Video Evidence Sets the Stage for Florida’s Highest Court to Expand Summary Judgment Opportunities
Video Evidence Sets the Stage for Florida’s Highest Court to Expand Summary Judgment Opportunities
What is at Stake?
One of the most important differences between the Florida and Federal judicial systems is the treatment of summary judgment motions. The distinction arises from differing judicial attitudes rather than the wording of the Federal and Florida summary judgment rules. Florida Rule of Civil Procedure 1.510(c) requires summary judgment when there is “no genuine issue as to any material fact,” while Federal Rule of Civil Procedure 56(a) permits summary judgment when there is “no genuine dispute as to any material fact.” So the only textual difference between the two standards is that Rule 1.510 uses “issue” while Rule 56 uses “dispute.” It is hard to discern any meaningful difference between the two words. Nevertheless, the Federal and Florida courts’ differing interpretations of these virtually identical rules have opened a deep fissure between the two judicial systems where the identical summary judgment motion may be winnable in Federal court but likely is destined for defeat in state court.
In 1966, Florida’s Supreme Court emphasized that summary judgement is “necessarily in derogation of the constitutionally protected right to trial.” Holl v. Talcott, 191 So. 2d 40, 48 (Fla. 1966). By contrast, in 1986, the United States Supreme Court chose to emphasize that summary judgement is “regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal citations omitted).
As a general proposition, the Federal and Florida courts agree that trial judges cannot weigh conflicting evidence when ruling on a summary judgement motion. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). But they have created dissimilar criteria for assessing whether a genuine factual issue or dispute exists. In Florida state court, summary judgement will be denied if the record reflects the mere possibility or the slightest doubt that a genuine issue of material fact exists. Miguel Lopez, as personal representative of the Estate of Jon Lopez v. Wilsonart, LLC and Sam Rosario, 275 So.3d 831, 833 (Fla. 5th DCA 2019), rev. granted, 2019 WL 5188546 (Fla. October 15, 2019). Indeed, the nonmoving party can defeat a summary judgment motion with just a “scintilla of appreciable evidence.” Carnes v. Fender, 936 So. 2d 11, 14 (Fla. 4th DCA 2006).
In the Federal arena, the United States Supreme Court has charted a different course, disavowing the notion that “a scintilla of evidence” is sufficient to defeat a summary judgment motion. Anderson, 477 U.S. at 251. The nonmoving party “must do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment may be granted where the nonmoving party’s evidence is “merely colorable” or “not significantly probative.” Anderson, 477 U.S. at 249-250. And “if the factual context renders [the] claim implausible … [the plaintiffs] must come forward with more persuasive evidence to support their claim than would otherwise be necessary.” Matsushita Elec. Indus. Co, 475 U.S. at 587. A Federal judge may grant summary judgment “where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Id. (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
Presumably, most plaintiffs’ attorneys favor the current standard in Florida state court which, with very rare exceptions, allows plaintiffs to survive summary judgment motions and encourages defendants to settle claims to avoid the risk and expense of a jury trial. Defense attorneys recognize that the Federal standard is an opportunity to eliminate cases that have little supporting evidence, which is one reason why most defendants remove cases to federal court any time they have a basis for Federal removal jurisdiction. Lawyers who handle business litigation may have a more nuanced view because the difference between a plaintiff and defendant in a business dispute often is simply determined by which party sues first. For those who feel reforms are needed to minimize frivolous litigation, the summary judgment standard is an attractive target.
Florida’s Supreme Court: Conservative and Impatient for Change
Florida’s Governor appoints the state’s Supreme Court justices, and Republicans have held the Florida governorship for 21 straight years. Ideologically conservative justices are now in firm control of the state’s highest court, and are not shy about quickly changing Florida’s litigation landscape. Just last year, the Court reversed a 2017 decision by a previous Supreme Court panel and replaced the outdated Frye standard for admissibility of expert testimony with the Daubert standard used in federal court. See In Re: Amendments to the Florida Evidence Code, 278 So. 3d 551 (Fla. 2019). The Supreme Court reasoned that adopting the Daubert standard “will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.” Id. at 554.
