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In McNabb v. Taylor Elevator Corp., 2016 Fla. App. LEXIS 12395 (Fla. Dist. Ct. App. 2d Dist. Aug. 17, 2016) the Second District Court of Appeal reversed a summary judgment ruling in a case where conflicting evidence was submitted by Plaintiff and Defendant. Jonathan McNabb slipped and fell in an elevator after a seal broke and oil accumulated on the floor of the elevator. McNabb alleged that the elevator was not properly maintained. Taylor Elevator provided evidence showing that the elevator had been inspected three days prior to the incident, and that the seal was not leaking at that time. In response, McNabb filed the affidavit of Dr. Charles Benedict who testified that the leak had been occurring between four-and-a-half days and eighteen days. Whereas Taylor Elevator stated that the leak occurred after the inspection, the affidavit executed by Dr. Benedict indicated that the leak had occurred before the inspection took place.

Taylor Elevator moved for summary judgment based on the evidence they provided . The trial court granted the motion for summary judgment and stated, “I’m going to discount this affidavit of Charles Benedict, because I don’t believe it’s based on any actual facts.” On appeal, McNabb argued that the affidavit created a material issue of fact and that summary judgment was improper. The Second District Court of Appeal agreed with McNabb and stated that the trial court improperly weighed the evidence when it chose to discount the Affidavit. The trial court’s decision was reversed.

In insurance defense, we are beginning to see summary judgment rulings favorable to Plaintiffs in cases where conflicting affidavits have been executed. Clearly, when contradictory affidavits create a material issue of fact, summary judgment should not be granted. The courts should not participate in the weighing of evidence to determine that one affidavit can outweigh a differing affidavit. The Court in McNabb cited to 4 Comers Ins., Inc. v. SunPubl’ns of Fla., Inc., 5 So. 3d 780,784 wherein it was ruled that the trial court is precluded from weighing the evidence when ruling on motions for summary judgment. Additionally, the Court cited to Nard, Inc. v. De Vito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA2000) in which it was ruled that, “[T]he merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.”  As trial courts are not allowed to weigh evidence when it pertains to motions for summary judgment, conflicting affidavits create a genuine issue of material fact that should be left to the jury to decide.