Florida’s New Summary
Judgment Standard
2023 AJS
Special thanks to…
Judge Thomas Logue, Justice Meredith L.
Sasso and Judge Keathan B. Frink
OCTOBER 24, 2023
1
Core Take Away
•Adequate opportunity for full discovery
•Directed verdict standard
2
Continuum of
Rules
Motion to Dismiss
Judgment on the Pleadings
Summary Judgment
Directed Verdict
3
Purpose of Summary Judgment
“Summary judgment is designed to test the sufficiency of
the evidence to determine if there is sufficient evidence at
issue to justify a trial or formal hearing on the issues raised
in the pleadings.”
Fla. Bar v. Greene, (Fla. 2006)
4
– Wilsonart v.
Lopez, (Fla. 2020)
“We are persuaded that Florida
should adopt the federal summary
judgment standard.”
5
E. Delacroix,
Liberty Leading
the People
(1830)
6
Not quite… Feds using since 1986 and
38 States before us
7
Poll #1 -- Old Fla. Standard
Maintenance worker cleaning offices falls and
suffers concussion. At deposition, she testifies
she has no memory of the accident and knows
of no witnesses. She sues owner of building
alleging floor was slippery. Owner moves for
summary judgment based on her depo.
8
Origins of Fla. Old Standard
Holl v. Talcott (Fla. 1966)
-33 year old mother of three
-Remove varicose veins
-Never awakes from coma
Visingardi v. Tirone (Fla. 1967)
-26 year old mother of three
-Appendectomy
-Died in hospital
9
Old Florida Standard – Movant Prove
Nonmovant cannot Prove Nonmovant’s case
The defendant must show “conclusively that the plaintiff is
unable to present requisite proof of the negligence charged
in the pleadings.”
Holl, (Fla. 1966)
10
Old Florida Standard – Prove a Negative
“It must first be determined that the movant has successfully
met his burden of proving a negative, i.e., the non-existence of
a genuine issue of material fact. He must prove this negative
conclusively.”
Holl, (Fla. 1966)
11
Old Florida
Standard –
“Scintilla Rule”
12
Scintilla Rule
“If the record on appeal reveals the merest possibility of
genuine issues of material fact, or even the slightest
doubt in this respect, the summary judgment must be
reversed.”
Piedra v. City of N. Bay Village, (Fla. 3d DCA 2016)
13
Old Florida Standard
New Florida Standard
Mirror directed verdict?
no
Genuine issue
Burden
Consider substantive
evidentiary standard at trial,
e.g., higher proof for actual
malice?
14
Old Florida Standard
New Florida Standard
Mirror directed verdict?
no
Genuine issue
“merest possibility,” “slightest
doubt”
Burden
Consider substantive
evidentiary standard at trial,
e.g., higher proof for actual
malice?
15
Old Florida Standard
New Florida Standard
Mirror directed verdict?
no
Genuine issue
“merest possibility,” “slightest
doubt”
Burden
on movant to show nonmovant
does not have evidence to
support nonmovant’s case
Consider substantive
evidentiary standard at trial,
e.g., higher proof for actual
malice?
16
Old Florida Standard
New Florida Standard
Mirror directed verdict?
no
Genuine issue
“merest possibility,” “slightest
doubt”
Burden
on movant to show nonmovant
does not have evidence to
support nonmovant’s case
Consider substantive
evidentiary standard at trial,
e.g., higher proof for actual
malice?
no
17
Problems with old Florida Standard
• Doesn’t test sufficiency of evidence to determine if
sufficient evidence to justify a trial
• Moves analysis away from merits
• Multiplicity of standards
• If taken literally, prohibits summary judgments
18
Poll # 2 -- New Fla. Standard
Maintenance worker cleaning offices falls and
suffers concussion. At deposition, she testifies
she has no memory of the accident and knows
of no witnesses. She sues owner of building
alleging floor was slippery. Owner moves for
summary judgment based on her depo.
19
The Federal Summary Judgment Trilogy
➢ Celotex Corp. v. Catrett
➢ Anderson v. Liberty Lobby, Inc.
➢ Matsushita Electric Industrial Co. v. Zenith Radio Corp
20
Celotex
• In asbestos case, defendant moved for summary judgment.
• After discovery, no evidence of plaintiff’s exposure to defendant’s
asbestos.
• Lower court: no summary judgment; defendant did not show
plaintiff was not exposed to defendant’s asbestos.
• Supreme Court reversed.
21
Summary
judgment
mirrors directed
verdict
➢“Summary judgment should be
granted where the evidence is such
that it would require a directed
verdict for the moving party.”
➢“The inquiry under each is the same:
whether the evidence presents a
sufficient disagreement to require
submission to a jury.”
