Appellate Update – The Third District Held Photograph without Corroborating Testimony Failed to Show Actual or Constructive Notice of the Dangerous Condition in a Slip and Fall Case

March 15, 2016 by on News

In City of Miami v. Navarro, No. 3D14-3038, 2016 WL 825443 (Fla. 3d DCA Mar. 2, 2016), the Third District reversed a final judgment in favor of Navarro in a slip and fall case. At trial, in an attempt to prove actual or constructive knowledge of the dangerous condition as required by Florida Statute § 768.0755, Navarro showed a photograph of a raised brick paver that she tripped and fell on to establish negligence on the part of the City. The trial court found that the photograph was legally sufficient to show negligence through passage of time and allowed the issue to be presented to the jury.

On appeal, the Court relied on the Florida Supreme Court decision in Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308 (Fla. 1982), which held:

If the photograph portrays a condition that has some distinguishing feature which clearly shows that the defect has existed for a long period of time, it may afford the jury a basis to infer that a significant period of time has passed. If the photograph is ambiguous on this point and what is shown makes it questionable whether a significant period has passed, the jury would necessarily be required to indulge in speculation to determine the duration of the condition. In such a case the photograph without live testimony is insufficient . . . But there are photographs which may constitute tangible evidence of the scene of an accident sufficient to raise an inference as to the length of time the defect was present. While this depends entirely on the condition sought to be depicted, the photograph must clearly demonstrate that a significant period of time has passed.

Applying Hannewacker, the Court held that Navarro presented no evidence that the City had actual notice of the raised brick. Further, the photograph failed to show the passage of time relating to the raising of the brick; therefore, the jury would have to speculate about the duration of the condition.

In cases where there is only a photograph and no corroborating testimony concerning the passage of time, we recommend moving for summary judgment arguing there is no evidence to establish actual and constructive knowledge of the dangerous condition. In addition, we recommend moving in limine to exclude any such photograph that is not accompanied by corroborating testimony. Therefore, if the motion for summary judgment is unsuccessful, the defendant may be able to exclude the picture from evidence and possibly obtain a directed verdict in its favor.

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.

 

Kansas R. Gooden
Board Certified Appellate Attorney
Appellate Practice Group Leader
Direct: 904.493.3755
Fax: 904.493.5658
Email: kgooden@boydjen.com
Britney R. Horton
Associate
Direct: 904.309.6789
Fax: 904.493.3752
Email: bhorton@boydjen.com

 

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