NOT FINAL UNTIL TIME EXPIRES 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 favor of 

Bay Village Condominium Association, Inc., in this slip and fall case. The trial court 

determined as a matter of law that Bay Village did not have notice of the oil leak that 
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allegedly caused the accident. We reverse because the court erroneously 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 substance on Bay Village's premises. McNabb alleged that 

Bay Village owed McNabb a duty to keep the premises safe, to keep the premises free 

from debris, and to warn of any dangerous conditions. Bay Village moved for summary 

judgment based on its defense that it did not have notice of the dangerous condition. In 

support of its motion, Bay Village presented the following deposition testimony. 

 McNabb testified that he slipped on what he assumed was hydraulic oil in 

a hallway outside the elevator on the ground floor of a condominium 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 the 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. Karyn reported the oil to 

Brad Brian, who performed maintenance for Bay Village. Brian called Taylor Elevator 

Corporation, and Taylor sent out elevator technician Darren Gulmy a few hours later. 

Gulmy testified that there was oil about a quarter of an inch deep in the machine room 

and some had leaked into the hallway to form a puddle. Gulmy concluded that a 

leaking Victaulic seal on a pipe in the machine room was the source 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 which would 

indicate that it had been walked through. And none of the professionals could 
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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 days 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 to summary 

judgment because there was no evidence regarding how long the oil had been in the 

hallway. McNabb did not dispute Bay Village's assertion that it 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, McNabb 

presented the affidavit of Dr. Benedict, a professional engineer with a Ph.D. in 

mechanical engineering. Dr. Benedict relied on (1) Gulmy's testimony 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 violations they 

discovered, (4) service records describing the leak and the condition 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 leaking 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 approximately 4.5 days. At any rate, Dr. Benedict believed 

the leak had been occurring for at least twenty-four hours prior to the accident. 

 The trial court discounted Dr. Benedict's affidavit for the following reasons: 
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The expert affidavit filed by the Plaintiff lacked credibility &/or 

reliability as he was not an elevator expert; he first testified 

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. The 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 been in the hallway for a 

long time. In fact, Karyn McNabb did not see the leak until after the accident, and 

McNabb himself was not sure what he slipped on. While there was evidence that the 

elevator machinery was not up to code, none of the violations concerned 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. Benedict's 

affidavit based on a lack of credibility and reliability. He also argues that the court erred 

in granting summary judgment because Dr. Benedict's affidavit created a genuine issue 

of material fact. We find merit in both arguments. 

 Summary judgment should only be granted when the evidence establishes 

"that there is no genuine issue as to any material fact and that 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)). The trial court is precluded 
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from weighing witness credibility and speculating about the nonmoving party's chance of 

success. Id. at 531-32. 

 In rejecting Dr. Benedict's affidavit, the trial court explicitly weighed 

witness credibility by finding that Dr. Benedict's affidavit "lacked credibility &/or 

reliability." The court also speculated about McNabb's chance of success by finding 

that Dr. Benedict's "opinion was weak" and "leaves open that other possibilities are 

equally as likely." This was error. In fact, this court has already stated that the same 

judge made a similar error in determining that a previous affidavit of Dr. Benedict's 

lacked credibility. See McNabb v. Taylor Elevator Corp., 203 So. 3d 184, 185 n.2 (Fla. 

2d DCA 2016).1 

 We recognize that the trial court is not required to consider affidavits that 

are not based upon personal knowledge or are devoid of evidentiary support. See 

Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers' Comp. JUA, Inc., 793 So. 2d 978, 

980 (Fla. 2d DCA 2001); Howard v. Boulanger Drywall Corp., 23 So. 3d 817, 819 (Fla. 

4th DCA 2009). However, Dr. Benedict'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 (concluding that the trial court erred in rejecting Dr. 

Benedict's previous affidavit, which relied on the same evidence, as devoid of factual 

support). 

 

 1In 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 three days before the 

accident and observed no leakage. Id. at 185. In so doing, the court disregarded an 

affidavit of Dr. Benedict containing many of the same findings as the one in this case. 
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 To the extent the trial court determined that Dr. Benedict made 

inconsistent findings in the affidavit, that finding was erroneous. According to Dr. 

Benedict's specific calculations, the leak had been occurring between 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 conclusion that 

there are disputed issues of material fact regarding whether Bay Village had 

constructive notice of the dangerous condition. We disagree with Bay Village's 

assertion that Dr. Benedict's affidavit does not create a disputed issue of material fact 

regarding notice because Dr. Benedict did not specifically state 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 inferences in the light most favorable 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. Benedict's affidavit 

after weighing the witness's credibility and reliability and speculating 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 the oil leak, summary 

judgment was improper. 

 Reversed and remanded. 

CRENSHAW and SALARIO, JJ., Concur.