A Florida personal injury lawsuit often comes down to weighing evidence. Has the plaintiff produced enough evidence to show that the person or entity being sued was negligent and that this negligence proximately caused the plaintiff’s injury? Often, this question is left to a jury. But sometimes a court finds that there is simply not enough evidence in dispute to require jury consideration. Or that the evidence is so compelling that there is only one way a jury could possibly rule.
In Bernhardt v. Halikoytakis, a case involving a jogging accident, the Second District Court of Appeal recently found that the evidence was sufficient to go to a jury.
Camilla Bernhardt was injured in June 2008 when she fell while jogging. According to Ms. Bernhardt, the fall was caused by a broken stretch of sidewalk which had been damaged during construction work by Point Builders. The company was performing the work for Michael and Edith Halikoytakis, the owners of a small shopping center (Hali Plaza) across the street from where the accident took place.
Bernhardt and her husband sued the Halikoytakis couple and Point Builders. Prior to trial, Defendants filed a motion for summary judgment, arguing that the evidence did not show that they were negligent in any way. The trial court agreed, granting the motion.
On appeal, however, the Second District reversed the decision, finding that the evidence was sufficient for a jury to find that Defendants were not only negligent, but that their negligence caused Bernhardt’s injury.
First, a neighbor who lives across the street from Hali Plaza testified in a deposition that Point Builders stored heavy construction equipment in a vacant lot across from the Plaza and that the equipment would necessarily have to travel over the sidewalk in order to get to the construction site. Although the neighbor did not see the damage occur, he did testify that the stretch of sidewalk was in a damaged condition following the end of the construction. The sidewalk was not damaged prior to the construction, according to the neighbor.
Defendants, meanwhile, entered as evidence a Google Earth photo of the sidewalk, apparently taken in 2007. The photo, which the trial court called “pretty compelling,” seemed to show that the sidewalk was in the same condition in 2007 as it was at the time of the accident, indicating that it had not been damaged by Point Builders’ construction work.
Bernhardt presented the affidavit of an expert witness in response. The expert stated that the photo was not sufficient to compare the sidewalk before and after the accident, adding that any damage to the sidewalk in place in 2007 could have been made worse by the construction work.
The Second District ruled that the trial court erred in granting Defendants’ motion for summary judgment based on the photo. “A successful defense motion for summary judgment must establish unequivocally the absence of negligence or that the plaintiff’s negligence was the sole proximate cause of the injury,” the Court explained. Although the photo did corroborate other witness testimony about the sidewalk’s condition, it did not conclusively show that the sidewalk was not further damaged by the construction. This, according to the Court, was a question for a jury.
The South Florida personal injury attorneys at Anidjar & Levine provide free consultations and case evaluations for people injured in accidents throughout the area, including in Pompano Beach, Hollywood and Fort Lauderdale. If you have suffered injury because of another person’s negligence, call for a free consultation today.
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