On December 2, 2015, the Second District Court of Appeal, in Panzera v. O’Neal (Case No. 2D14-4302), held that the plaintiffs did not present any admissible evidence to support their negligence claim against the defendant-truck driver and his employer or to refute the conclusion that the decedent-pedestrian caused the highway collision. Accordingly, the court affirmed the lower court’s order granting summary judgment in favor of the defendants.

Read the opinion here.

The undisputed facts established that at approximately 3 a.m., Anthony Panzera climbed a fence and entered Interstate-75, where he was struck and killed by a Publix semi tractor-trailer driven by Darryl O’Neal. Panzera was wearing a dark shirt and there were no street lights in the area. The truck was equipped with a device that capped its speed at 65 mph, which was 5 mph less than the posted speed limit. The truck was also equipped with a device that generated a report when the truck suddenly decelerated. On the night of the collision, the truck was traveling at 65 mph when it suddenly decelerated.
O’Neal testified that he saw Panzera run across the interstate into his lane of traffic. He applied the brakes and steered to avoid Panzera, but was unable to avoid the collision. The officers who responded to the accident testified that the evidence at the scene, including the lengthy skid marks, led them to conclude that O’Neal took immediate evasive action and could have done nothing more to avoid the collision.
At the hearing on the defendants’ motion for summary judgment, the plaintiffs, Panzera’s parents and the personal representatives of his estate, presented no evidence or expert testimony to refute the officers’ conclusions. The trial court granted final summary judgment in favor of the defendants.
On appeal, the appellate court reiterated 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” and that “[t]he party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail.” Once the moving has met this heavy burden, the nonmoving party must offer admissible evidence that shows the existence of a genuine issue of material fact. The court stated that many litigants labor under the misconception that they only need to argue or proffer any fact that they believe to be in conflict in order to defeat a motion for summary judgment, but that to prevail, it must be admissible evidence that creates a colorable issue of material fact.
Here, in response to the defendants’ motion for summary judgment, the plaintiffs raised only speculative, rather than genuine, issues of material fact. In particular, the plaintiffs submitted their testimony that O’Neal could have avoided the accident by taking additional evasive maneuvers. However, because the plaintiffs did not witness the accident and admitted that they were not experts in accident reconstruction; their lay opinion testimony could not be relied upon to create a material issue of fact. Rather, the evidence established that O’Neal was driving below the speed limit, he applied his brakes, and he steered to avoid the collision, which supported the defendants’ argument that Panzera was the sole proximate cause of the accident. Because the plaintiffs’ evidence was purely speculative, no material issues of fact remained and the appellate court affirmed the entry of final summary judgment in favor of the defendants.

Image courtesy of Flickr by Alan Taylor (no changes).