As the Court’s ideological shift reaches its apex, an even more dramatic opportunity to align Florida’s judicial system more closely with the Federal courts has landed at the Court’s doorstep. In Miguel Lopez, as personal representative of the Estate of Jon Lopez v. Wilsonart, LLC and Sam Rosario, 275 So.3d 831 (Fla. 5th DCA 2019), rev. granted, 2019 WL 5188546 (Fla. October 15, 2019), the Court seems poised to eliminate the gap between Florida’s extremely rigid summary judgment standard and the Federal courts’ more flexible standard. Given the Court’s appetite for bold moves, now may be a good time to develop contingency plans for summary judgment efforts in Florida state court cases.
Crash Video Creates Opportunity for Change
With the ubiquitous presence of video recordings in our daily lives, it should be no surprise that the impetus for revisiting Florida’s summary judgment standard arises from a conflict between a dash cam video of a motor vehicle accident, eyewitness testimony and expert testimony. In Lopez, the video supported the Defendants’ version of the accident and the trial judge concluded that it negated eyewitness and expert testimony presented by the Plaintiff. The trial judge granted summary judgment and Plaintiff appealed. Feeling restricted by Florida’s rigid summary judgment standard, which forbids a judge from weighing conflicting evidence, Florida’s Fifth District Court of Appeal reversed the entry of summary judgment. However, it asked the Florida Supreme Court to decide whether an exception should be created for video evidence, certifying the issue as having great public importance. The Supreme Court accepted the District Court’s invitation to review the case, but went even further than the certified question. On its own initiative, the Supreme Court requested legal briefing on whether to abandon Florida’s extremely rigid summary judgment standard and adopt the more flexible standard used in Federal court.
The Summary Judgment Evidence and the Trial Court’s Ruling
Jon Lopez died when his Ford F-250 pick-up truck smashed into the rear of a Freightliner box truck driven by Samuel Rosario. Lopez’ estate sued Rosario and Rosario’s employer (Wilsonart) alleging that Rosario’s negligence contributed to Lopez’ death. Rosario testified in deposition that he was driving in the center lane of a three lane eastbound highway and Lopez struck his vehicle from behind as he slowed to stop at an intersection. Lopez, 275 So.3d at 832. The impact pushed the Freightliner partially into the left lane where it struck a third vehicle. Id. This testimony was corroborated by video from the Freightliner’s forward facing dashboard camera. Id. (The dash cam video can be viewed at https://safeYouTube.net/w/pfRI.) However, an independent eyewitness to the collision testified in deposition that the Freightliner suddenly swerved from the center lane to the left lane immediately prior to the accident. Id. at 833.
Defendants moved for summary judgment based upon Rosario’s deposition testimony and the dashboard video. They pointed out that there is a rebuttable presumption that the rear driver in a rear end collision was negligent, and argued that the eyewitness testimony does not overcome that presumption because the dash cam video establishes the testimony is patently false. Id. In addition to the eyewitness testimony, the Lopez estate opposed the motion with an expert affidavit opining that the right side of the Freightliner was in the right lane of the highway when the collision occurred. Id. The Estate argued that the eyewitness testimony and expert affidavit created a genuine factual dispute about whether Rosario contributed to the crash by failing to keep his truck within a single lane and so summary judgment was improper. Id.
The trial court viewed the video at the hearing and concluded that it completely contradicted the eyewitness testimony and Plaintiff’s expert’s opinion. Id. Thus, the court granted summary judgment in favor of Defendants. In doing so, it relied on the United States Supreme Court decision in Scott v. Harris, 550 U.S. 372 (2007), which ruled that no genuine issue of material fact existed where video footage contradicted the motorist’s version of events. The trial court also relied on the Florida Supreme Court decision in Wiggins v. Florida Department of Highway Safety and Motor Vehicles, 209 So. 3d 1165 (Fla. 2017), which concluded that a circuit court properly rejected a police officer’s testimony on the grounds that video evidence refuted it. The Estate appealed to Florida’s Fifth District Court of Appeal.