Anderson, (U.S. 1986)
22
Celotex Summary Judgment Standard
“In our view, the plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex, (U.S. 1986)
23
Like D.V.: Discovery is Complete
“In our view, the plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that
party will bear the burden of proof at trial.”
Celotex, (U.S. 1986)
24
Like D.V.:
Burden on Party with Burden at trial
“In our view, the plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex, (U.S. 1986)
25
Like D.V.: Negating Not Required
“We find no express or implied requirement in Rule 56 that
the moving party support its motion with affidavits or other
similar materials negating the opponent’s claim.”
Celotex, (U.S. 1986)
26
Anderson v. Liberty Lobby
• Libel suit against magazine.
• Plaintiff required to prove at trial actual malice by clear and
convincing evidence.
• Defendant filed affidavit that denied actual malice.
• Plaintiff’s response: jury might disbelieve defendant; no other facts
supporting actual malice.
• Supreme Court vacated decision of Court of Appeals because it did
not apply correct standard in reviewing District Court’s grant of
summary judgment.
27
“The mere existence
of a scintilla of
evidence in support
of the plaintiff's
position will be
insufficient; there
must be evidence on
which the jury could
reasonably find for
the plaintiff.”
Anderson, (U.S. 1986)
28
Substantive evidentiary standard
“The determination of whether a given factual dispute
requires submission to a jury must be guided by the
substantive evidentiary standards that apply to the case.
This is true at both the directed verdict and summary
judgment stages.”
Anderson, (U.S. 1986)
29
Substantive
evidentiary
standards at
trial
“Where the factual dispute concerns
actual malice, clearly a material issue
in a New York Times case, the
appropriate summary judgment
question will be whether the
evidence in the record could support
a reasonable jury finding either that
the plaintiff has shown actual malice
by clear and convincing evidence or
that the plaintiff has not.”
30
Old Florida Standard
New Florida Standard
Mirror directed verdict?
no
yes
Genuine issue
“merest possibility,” “slightest
doubt”
Burden
on movant to show nonmovant
does not have evidence to
support nonmovant’s case
Consider substantive
evidentiary standard at trial,
e.g., higher proof for actual
malice?
no
31
Old Florida Standard
New Florida Standard
Mirror directed verdict?
no
yes
Genuine issue
“merest possibility,” “slightest
doubt”
If jury could rule for
nonmoving party
Burden
on movant to show nonmovant
does not have evidence to
support nonmovant’s case
Consider substantive
evidentiary standard at trial,
e.g., higher proof for actual
malice?
no
32
Old Florida Standard
New Florida Standard
Mirror directed verdict?
no
yes
Genuine issue
“merest possibility,” “slightest
doubt”
If jury could rule for
nonmoving party
Burden
on movant to show nonmovant
does not have evidence to
support nonmovant’s case
on party that has burden at
trial
Consider substantive
evidentiary standard at trial,
e.g., higher proof for actual
malice?
no
33
Old Florida Standard
New Florida Standard
Mirror directed verdict?
no
yes
Genuine issue
“merest possibility,” “slightest
doubt”
If jury could rule for
nonmoving party
Burden
on movant to show nonmovant
does not have evidence to
support nonmovant’s case
on party that has burden at
trial
Consider substantive
evidentiary standard at trial,
e.g., higher proof for actual
malice?
no
yes
34
35
Poll #3
Woman goes into elevator on seventh floor of
building. She pushes button for sixth floor.
Elevator drops to basement breaking her hip.
At deposition, she testifies she does not know
why elevator malfunctioned. Owner of building
moves for summary judgment based on depo.
36
Like D.V.:
Burden on Party with Burden at trial
“In our view, the plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex, (U.S. 1986)
37
Burden on Moving Party that does not have
burden of proof at trial
“[I]f the nonmoving party must prove X to prevail at trial,
the moving party at summary judgment can either produce
evidence that…
[1] X is not so; or
[2] point out that the nonmoving party lacks the
evidence to prove X.”
In re Amends., (Fla. 2021) (cleaned up)
38
Poll #4
Two cars collide at traffic light. Case turns on who
had green light. Defendant submits affidavits of ten
police officers. All testify they saw accident and
Defendant clearly had green light. Plaintiff driver
submits self-serving affidavit testifying “I saw
accident and I had the green light.”
39
Still deciding only if factual issue exists:
Not trial by affidavit or deposition
“Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a motion
for summary judgment or for a directed verdict. The evidence of
the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.”
Anderson, (U.S. 1986)
40
Poll #5
Car Accident on Highway. Undisputed video and
testimony indicate (1) Plaintiff was driving 10 mph over
limit; and (2) Defendant was inebriated and swerving
back and forth across lane lines. No dispute as to
circumstances. Plaintiff moves for s.j. that she was only
10% comparative negligent; defendant was 90%.
