McNabb v. Bay Vill. Club Condo. Ass'n, Inc., Case No. 2D15–5613

CourtCourt of Appeal of Florida (US)
Writing for the CourtSILBERMAN, Judge.
Citation216 So.3d 688
Parties Jonathan MCNABB, Appellant, v. BAY VILLAGE CLUB CONDOMINIUM ASSOCIATION, INC.; Taylor Elevator Corp.; and D.G. Suitor & Associates, Inc., Appellees.
Decision Date29 March 2017
Docket NumberCase No. 2D15–5613

216 So.3d 688

Jonathan MCNABB, Appellant,
v.
BAY VILLAGE CLUB CONDOMINIUM ASSOCIATION, INC.; Taylor Elevator Corp.; and D.G. Suitor & Associates, Inc., Appellees.

Case No. 2D15–5613

District Court of Appeal of Florida, Second District.

Opinion filed March 29, 2017.
Rehearing Denied May 9, 2017


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

216 So.3d 690

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...

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11 practice notes
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...fact that someone wrote a letter that they also mailed it, at least not without engaging in speculation about what happened. See Allen, 216 So. 3d at 688. Thus, we have held that "mailing must be proven by producing additional evidence such as proof of regular business practices, an affidav......
  • PNC Bank Nat'l Ass'n v. Roberts, Case No. 5D16–3341
    • United States
    • Court of Appeal of Florida (US)
    • April 27, 2018
    ...897, 899–900 (Fla. 1973) ; CitiBank, N.A. for WAMU Series 2007–HE2 Tr. v. Manning, 221 So.3d 677, 681–82 (Fla. 4th DCA 2017) ; Allen, 216 So.3d at 688 (citing CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) ); State Farm Fire & Cas. Co. v. Higgins, 788 So.2d 992, 100......
  • Spencer v. Ditech Fin., LLC, Case No. 2D16–4817
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 2018
    ...evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt." Allen, 216 So.3d at 688. Testimony regarding a company's routine business practices may establish a rebuttable presumption that the default letter was mailed. Id. (c......
  • Alessio v. Ocwen Loan Servicing, LLC, No. 4D18-793
    • United States
    • Court of Appeal of Florida (US)
    • May 1, 2019
    ...by way of witness testimony, "the witness must have personal knowledge of the company's general practice in mailing letters." Allen , 216 So.3d at 688 (citing CitiMortgage, Inc. v. Hoskinson , 200 So.3d 191, 192 (Fla. 5th DCA 2016) ); accord Spencer v. Ditech Fin., LLC , 242 So.3d 1189, 119......
  • Request a trial to view additional results
11 cases
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...fact that someone wrote a letter that they also mailed it, at least not without engaging in speculation about what happened. See Allen, 216 So. 3d at 688. Thus, we have held that "mailing must be proven by producing additional evidence such as proof of regular business practices, an affidav......
  • PNC Bank Nat'l Ass'n v. Roberts, Case No. 5D16–3341
    • United States
    • Court of Appeal of Florida (US)
    • April 27, 2018
    ...897, 899–900 (Fla. 1973) ; CitiBank, N.A. for WAMU Series 2007–HE2 Tr. v. Manning, 221 So.3d 677, 681–82 (Fla. 4th DCA 2017) ; Allen, 216 So.3d at 688 (citing CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) ); State Farm Fire & Cas. Co. v. Higgins, 788 So.2d 992, 100......
  • Spencer v. Ditech Fin., LLC, Case No. 2D16–4817
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 2018
    ...evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt." Allen, 216 So.3d at 688. Testimony regarding a company's routine business practices may establish a rebuttable presumption that the default letter was mailed. Id. (c......
  • Alessio v. Ocwen Loan Servicing, LLC, No. 4D18-793
    • United States
    • Court of Appeal of Florida (US)
    • May 1, 2019
    ...by way of witness testimony, "the witness must have personal knowledge of the company's general practice in mailing letters." Allen , 216 So.3d at 688 (citing CitiMortgage, Inc. v. Hoskinson , 200 So.3d 191, 192 (Fla. 5th DCA 2016) ); accord Spencer v. Ditech Fin., LLC , 242 So.3d 1189, 119......
  • Request a trial to view additional results

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