NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JONATHAN McNABB, ) ) Appellant, ) ) v. ) Case No. 2D15-5613 ) BAY VILLAGE CLUB CONDOMINIUM ) ASSOCIATION, INC.; TAYLOR ELEVATOR ) CORP.; and D.G. SUITOR & ASSOCIATES, ) INC., ) ) Appellees. ) _____________________________________ ) Opinion filed March 29, 2017. Appeal from the Circuit Court for Lee County; Elizabeth V. Krier, Judge. Thomas B. Deminico of Lusk, Drasites & Tolisano, P.A., Cape Coral, for Appellant. Kelly Fantetti and Vanessa Ross of Groelle & Salmon, P.A., Sarasota, for Appellee Bay Village Club Condominium Association, Inc. No appearance for remaining Appellees. SILBERMAN, Judge. Jonathan McNabb seeks review of a final summary judgment in f avor of Bay Village Condominium Association, Inc., in this slip and fal l case. The trial court determined as a matter of law that Bay Village did not have not ice of the oil leak that- 2 - allegedly caused the accident. W e reverse because the court er roneously refused to consider an affidavit that created a genuine issue of material fact. McNabb filed a complaint for injuries he allegedly sustained when he slipped and fell on a foreign s ubstance on Bay Village's premis es. McNabb alleged that Bay Village owed McNabb a duty to keep the premises safe, to ke ep the premises free from debris, and to warn of any dangerous conditions. Bay Vill age moved for summary judgment based on its defense that it did not have notice of th e dangerous condition. In support of its motion, Bay Village presented the following depo sition testimony. McNabb testified that he slipped on what he assumed was hydra ulic oil in a hallway outside the elevator on the ground floor of a condomi nium building. He did not see the oil before he slipped, and he did not know how long it had been on the floor. After he fell, he noticed oil seeping from under the door of th e machine room next to the elevator into the hallway. It had made a puddle that was about four or five feet wide. Karyn McNabb and Judith Maurer testified that they saw oil in the hallway when they returned home a short while after the accident. Kary n reported the oil to Brad Brian, who performed maintenance for Bay Village. Brian c alled Taylor Elevator Corporation, and Taylor sent out elevator technician Darren Gul my a few hours later. Gulmy testified that there was oil about a quarter of an inch d eep in the machine room and some had leaked into the hallway to form a puddle. Gulmy c oncluded that a leaking Victaulic seal on a pipe in the machine room was the so urce of the oil. He calculated that the pipe was leaking oil at a rate of about one drip every two seconds. None of these people saw any footprints or marks in the oil w hich would indicate that it had been walked through. And none of the prof essionals could- 3 - determine when the leak started or how long it would have taken for the leak to get from the machine room into the hallway where McNabb fell. Three day s prior to the accident, the elevator had been inspected by inspector Stanley Rigby and Taylor Elevator's elevator technician Roger Hicks. They did not see any leaks in the machine room. Based on this testimony, Bay Village argued it was entitled t o summary judgment because there was no evidence regarding how long the o il had been in the hallway. McNabb did not dispute Ba y Village's assertion that i t did not have actual knowledge of the oil leak. The only disputed issue was whether Bay Village had constructive knowledge of the oil leak. In opposition to Bay Village's motion for summary judgment, M cNabb presented the affidavit of Dr. Benedict, a professional enginee r with a Ph.D. in mechanical engineering. Dr. Benedict relied on (1) Gulmy's tes timony describing the extent and source of the oil leak, (2) Brian's testimony about the call from Karyn McNabb, (3) the testimony of Hicks and Rigby regarding code vio lations they discovered, (4) service records describing the leak and the con dition of the equipment on the evening of the incident, and (5) his personal inspection of the machine room and hallway. Dr. Benedict relied on Gulmy's estimate that the depth of the oil in the

machine room was 1/4 inch to conclude that the oil had been lea king for approximately eighteen days. He also testified that even if the depth of the oil was closer to 1/16 inch, the oil had been leaking for approx imately 4.5 days. At any ra te, Dr. Benedict believed the leak had been occurring for at least twenty-four hours prio r to the accident.