Appellate Court Reverses Summary Judgment but Requests Supreme Court Review
When reviewing the summary judgment order, the Fifth District Court of Appeal acknowledged long-standing Florida precedent that “summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Lopez, 275 So. 3d at 833 (citing Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). If the record reflects even the slightest possibility that a disputed material fact exists, a jury must decide the case. Id. Moreover, a Florida trial judge cannot weigh conflicting evidence or evaluate witness credibility when ruling on a summary judgment motion. Id. at 834. Accordingly, the Fifth District Court ruled that the trial court improperly weighed competing evidence when it granted summary judgment. Id.
The appellate panel conceded that the decisions in Scott, 550 U.S. 372 and Wiggins, 209 So. 3d 1165 support the proposition that “clear, objective, neutral video evidence can be so contradictory to the opposing party’s evidence so as to render that evidence incompetent.” Lopez, 275 So.3d at 834. However, it found the trial court erred when it applied the holdings to Florida’s summary judgment standard. Id. The Fifth District Court distinguished the Scott decision because, unlike Florida state court judges, a Federal judge is permitted to assess the evidence and grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Id. at 833-834 and fn. 1. It distinguished the Wiggins decision because it involved first-tier certiorari review by a circuit court of a driver’s license suspension hearing rather than summary judgment. Id. at 834.
Nevertheless, the Fifth District panel askedthe Florida Supreme Court to consider an exception to Florida’s summary judgment standard when video “completely negates or refutes any conflicting evidence” offered in opposition to a summary judgment motion. Id.
Supreme Court Seizes Opportunity to Rethink Summary Judgment Standard
In granting review, Florida’s Supreme Court ordered the parties to include in their briefs an analysis of the following questions: “Should Florida adopt the summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)? If so, must Florida Rule of Civil Procedure 1.510 be amended to reflect any change in the summary judgment standard?” Wilsonart, LLC, et. al. v. Miguel Lopez, etc., 2019 WL 5188546 (Fla. October 15, 2019). Shortly after the Florida Supreme Court accepted jurisdiction and requested briefing on the summary judgment standard in Lopez, a judge on Florida’s Third District Court of Appeal argued that Florida’s summary judgment standard has been distorted and urged the Florida Supreme Court to “bring Florida in line with the best practices adopted long ago by most other jurisdictions in the nation.” Mobley v. Homestead Hospital, Inc., 291 So. 3d 987, 992-994 (Fla. 3d DCA 2019) (concurring opinion by Justice Logue).
The Lopez parties have filed their briefs, and the Supreme Court scheduled oral argument for October 8, 2020. (Mark it on your calendar and view the oral arguments at https://wfsu.org/gavel2gavel/) By expressing an intention to revisit the summary judgment standard and possibly adopt the Federal standard, the Court triggered an onslaught of amicus curiae (“friend of the court”) petitions. Ultimately, ten organizations filed amicus curiae briefs. Seven argued in favor of Rosario and Wilsonart, while three advocated that any potential change to Florida’s summary judgment standard should go through a Florida Bar rules committee process before being decided by the Supreme Court. The number of amicus curiae participants is a testament to the fact that adoption of the Federal standard will mean the elimination of more cases before trial than occurs under the existing standard.
