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Joseph Panzera, et al. v. Darryl O’Neal, et al., Case No. 2D14-4302 (2nd DCA)

In Panzera, the Second District affirmed the trial court’s entry of summary judgment in favor of the defendants in a wrongful death case arising from an automobile accident involving a Publix Supermarkets truck. At slightly past 3 AM on May 29, 2011, the plaintiffs’ decedent attempted to cross a multilane interstate on foot, and in doing so, was struck and killed by a Publix Supermarkets truck. The decedent was wearing a dark shirt, and the roadway was not lighted. The truck was equipped with a governor that limited its speed to 65 miles per hour, which is 5 miles per hour under the speed limit. The truck’s data collection system showed that at the time of the incident, the truck was traveling at 65 miles per hour and experienced a sudden deceleration. The truck driver testified that he first saw the decedent when the decedent ran across the emergency lane into his lane of travel. The truck driver testified that he applied the brakes strongly, and steered to avoid the decedent, but was unable to avoid the collision. The traffic investigators found evidence at the scene that was consistent with the truck driver’s story, and they concluded that there was nothing the truck driver could have done to avoid the collision and that the decedent was at fault for the incident.

At the hearing on the defendants’ motion for summary judgment, the plaintiffs did not present evidence or expert testimony to refute the officers’ conclusion that the decedent caused the accident, or to support their negligence claim. The trial court entered summary judgment in favor of the defense.

On appeal, the Second District noted that in “a negligence action, summary judgment is improper unless a defendant can establish unequivocally the absence of negligence or that the plaintiff’s negligence was the sole proximate cause of the injury.” The party moving for summary judgment has the burden to establish irrefutably that the nonmoving party cannot prevail. “Once the moving party has met this heavy burden, the nonmoving party must offer admissible evidence that shows the existence of a genuine issue of material fact. Many litigants labor under the misconception that they need only argue or proffer any fact that they believe to be in conflict to survive a motion for summary judgment. However, to prevail it must be admissible evidence that creates a colorable issue of material fact.”

In this case, the Second District noted that the plaintiffs raised only “speculative, rather than genuine, issues of material fact” in opposition to the defendants’ motion for summary judgment. The plaintiffs relied only on the deposition testimony of the decedent’s parents to suggest that the truck driver could have done more to avoid the accident. This testimony was based on their personal review of the scene after the accident. The Second District noted that neither parent has experience in accident reconstruction and they were not present at the time of the incident. Therefore, their allegations of negligence “are purely speculative lay opinion testimony, which was not admissible evidence and cannot be relied on to create a material issue of fact.” Accordingly, the Second District found that the only evidence in the record prior to the summary judgment hearing supporting the defense’s position that the decedent was the sole proximate cause of the accident. The summary judgment entered by the trial court was therefore affirmed.

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