (Fla.
5th DCA 1994).
the video evidence showing Rosario's driving pattern is
both compelling that Appellees were not negligent and
directly contradictory to the Estate's evidence in
opposition to the summary judgment motion. However, in the
event this case survives Appellees' inevitable motion for
directed verdict at trial, then it would be the jury's
job to assess the credibility of the Estate's witnesses
as to the cause of the accident and to weigh and compare
Appellees' conflicting evidence, including the videotape.
By granting final summary judgment, the trial court
completely negated the Estate's evidence based on the
perceived strength of Appellees' ...