Kopacz v. Jack Eckerd Corp.

District Court of Appeal of Florida

Kopacz v. Jack Eckerd Corp.

542 So. 2d 469, 14 Fla. L. Weekly 1098, 1989 Fla. App. LEXIS 2340, 1989 WL 43811

CourtDistrict Court of Appeal of Florida

DecidedMay 4, 1989

DocketNo. 88-1979

StatusPublished

Cited by2 cases

This text of 542 So. 2d 469 (Kopacz v. Jack Eckerd Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kopacz v. Jack Eckerd Corp., 542 So. 2d 469, 14 Fla. L. Weekly 1098, 1989 Fla. App. LEXIS 2340, 1989 WL 43811 (Fla. Ct. App. 1989).

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Opinion

PER CURIAM

This is an appeal from a summary judgment in a personal injury case. The trial court erred in striking an affidavit of the plaintiff which affidavit contained statements different from those she earlier made in a deposition. The affidavit was filed to defend against the defendant’s motion for summary judgment. Appellee urges us to apply the rule in Ellison v. Anderson, 74 So.2d 680 (Fla.1954) which says a party cannot defend against a summary judgment by filing an affidavit to “baldly repudiate [her] previous deposition so as to create a jury issue.” It is our considered judgment that the “Ellison Rule” is not applicable here because a full reading of the deposition of the plaintiff shows she very likely was confused and unsure of her answer and thus should not be held strictly to it by granting summary disposition of her claim. Croft v. York, 244 So.2d 161 (Fla. 1st DCA 1971), cert. denied, 246 So.2d 787 (Fla.1971). The affidavit is sufficient to raise a genuine issue of a material fact and thus prevents a summary judgment. The judgment is reversed and this cause remanded for trial.

REVERSED.

[470]*470DAUKSCH and GOSHORN, JJ., concur. SHARP, C.J., concurs in result only.

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PER CURIAM

This is an appeal from a summary judgment in a personal injury case. The trial court erred in striking an affidavit of the plaintiff which affidavit contained statements different from those she earlier made in a deposition. The affidavit was filed to defend against the defendant’s motion for summary judgment. Appellee urges us to apply the rule in Ellison v. Anderson, 74 So.2d 680 (Fla.1954) which says a party cannot defend against a summary judgment by filing an affidavit to “baldly repudiate [her] previous deposition so as to create a jury issue.” It is our considered judgment that the “Ellison Rule” is not applicable here because a full reading of the deposition of the plaintiff shows she very likely was confused and unsure of her answer and thus should not be held strictly to it by granting summary disposition of her claim. Croft v. York, 244 So.2d 161 (Fla. 1st DCA 1971), cert. denied, 246 So.2d 787 (Fla.1971). The affidavit is sufficient to raise a genuine issue of a material fact and thus prevents a summary judgment. The judgment is reversed and this cause remanded for trial.

REVERSED.

[470]*470DAUKSCH and GOSHORN, JJ., concur. SHARP, C.J., concurs in result only.

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Bluebook (online)

542 So. 2d 469, 14 Fla. L. Weekly 1098, 1989 Fla. App. LEXIS 2340, 1989 WL 43811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kopacz-v-jack-eckerd-corp-fladistctapp-1989.

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