In the recent case of McNabb v. Taylor Elevator Corp., et al., the plaintiff appealed a summary judgment order entered in favor of the defendant. The facts of the case are as follows. The plaintiff suffered an injury when he slipped and fell in the vicinity of an elevator that was located on a property owned by the Bay Village Club Condominium Association. The owner of the property contracted with the defendant to service, maintain, and monitor its elevators. Midway through the defendant’s fall, a Victaulic seal located in the machinery of the elevator broke and released oil out into the hallway and into the machine room.
One of the elevator service technicians attended to the leak. During his deposition, he testified that the seal leaked at a rate of one drip per two seconds. His testimony also indicated that the fluid that leaked into the service room was one-quarter inch deep. In his complaint, the plaintiff alleged that the defendant was negligent in its maintenance and repair of the elevators. In response, the elevator company submitted a report showing that they had serviced the elevators only three days prior to the slip and fall.
To combat this evidence, the plaintiff offered expert witness testimony saying that the seal was leaking roughly four to 18 days prior to the date of the slip and fall accident. The expert, who was a mechanical engineering expert, based this opinion on the technician’s deposition testimony, as well as the physical dimensions of the room.
The lower court granted the defendant’s motion for summary judgment, but in doing so it threw out the expert’s testimony, stating that it was not based on actual facts. According to the court, the report from the defendant stating that the elevator had been serviced three days before was more compelling than the expert’s testimony.
On appeal, the plaintiff argued that this was an error because the affidavit submitted on behalf of the expert created a material dispute of fact regarding whether the valve had been leaking, how long it may have been leaking, and whether there had been fluid on the floor for any period of time leading up to the slip and fall accident.
In reversing the lower court’s opinion, the appellate court concluded that while the defendant had submitted evidence suggesting that the elevator had been inspected, the expert’s testimony that the valve was leaking for at least four days before the accident created a conflicting material issue. The expert’s observations were based on a test to determine the leak and the rate of the leak, while the technician’s opinion was based on observations he made in the maintenance room. As a result, the lower court committed reversible error when it decided to discount the plaintiff’s expert’s testimony. The appellate court then remanded the action to the trial court for further proceedings.
If you have been injured in a slip-and-fall accident, the personal injury lawyers at Lusk, Drasites & Tolisano are prepared to help you fight for the settlement or the judgment that you deserve. Assisting victims throughout Southwest Florida, including in Naples, Fort Myers, and Cape Coral, we offer a free consultation to help you learn about your potential legal recourse. Call us now at 1-800-283-7442 or contact us online to schedule your appointment.
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