41
Still Question
“Ultimate
Facts”
❖Even when historical facts are known,
still exist issues of “ultimate facts”:
o Negligence – community standard
o Comparative negligence
o Intent, motive
o Undue influence, mental capacity,
fraud
42
Poll #6
Two cars collide at traffic light. Case turns on
who had green light. Cross-motions for
summary judgment. Defendant submits
affidavits of ten police officers. All testify
Plaintiff had red light. Plaintiff driver submits
video showing Plaintiff had green light.
43
Scott v. Harris
• Motion for s.j. based on police video of
car chase
• Video is on YouTube (and attached to
the Supreme Court opinion)
• Trial court - - deny s.j. – video shows
issue of fact
• Appellate court – deny s.j. – video
shows issue of fact
• Supreme Court – grant s.j.
44
• Deadly force to catch traffic violator?
• “Harris remained in control of his
vehicle, slowed for turns and
intersections, and typically used his
indicators for turns. He did not run
any motorists off the road.”
• Supreme Court reverses 8-1 (Stevens, J.
dissenting)
• Justice Scalia:
“Reading the lower court’s opinion,
one gets the impression that
respondent, rather than fleeing
from police, was attempting to
pass his driving test.”
“When opposing parties tell two different
stories, one of which is blatantly
contradicted by the record, so that no
reasonable jury could believe it, a court
should not adopt that version of the facts
for purposes of ruling on a motion for
summary judgment.”
47
Bonus Poll
Which of the following are not in the Rock and
Roll Hall of Fame…
48
JIMMY BUFFETT
49
THE MONKEYS
50
THREE DOG NIGHT
51
JETHRO TULL
52
53
Big Procedural
Changes
54
Poll #7
The Court must state on the record the
reasons for its ruling only if the Court is
granting summary judgment.
55
This is a
thing of of
the past!
56
Rule 1.510 (a)
“The court shall state on the record the
reasons for granting or denying the
motion.”
57
Judge State
Reasons
“To comply with this requirement,
it will not be enough for the court
to make a conclusory statement
that there is or is not a genuine
dispute as to a material fact. The
court must state the reasons for its
decision with enough specificity to
provide useful guidance to the
parties and, if necessary, to allow
for appellate review.”
58
Rule 1.530(a) and 12.530(a)
“To preserve for appeal a challenge to the failure of
the trial court to make required findings of fact, a
party must raise that issue in a motion for rehearing
under this rule.”
59
Poll #8
If a nonmovant fails to properly address the
movant’s assertions of fact, the court must
grant summary judgment.
60
Trial Court
Discretion
Fla. R. Civ. P.
1.510(e)
“…the court may:
(1) give an opportunity to properly
support or address the fact;
(2) consider the fact undisputed for
purposes of the motion;
(3) grant summary judgment if the
motion and supporting materials--
including the facts considered
undisputed--show that the movant is
entitled to it; or
(4) issue any other appropriate order.
61
Poll #9
The Court is allowed to consider only the
summary judgment materials cited by the
parties: it may not consider parts of the
court file not cited by the parties.
62
Rule 1.510 (c) (3)
“The court need consider only the cited
materials, but it may consider other
materials in the record.”
63
Poll #10
The Court may rule on a party’s motion for
summary judgment on the papers and no
hearing is required.
64
Rule 1.510 (b)
“The movant must serve the motion for
summary judgment at least 40 days before
the time fixed for hearing.”
65
Poll #11
To preserve a claim that it needs more time
for discovery, the nonmovant must file an
affidavit or declaration explaining that it
needs additional time.
66
Trial Court
Discretion
Fla. R. Civ. P.
1.510(d)
If a nonmovant shows by affidavit or
declaration that, for specified
reasons, it cannot present facts
essential to justify its opposition, the
court may:
(1) defer considering the motion or
deny it;
(2) allow time to obtain affidavits or
declarations or to take discovery; or
(3) issue any other appropriate order.
67
Poll #12
The Court may consider summary
judgment only if it is raised by a party. The
Court cannot on its own initiative consider
summary judgment.
68
Trial Initiate
Summary
Judgment
Fla. R. Civ. P.
1.510(f)
After giving notice and a reasonable
time to respond, the court may:
(1) Grant summary judgment for
nonmovant;
(2) Grant the motion on grounds not
raised by a party; or
(3) Consider summary judgment on
its own after identifying for the
parties material facts that may not be
genuinely in dispute.
69
Core Take Away
•Adequate opportunity for full discovery
•Directed verdict standard
70
THANKS
71
Old Florida Standard
New Florida Standard
Mirror directed verdict?
no
yes
Genuine issue
“merest possibility,” “slightest
doubt”
If jury could rule for
nonmoving party
Burden
on movant to show nonmovant
does not have evidence to
support nonmovant’s case
on party that has burden at
trial
Consider substantive
evidentiary standard at trial,
e.g., higher proof for actual
malice?
no
yes
72
