SIRI KOFLEN AND WILLIAM KOFLEN, HER HUSBAND, APPELLANTS,
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., A MARYLAND CORPORATION, APPELLEE

Fla. 3d DCA | 1965-07-27
No. 64-972
Before HENDRY, C. J., and TILLMAN PEARSON and CARROLL, JJ.
177 So. 2d 529 Florida District Court of Appeal, Third District (1965) Positive Treatment
Cited by 14 cases

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Holding

The court held that a plaintiff's affidavit, even if seemingly contradictory to prior deposition testimony, should be considered if a reasonable interpretation exists where both statements are true, thus creating a genuine issue of material fact.


Facts & Procedural History

A wife fell in a store after slipping on spilled mustard. The husband's deposition testimony about seeing the mustard was interpreted by the trial cou…

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Opinion of the Court
TILLMAN PEARSON, Judge.

TILLMAN PEARSON, Judge.

The plaintiff appeals from a summary final judgment entered in a slip-and-fall case. The question as to whether there is a genuine issue of material fact must be determined in this case upon the basis of whether an affidavit of one of the plaintiffs was properly disregarded by the court. We hold that the affidavit should have been considered by the' trial judge and that the summary final judgment was erroneously entered.

The plaintiffs are a 68-year-old woman and her elderly husband. The wife was injured when she fell in defendant’s store at a place where mustard had been spilled by a customer. In a deposition taken of the plaintiff-husband the only question regarding the mustard was: “Did you see this mustard on the floor?” The plaintiff-husband replied:

“I saw it right then, yes. It was on the floor and Ellis, the manager and another man were mopping it up.
“It must have been a large jar of mustard because it spread all over. It seems it spread over a space about half as large as this table.”

The questions immediately preceding the question and answer quoted above dealt with the sequence of events immediately after the husband discovered the wife’s fall. The trial judge interpreted the above answer on deposition to mean that the only time that the husband saw the mustard on the floor was after the wife fell.

At the time of the hearing on defendant’s motion for summary judgment the plaintiff-husband presented his own affidavit which in this particular is as follows:

“2. That on March 24, 1963, he entered the A & P Store located at 2801 S. W. 27th Avenue, Coconut Grove, Florida, at approximately 11:15 a.m. with his wife, SIRI KOFLEN.
“3. That upon entering the said store, his wife, SIRI KOFLEN, turned to the left to go to the manager’s office which was located approximately twelve (12) feet from the entrance of the store.
“4. That he then obtained a shopping basket and proceeded toward the vegetable department but on the way to the vegetable department, he remembered that his wife, SIRI KOFLEN, wanted him to get two chickens. He therefore made a left turn towards the meat department.
“5. That as he came along side the main aisle leading to the checking counters, he saw a mass of yellowish substance on the floor at the exact spot where his wife, SIRI KOFLEN, subsequently fell. He paid no attention *531to this and proceeded toward the meat department.
“6. That upon arriving at the meat department, which was approximately thirty-five (35) feet from the spot where he first noticed the yellowish mass on the floor, he selected the two chickens and looked over the merchandise offered for additional items of interest.
“7. That he then proceeded toward the vegetable department, which was approximately forty (40) feet from the spot where he selected his meat. On the way to the vegetable department, he looked at packages and other merchandise of interest.
“8. That upon arriving at the vegetable counter and selecting some merchandise, he heard his name being called on the loud speaker a little past 11:30 a.m.”

The trial judge was of the opinion that this affidavit should be disregarded because it was an attempt by the plaintiff-husband to create an issue contrary to previously sworn testimony of the affiant. See Kramer v. Landau, Fla.App.1959, 113 So.2d 756. The question of whether the affidavit was properly disregarded is crucial because it is the only evidence offered to controvert the testimony of the store manager and the store employees that the mustard was removed from the floor as soon as was reasonably possible.

It is apparent that while the trial judge may have been correct in his interpretation of the affidavit as being in direct conflict with the plaintiff-husband’s sworn testimony, this is not necessarily so. It is possible that both the deposition and the affidavit may be true. In defending a motion for summary judgment, a party moved against is entitled to all reasonable inferences in his favor. Delany v. Breeding’s Homestead Drug Co., Fla.1957, 93 So.2d 116. We believe this rule includes giving to the previous deposition any reasonable meaning which will not conflict with the subsequently filed affidavit. Cf., Beikirch v. City of Jacksonville Beach, Fla. App.1964, 159 So.2d 898. Viewed in this light the husband’s testimony on deposition and affidavit may be interpreted to mean that he saw the mustard on the floor both before and after his wife’s fall. Therefore, a genuine issue was presented. The trial judge erroneously disregarded appellant-husband’s affidavit.

Reversed and remanded.


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Citator

Cited By

  • Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981)
    …ed to overcome the effect of previous sworn testimony. As a practical matter, that is all the appellants did or attempted to do below. The summary judgment against them is therefore Affirmed. . See also, Koflen v. Great Atlantic & Pacific Tea Co., 177 So. 2d 529 (Fla. 3d DCA 1965). . Mrs. Elison’s deposition had confirmed her husband’s testimony on this point. There was no attempt whatever to explain the deviation from her deposition embodied in the opposition to the motion for summary judgment. . On this…
  • Ouellette v. Bhasker J. Patel, M.D., 967 So. 2d 1078 (Fla. 2d DCA 2007)
    …for summary judgment is entitled to all reasonable inferences in his or her favor “includes giving to the previous deposition any reasonable meaning which will not conflict with the subsequently filed affidavit.” Koflen v. Great Atl. & Pac. Tea Co., 177 So. 2d 529, 531 (Fla. 3d DCA 1965). Discussion In this case, Dr. Kovacs’ deposition testimony was that Dr. Patel’s performance fell below the prevailing professional standard of care because he did not have “a surgeon on backup to allow him to be extricated…
  • Williams v. Ryta Food Corp., 301 So. 3d 339 (Fla. 3d DCA 2020)
    …judgment is entitled to all reasonable inferences in his or her favor ‘includes giving to the previous deposition any reasonable meaning which will not conflict with the subsequently filed affidavit.’”) (quoting Koflen v. Great Atl. & Pac. Tea Co., 177 So. 2d 529, 531 (Fla. 3d DCA 1965)); Willage v. Law Offices of Wallace & Breslow, P.A., 415 So. 2d 767, 769 (Fla. 3d DCA 1982) (“[A] party may give a subsequent affidavit for the purpose of explaining testimony given in a prior affidavit or deposition, so long…

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