Florida should adopt: the Celotex standard for summary judgements.

• Author: Logue, Thomas
• Position: Florida

In a series of opinions issued in 1986 known as the Celotex trilogy, the U.S. Supreme Court modernized the standard for reviewing motions for summary judgment in federal court. Although not bound by such federal procedural law, over 35 states have followed the Supreme Court's example because, in the words of the Supreme Court of Massachusetts, "we think it makes eminent good sense to do so." (1) In contrast, the Florida Supreme Court has not seriously examined its summary judgment standard since deciding the leading cases of Holl v. Talcott, 191 So. 2d 40 (1966), and Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1967), at the beginning of the litigation boom in the late 1960s.

Florida should join the list of jurisdictions that have updated their standard by recognizing the fundamental correlation between a motion for directed verdict and a motion for summary judgment. Although occurring at different procedural points in a lawsuit, these motions serve the same purpose: to test whether a genuine issue of material fact exists that must be resolved by the finder of fact. When there has been sufficient time for discovery, the standard for summary judgment, like the standard for a directed verdict, should take into account the evidentiary burdens that a party must carry at trial. Unless it does so, a motion for summary judgment simply cannot serve its intended purpose to accurately determine whether a genuine issue of material fact exists to be tried.

This article will examine the Florida and federal standards, discuss problems with Florida's standard, and conclude that Florida should adopt the federal interpretation by judicial decision without the necessity or delay of a formal amendment to the rule.

Florida's Holl and Visingardi Cases

Florida's rule of summary judgment is modeled after the corresponding federal rule. In applying the rule, however, Florida's courts developed two conflicting schools of thought concerning summary judgment. One school of thought views summary judgments unfavorably "as necessarily in derogation of the constitutionally protected right to trial" and restricts the scope of summary judgment by rejecting any substantive comparison between a directed verdict and summary judgment. (2) In contrast, recognizing the essential similarity between summary judgments and directed verdicts, an opposing school views summary judgments favorably "as a means of expediting the disposition of baseless litigation." (3)

Initially, it appeared the school of thought that viewed summary judgment more favorably would prevail. In 1959, in Food Fair Stores of Florida v. Patty, 109 So. 2d 5 (Fla. 1959), the Florida Supreme Court upheld a summary judgment in a case arising from a slip and fall at a grocery store. The defendant moved for summary judgment after the plaintiff testified at deposition that she did not know how long the substance that caused her fall had been on the floor. The court of appeal had reversed the grant of a summary judgment citing to the principle that the party moving for summary judgment must carry the burden of overcoming the allegation of negligence "by tendering some proof explaining the condition." (4) In reversing the court of appeal, the Florida Supreme Court rejected this restrictive view.

Similarly, in the 1965 decision of Harvey Building v. Haley, 175 So. 2d 780 (Fla. 1965), the Florida Supreme Court held that a defendant in a slip and fall case was entitled to summary judgment based upon the plaintiffs deposition in which she testified that she fell on a slick floor but did not know why or how long the floor was slippery. "If the moving party presents evidence to support the claimed nonexistence of a material issue," the court explained, "he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result--that is, evidence sufficient to generate an issue on a material fact." In doing so, the movant "does not initially carry the burden of exhausting the evidence pro and con, or even examining all of this opponent's witnesses." The court explicitly recognized that a motion for summary judgment "has most of the attributes of a directed verdict motion" and held that "the summary judgment motion may be categorized as a `pre-trial motion for a directed verdict.'" (5)

The next year, however, the Florida Supreme Court reversed course. The two leading summary judgment cases in Florida, Holl and Visingardi, set forth a circumscribed version of summary judgment. In Holl, a woman entered a hospital to undergo surgery for a urinary tract infection and left "reduced to [a] vegetable state." (6) In Visingardi, a 26-year-old mother of three died in a hospital the morning after routine surgery. (7) In both cases, the Florida Supreme Court held that the trial judges erred in granting summary judgment for the defendant doctors and hospitals.

In reaching these unremarkable results, the court announced a remarkably restrictive view of summary judgment. In Holl, the defendant doctors moved for summary judgment based on affidavits that their surgery and post-operative care conformed to accepted medical standards. The Supreme Court, however, held that such affidavits did not meet the movants' burden because they failed "to explain what did cause Mrs. Holl to be reduced to the vegetable state so as to remove all doubt that the result was caused by their negligence as claimed the petitioners." (8) Thus, the affidavits "do not in themselves demonstrate conclusively that the respondent [doctors] were not guilty of malpractice so as to justify a determination that as a matter of law there was no material fact necessary to be tried." (9) In other words, a defendant in a tort case moving for summary judgment had the burden of providing an explanation of the accident that disproved his or her negligence, a burden the court had rejected in Food Fair and Harvey. "This conclusive showing," the court explained, "is justified because the summary judgment procedure is necessarily in derogation of the constitutionally protected right to trial." (10)

In Visingardi, the court held that summary judgment is appropriate only where "the record affirmatively showed that the plaintiff could not possibly prove her case, and not because she had simply failed to come forward with evidence doing so." (11) Visingardi specifically rejected the argument that a party's burden on summary judgment reflected a party's burden at trial. (12) Although factually distinguishing it, the court also repudiated Food Fair to the extent it lessened restrictions on summary judgment. (13)

Following Visingardi, Florida courts repeatedly declined to recognize the fundamental similarity between a motion for directed verdict and a motion for summary judgment. In particular, they refused to apply to a party at the summary judgment stage of the proceedings the evidentiary burden that the party must carry at the directed verdict and trial stages. (14) Instead, the movant has the burden of proving that no genuine issue of material fact exists regarding all issues, including those that the nonmovant must prove at trial. Moreover, the movant must prove this "irrefutably." (15) Cases have gone so far as to declare that summary judgment is improper "[i]f the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt than an issue might exist." (16)

Problems with Florida's Restrictive Standard

As stated by a dissenting judge whose views on summary judgment were later adopted by the U.S. Supreme Court, "[t]here is no point in sending a case to trial only to have the judge direct a verdict." (17) This point would appear to be self-evident. Without any compensating benefit, such an action wastes limited judicial resources and increases the costs and duration of litigation. But Florida's current standard often compels this inefficient result. The court of appeal in Sylvester v. City of Delray Beach, 486 So. 2d 607 (Fla. 1st DCA 1986), for example, unapologetically upheld the grant of a directed verdict based upon the same facts on which it previously reversed the grant of a summary judgment.

Florida's courts recognize that the restrictive standard burdens the parties and the courts with unnecessary expense and delay which could be avoided by simply requiring the nonmoving party to come forward with its proof establishing a genuine issue of fact concerning those issues for which it will bear the burden of proof at trial. In Graff v. McNeil, 322 So. 2d 40 (Fla. 1st DCA 1975), for example, the plaintiff in a car accident case had the burden of proving at trial that his injuries were of a permanent nature. In response to interrogatories, however, he stated that his injuries had been treated only with aspirin and that no doctor had been consulted who could testify...