The Lopez Estate Attempts to Reframe the Issues
The parties’ Supreme Court briefing includes an intense debate over the nature of the Estate’s evidentiary arguments in the summary judgment hearing and whether the Fifth District accurately framed the conflicting evidence. Moreover, both sides’ briefs reference a deposition of Plaintiff’s expert which occurred after the summary judgment hearing but before the trial court entered summary judgment. The expert admitted in deposition that the Freightliner was positioned straight and not angled, and no part of the truck was in the left lane before the impact. Thus, it is not surprising that the Lopez estate has virtually abandoned any reliance on the eyewitness testimony that the Freightliner veered into the left lane just before the crash. Instead, the Estate focuses on the portion of the eyewitness testimony which cannot be refuted by the Freightliner’s forward facing dash cam video – that Lopez allegedly attempted to veer into the right lane immediately before crashing into the rear of the Freightliner. The Estate also stresses that its expert relied on the dash cam video for his opinion that the Freightliner was partially in the right hand lane. The expert opined that if the Freightliner had not been partially in the right hand lane, Lopez could have completed his move into the right lane without striking the Freightliner.
Defendants have responded to the Estate’s realignment of its arguments by stressing that the expert admitted in deposition that the Freightliner’s alleged lane straddling did not result from a sudden maneuver and was visible to Lopez well before he crashed into the Freightliner. Accordingly, Defendants argue that even if the Freightliner was partially in the right lane, this does not overcome the presumption that Lopez’ negligence was the sole cause of the crash.
The Estate arguably made a tactical error in the summary judgment hearing by simultaneously focusing on the expert’s opinion that the Freightliner was partially in the right lane and the seemingly contradictory eyewitness testimony that the Freightliner veered into the left lane. The judges’ questions at the October 8 oral argument may be an early indication of whether the Estate’s attempt to reframe its arguments is enough to sway a conservative court seemingly eager to address the appropriate standard for summary judgment.
Be Prepared to Adapt Your Litigation Strategy to a More Flexible Summary Judgment Standard
Florida’s Supreme Court may decide that the record evidence in Lopez creates a genuine factual issue as to whether (a) the Freightliner was partially in the right lane and (b) the alleged lane straddling contributed to the crash. It conceivably could do this under the current summary judgment standard or an altered standard. It also could carve out a limited exception for the summary judgment standard which establishes the preeminence of video evidence when, as the District Court framed the issue, “the movant’s video evidence completely negates or refutes any conflicting evidence.” Ironically, in 2017, when the Florida Supreme Court ruled it was proper for a circuit court judge to reject a police officer’s testimony as competent, substantial evidence because video evidence clearly refuted it, the Court’s liberal wing issued the decision while the two conservative jurists dissented. See Wiggins, 209 So. 3d 1165. The dissenting justices disagreed that the video “flatly contradicted and refuted” the police officer’s testimony and argued the circuit judge improperly reweighed the evidence. Id. at 1175–1181. Just three years after the Wiggins decision, only one member of the liberal wing still sits on the Court, while the two conservatives have been joined by four other Republican appointees. It will be interesting to see how the two dissenters in Wiggins view the crash video and the Estate’s argument that its theory of liability is consistent with the video.
It also is possible the Court will defer any potential modification of the summary judgment standard to a rules committee process. However, in 2019, the Court rejected the outcome of the committee process when it discarded the Frye standard and adopted the Daubert standard for expert testimony admissibility. See In Re: Amendments to the Florida Evidence Code, 278 So. 3d 551. More importantly, the disparity between the Florida and Federal summary judgment standards arises from differing judicial interpretations rather than textual differences, providing ample grounds to simply reinterpret the existing Florida rule consistent with the Federal Courts’ approach.
The Supreme Court’s demand for briefing on whether to adopt the Federal Court standard for summary judgment, on the heels of adopting the Federal Court standard for admissibility of expert testimony, portends an immediate and bold move. Thus, the most likely outcome may be that the Supreme Court will adopt the Federal Court standard for summary judgment and remand the case for reconsideration of the evidence under the new standard. Both plaintiff and defense attorneys who handle lawsuits in Florida should set aside thirty minutes to observe the October 8 oral argument and develop contingency plans for summary judgment strategy.