Business and Legal Insights

In a recent opinion, Florida’s First District Court of Appeal provided further guidance regarding the changes to Florida’s summary judgment rule.  See Whitlow v. Tallahassee Memorial Healthcare, Inc., --- So. 3d ---, Case No. 1D21-3413 (Fla. 1st DCA Aug. 16, 2023). 

The Whitlow opinion provides a thoughtful and scholarly discussion regarding the importance of jury trials, the purpose of summary judgment proceedings, and the practical impacts of the new summary judgment rule. Although the Whitlow opinion addresses a slip-and-fall case, its discussion of the new summary judgment standard applies to essentially any case in which a party files a motion for summary judgment that argues the non-movant has failed to establish facts in support of a legal element of a claim or defense.

As every Florida practitioner already knows, the Florida Supreme Court amended the state’s summary judgment rule during 2021 to make it consistent with the federal rule.  However, questions have remained among Florida practitioners regarding whether the state trial courts—which had grown accustomed in past years to denying summary judgment motions that involved any question of an allegedly disputed fact—would lean into or away from the new summary judgment standard. 

In Whitlow, both the trial and appellate courts leaned strongly into the new standard by granting and affirming summary judgment in favor of the defendant on the basis that the plaintiff failed to present substantive evidence from which a jury could reasonably infer that the defendant’s employees knew about an allegedly dangerous condition.  Although practitioner opinions may differ on the following point, it seems clear that the Whitlow defendant’s motion probably would have been denied under Florida’s pre-2021 summary judgment rule.

In affirming the trial court’s grant of summary judgment to the defendant, the Whitlow opinion offered the following summary and explanation of the rule change:

With its recent adoption of a new summary judgment rule, the supreme court “largely replace[d] the text of existing rule 1.510 with the text of federal rule 56.” In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d 72, 75 (Fla. 2021). The new rule provides for a summary judgment standard that mirrors the federal standard, such that we “will now adhere to the principles established in the Celotex trilogy.” Id. If we consider the history set out above, however, this change is not that remarkable. Instead, it represents a return to the procedural expediencies that the supreme court had approved over a century earlier as complementing, rather than conflicting with, the right to a trial by jury. In adopting the federal standard, the supreme court even recognized “the fundamental similarity between the summary judgment standard and the direct verdict standard.” Id. The supreme court essentially requires that the directed verdict standard—which it has approved for application mid-trial since the nineteenth century—now to be applied pre-trial as well. To state this another way: The trial judge now operates as a gatekeeper for use of a jury to resolve factual disputes both before and during the trial.

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With the Florida Supreme Court’s adoption of the new rule, upon the filing of a summary judgment prior to the commencement of trial in this state, it becomes incumbent on the non-movant to come forward with evidence showing a “dispute about a material fact [that] is ‘genuine,’ ” or, in other words, demonstrate that “the evidence is such that a reasonable jury could return a verdict for the” party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-movant’s right to a jury trial extends only to “factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505. If the trial court, upon review of the evidence produced by the party bearing the burden of proof at trial, concludes that there is no substantive evidence (rather than “merely colorable” or “not significantly probative”), from which a jury reasonably could “return a verdict for that party,” then it may grant summary judgment against the party without running afoul of the constitution’s jury-trial guarantee. Id. at 249–50, 106 S.Ct. 2505.

Id.

The plaintiff’s theory of the case in Whitlow was that the defendant’s employees had created a dangerous condition, i.e. liquid on the floor of the hospital, so the plaintiff should not have been required to prove anything else regarding the defendant’s knowledge of the alleged condition.  The trial and appellate courts disagreed, and concluded that the plaintiff still needed to show that the defendant’s employees actually knew about the alleged liquid on the floor.  Id.

Although these factual matters and the related discussion have limited to no application to cases outside of the general context of slip-and-fall cases, the Whitlow opinion’s discussion of why summary judgment was properly granted is applicable to just about every motion that argues a claim or defense fails as a matter of law because it lacks factual proof of a required legal element.  It is no longer sufficient in Florida for the non-movant to merely argue facts are in dispute.  The non-movant must establish that material facts are in genuine dispute.  The appellate court explained:

Whitlow had the burden to “make a showing sufficient to establish the existence [of each] element essential to [her] case, and on which [she] will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. There can be “no genuine issue as to any material fact” for a jury to resolve if there is “a complete failure of proof concerning [any] essential element of the non[-]moving party’s case.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). Whitlow needed to “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348.

To defeat summary judgment, then, there must be “some alleged factual dispute between the parties” shown to be both “material” and “genuine.” Anderson, 477 U.S. at 247, 248, 106 S.Ct. 2505. Something is “material” if it relates to the substantive law. Id. (“[W]hile the materiality determination rests on the substantive law, it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.”). A material fact dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. While it is true that “inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion,” the burden is on the non-movant to show that any such inference “is reasonable in light of [ ] competing inferences.” Matsushita Elec., 475 U.S. at 587–88, 106 S.Ct. 1348 (internal quotation and citation omitted).

In the end, Whitlow left an evidentiary gap regarding knowledge of the water on the floor. The record at best shows that the nephew was the only one who saw the dripping stretcher, and the mother was the only one who saw the water on the floor. There was nothing in the record to establish knowledge on the part of TMH employees that could be imputed to TMH, and there was not enough from which to reasonably infer that knowledge. No reasonable jury could find for Whitlow at trial, so summary judgment for TMH was the correct disposition.

Id.

The motto of this story:  Whitlow is part of a growing body of evidence that the trial and appellate courts of Florida are actively applying the new summary judgment rule in a manner that substantively departs from the last few decades of Florida jurisprudence.  Whether this is good or bad is subject to debate, of course, but it seems undeniable that the rule change is having practical impacts on cases pending in Florida state courts.