Lesnik v. Duval Ford, LLC

185 So. 3d 577, 2016 Fla. App. LEXIS 1061, 2016 WL 339777
CourtDistrict Court of Appeal of Florida
DecidedJanuary 28, 2016
DocketNo. 1D14-5029
StatusPublished
Cited by6 cases

This text of 185 So. 3d 577 (Lesnik v. Duval Ford, LLC) 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
Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 2016 Fla. App. LEXIS 1061, 2016 WL 339777 (Fla. Ct. App. 2016).

Opinions

BILBREY, J.

Appellant Shaun Lesnik appeals the final summary judgment entered by the trial court upon the trial court’s finding no genuine dispute of material fact and that both Appellees, defendants below, were entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). 'As grounds for reversal, Mr. Lesnik challenges the trial [579]*579court’s striking of the affidavit of his expert witness, Alan Moore, P.E.,'filed after Mr. Moore’s deposition was taken and after the filing of the motions for summary judgment. In addition, Mr. Lesnik asserts that genuine issues of material fact precluded summary judgment for the defendants/Appellees.

The undisputed facts in the record are that on August 29, 2007, Appellee Duval Ford sold a new, 2008 Ford F-250 to the original owner, David Sweat. Prior to taking delivery of the truck, Mr. Sweat ordered a 6-inch lift kit, which was installed by a subcontractor of Duval Ford.1 During his ownership of the truck, Mr. Sweat modified the suspension system with a leaf spring to increase the towing capacity, and replaced the tires. He drove the truck over 30,000 miles during the time he owned it, and never experienced any problem with the steering or suspension. On October 23, 2009, Mr. Sweat sold the vehicle through Larry Burkins, owner of Burkins Chevrolet, to plaintiff Shaun Lesnik. Prior to the sale, Burkins Chevrolet conducted a routine inspection of the truck which revealed no obvious issues.

After experiencing severe shaking in the truck’s steering on the evening of October 23, 2009, Mr. Lesnik had the truck repaired and made some additional modifications, including installing a tool box and fuel tank on the truck bed,' installing a steering stabilizer, and replacing the tires. Mr. Lesnik also installed a performance tuner which substantially increased the horsepower.-of the truck.

On December 16, 2009, as Mr. Lesnik was driving the truck, the steering and suspension suddenly failed, the truck flipped over, and Mr. Lesnik was severely injured in the single-vehicle accident.; The tires on the truck at the time of the accident were two inches larger in diameter than the truck specifications called for, but it was unclear from the evidence when this change occurred or which owner made this change to the size of the tires.

We review the trial court’s striking of the affidavit of an expert witness, in this case the affidavit of Mr. Moore, for abuse of discretion. “As with other evidentiary matters, the admission and consideration of affidavits is a matter within the sound discretion of the trial court....” Scott v. NCNB Nat’l Bank of Florida, 489 So.2d 221, 223 (Fla. 2d DCA 1986);, see also Martins v. PNC Bank, N.A., 170 So.3d 932, 937 (Fla. 6th D.CA 2015) (denial of motion to strike summary judgment affidavit was abuse of trial court’s discretion).

Mr. Moore’s deposition was taken on May 7, 2014." Along with his expert opinions on the technical and mechanical evidence in this case, Mr. Moore was asked if he had “any opinions with respect to the conduct of Burkins Chevrolet that you feel caused this apcident involving Mr. Les-nik?” Mr, Moore responde^, “No, I do not.” Mr. Moore was asked a similar question regarding Mr. Burkins individually, and he responded with the same answer. Mr. Moore also testified that he had no opinion on whether lifted trucks should be sold to the public and he had no opinion whether the truck was defective when Duval Ford sold it to. the original purchaser.

After Duval Ford and Burkins Chevrolet filed their motions for summary judgment, Mr. Lesnik filed an affidavit of Mr. Moore dated September 11, 2014. In this affidavit, Mr. Moore recited several [580]*580sources of information purportedly available to Burkins Chevrolet which Mr. Moore asserted provided the dealership with “trade knowledge” of the dangers of trucks with lift kits, modified suspension systems, oversized tires, and the effects of these modifications on vehicle warranties.2 He further opined that the service records for the truck in this case were available and that excessive tire wear should have been Veadily apparent had Burkins Chevrolet inspected the truck prior to selling it to the plaintiff. Mr. Moore’s affidavit concluded that Burkins Chevrolet “had information available that indicated a suspension inspection should be performed, but did not do so” and that warning' the consumer, namely the plaintiff, could have prevented his “exposuré to the above risks” of thé Vehicle. Mr. Moore’s affidavit did not explain why he was riOw offering these opinions after previously testifying that he had no opinion as to the conduct of Burkins Chevrolet or Mr. Bur-kins which contributed to the accident.3

At the trial level, Mr. Lesnik’s counsel made no attempt to explain the difference between Mr. Moore’s deposition testimony that he had no opinion regarding the conduct of defendant Burkins Chevrolet or Mr. Burkins personally which might have caused the accident, and Moore’s subsequent affidavit indicating that Burkins Chevrolet failed to take actions which could have prevented the accident. Mr. Lesnik’s position was that no explanation was necessary because the later-prepared affidavit did not contradict Moore’s deposition testimony.4

Based on the precedent established by Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954) and subsequent cases, the trial court found Mr. Moore’s affidavit irreconcilably inconsistent with his earlier deposition testimony without any explanation for the inconsistency, and granted Burkins Chevrolet’s motion to strike Mr. Moore’s affidavit. Considering the timing and content of the deposition and affidavit at issue, we find no abuse of the trial court’s discretion in applying the rule set out in Ellison that “a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit. testimony.” Ondo v. F. Gary Gieseke, P.A., 697 So.2d 921, 923 (Fla. 4th DCA 1997) (citations omitted).5

Our review of the summary judgment itself is de novo, “to determine whether there are genuine issues of material fact and whether the trial court properly applied the correct rule of law.” [581]*581Futch v. Wal-Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008). While various facts might be in dispute, the material facts depend upon the causes of action alleged in the pleadings, namely Mr. Lesnik’s third amended complaint, filed September 24, 2013. Mr. Lesnik sought damages .against Duval Ford on the legal theories of vicarious liability for the negligence of the subcontractor lift kit installer, direct negligence for selling the vehicle as modified and failing to warn, and strict liability for selling the vehicle as modified and failing to warn. To assert a claim for a defective product, whether the claim is for negligence or strict liability, a plaintiff must show “(1) that a defect was present in the product; (2) that it caused the injuries complained of; and (3) that it existed at the time the retailer or supplier parted possession with the product.” Cassisi v. Maytag Co., 396 So.2d 1140, 1143 (Fla. 1st DCA 1981).6

There was no evidence in the record that the lift kit was defective .or improperly installed by Duval Ford’s subcontractor or that it was inherently dangerous, eliminating any claim for vicarious liability against Duval Ford.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sheila A. Knepfle v. J & P Cycles, LLC
48 F.4th 1282 (Eleventh Circuit, 2022)
D-I DAVIT INTERNATIONAL-HISCHE GMBH v. JELEN CARPIO, etc.
District Court of Appeal of Florida, 2022
Genesis Ministries, Inc. v. Gregory S. Brown, as Property etc.
250 So. 3d 865 (District Court of Appeal of Florida, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
185 So. 3d 577, 2016 Fla. App. LEXIS 1061, 2016 WL 339777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lesnik-v-duval-ford-llc-fladistctapp-2016.