The trial court discounted Dr. Benedict's affidavit for the f ollowing reasons:- 4 - The expert affidavit filed by the Plaintiff lacked credibility &/or reliability as he was not an elevator expert; he first testifie d that the leak was possibly there for anywhere from 4.5 days to 18 days, and then changed his testimony and said it was there for more than 24 hours. His opinion was weak, and could only state that the leak was possibly long term. This leaves open that other possibilities are equally as likely. The court made the following findings. The elevator had been inspected three days prior to the accident, and no leak was detected. Th e leak was not reported to Bay Village until after the accident. The puddle of oil did not have track marks going through it, and there was no other evidence that the oil had be en in the hallway for a long time. In fact, Karyn McNabb did not see the leak until af ter the accident, and McNabb himself was not sure what he slipped on. While there wa s evidence that the elevator machinery was not up to code, none of the violations c oncerned any equipment

that would have caused an oil leak. The court concluded that " Bay Village was not on

constructive notice of the leak as a matter of law based on the undisputed facts." McNabb argues that the trial court erred in discounting Dr. B enedict's affidavit based on a lack of credibility and reliability. He a lso argues that the court erred in granting summary judgment because Dr. Benedict's affidavit c reated a genuine issue of material fact. We find merit in both arguments. Summary judgment should only be granted when the evidence est ablishes "that there is no genuine issue as to any material fact and tha t the moving party is entitled to judgment as a matter of law." Arce v. Haas, 51 So. 3d 530, 531 (Fla. 2d DCA 2010) (quoting Estate of Githens ex rel. Seaman v. Bon Secours- Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006)). Th e trial court is precluded- 5 - from weighing witness credibility and speculating about the non moving party's chance of

success. Id. at 531-32. In rejecting Dr. Benedict's affidavit, the trial court explic itly weighed witness credibility by finding that Dr. Benedict's affidavit "l acked credibility &/or reliability." The court also s peculated about McNabb's chance of success by finding that Dr. Benedict's "opinion was weak" and "leaves open that ot her possibilities are equally as likely." This was error. In fact, this court has a lready stated that the same judge made a similar error in determining that a previous affid avit of Dr. Benedict's lacked credibility. See McNabb v. Taylor Elevator Corp., 203 S o. 3d 184, 185 n.2 (Fla. 2d DCA 2016). 1 We recognize that the trial court is not required to consi der affidavits that are not based upon personal knowledge or are devoid of evidenti ary support. See Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers' Comp. JU A, Inc., 793 So. 2d 978, 980 (Fla. 2d DCA 2001); Howard v. Boulanger Drywall Corp., 23 S o. 3d 817, 819 (Fla. 4th DCA 2009). However, Dr. B enedict's affidavit was based on his personal knowledge as gleaned from record documents and his analysis as an expert. See McNabb, 203 So. 3d at 186 (concl uding that the trial court erre d in rejecting Dr. Benedict's previous affidavit, which relied on the same evidenc e, as devoid of factual support).

1 In McNabb, this court reversed a final summary judgment entered in favor of Taylor Elevator in the underlying case. 203 So. 3d at 186. The trial court had ruled that Taylor Elevator established it was not liable as a matter of law by presenting unrefuted evidence that it inspected the elevator machinery thr ee days before the accident and observed no leakage. Id. at 185. In so doing, th e court disregarded an affidavit of Dr. Benedict containing many of the same findings as the one in this case.- 6 - To the extent the trial court determined that Dr. Benedict ma de inconsistent findings in the af fidavit, that finding was errone ous. According to Dr. Benedict's specific calculations, the leak had been occurring b etween 4.5 and eighteen days prior to the accident. This finding is consistent with Dr . Benedict's subsequent conclusion that the leak had been occurring for at least twenty -four hours before the

accident.

A consideration of Dr. Benedict's affidavit leads to the conc lusion that there are disputed issues of mate rial fact regarding whether Ba y Village had constructive notice of the dangerous condition. We disagree wi th Bay Village's assertion that Dr. Benedict's affidavit does not create a dispu ted issue of material fact regarding notice because Dr. Benedict did not specifically stat e that the oil had been leaking in the hallway for at least twenty-four hours prior to the accident. This is a reasonable inference from the context of the affidavit, and we are required to interpret

the evidence and all reasonable in ferences in the light most fa vorable to McNabb. See Dewar v. Dough Boy Pizza, Inc., 184 So. 3d 1169, 1170-71 (Fla. 2d DCA 2015). In conclusion, the trial court erred by discounting Dr. Benedic t's affidavit after weighing the wi tness's credibility and reliability and sp eculating on McNabb's

chance of success. Because Dr. Benedict's affidavit created a genuine issue of material fact regarding whether Bay Village had constructive notice of t he oil leak, summary judgment was improper.

Reversed and remanded.

CRENSHAW and SALARIO, JJ., Concur.