Video Evidence Sets the Stage for Florida's Highest Court to Expand Summary Judgment Opportunities

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. 4^th 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 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.

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...