Florida Should Adopt The Celotex Standard for Summary Judgments
In a series of opinions issued in 1986 known as the Celotex trilogy, the U.S. Supreme Court modernized the standard for reviewing motions for summary judgment in federal court. Although not bound by such federal procedural law, over 35 states have followed the Supreme Court’s example because, in the words of the Supreme Court of Massachusetts, “we think it makes eminent good sense to do so.”1 In contrast, the Florida Supreme Court has not seriously examined its summary judgment standard since deciding the leading cases of Holl v. Talcott, 191 So. 2d 40 (1966), and Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1967), at the beginning of the litigation boom in the late 1960s.
Florida should join the list of jurisdictions that have updated their standard by recognizing the fundamental correlation between a motion for directed verdict and a motion for summary judgment. Although occurring at different procedural points in a lawsuit, these motions serve the same purpose: to test whether a genuine issue of material fact exists that must be resolved by the finder of fact. When there has been sufficient time for discovery, the standard for summary judgment, like the standard for a directed verdict, should take into account the evidentiary burdens that a party must carry at trial. Unless it does so, a motion for summary judgment simply cannot serve its intended purpose to accurately determine whether a genuine issue of material fact exists to be tried.
This article will examine the Florida and federal standards, discuss problems with Florida’s standard, and conclude that Florida should adopt the federal interpretation by judicial decision without the necessity or delay of a formal amendment to the rule.
Florida’s Holl and Visingardi Cases
Florida’s rule of summary judgment is modeled after the corresponding federal rule. In applying the rule, however, Florida’s courts developed two conflicting schools of thought concerning summary judgment. One school of thought views summary judgments unfavorably “as necessarily in derogation of the constitutionally protected right to trial” and restricts the scope of summary judgment by rejecting any substantive comparison between a directed verdict and summary judgment.2 In contrast, recognizing the essential similarity between summary judgments and directed verdicts, an opposing school views summary judgments favorably “as a means of expediting the disposition of baseless litigation.”3
Initially, it appeared the school of thought that viewed summary judgment more favorably would prevail. In 1959, in Food Fair Stores of Florida v. Patty, 109 So. 2d 5 (Fla. 1959), the Florida Supreme Court upheld a summary judgment in a case arising from a slip and fall at a grocery store. The defendant moved for summary judgment after the plaintiff testified at deposition that she did not know how long the substance that caused her fall had been on the floor. The court of appeal had reversed the grant of a summary judgment citing to the principle that the party moving for summary judgment must carry the burden of overcoming the allegation of negligence “by tendering some proof explaining the condition.”4 In reversing the court of appeal, the Florida Supreme Court rejected this restrictive view.
Similarly, in the 1965 decision of Harvey Building v. Haley, 175 So. 2d 780 (Fla. 1965),
the Florida Supreme Court held that a defendant in a slip and fall case was entitled to summary judgment based upon the plaintiff’s deposition in which she testified that she fell on a slick floor but did not know why or how long the floor was slippery. “If the moving party presents evidence to support the claimed nonexistence of a material issue,” the court explained, “he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result—that is, evidence sufficient to generate an issue on a material fact.” In doing so, the movant “does not initially carry the burden of exhausting the evidence pro and con, or even examining all of this opponent’s witnesses.” The court explicitly recognized that a motion for summary judgment “has most of the attributes of a directed verdict motion” and held that “the summary judgment motion may be categorized as a ‘pre-trial motion for a directed verdict.’”5
The next year, however, the Florida Supreme Court reversed course. The two leading summary judgment cases in Florida, Holl and Visingardi, set forth a circumscribed version of summary judgment. In Holl, a woman entered a hospital to undergo surgery for a urinary tract infection and left “reduced to [a] vegetable state.”6 In Visingardi, a 26-year-old mother of three died in a hospital the morning after routine surgery.7 In both cases, the Florida Supreme Court held that the trial judges erred in granting summary judgment for the defendant doctors and hospitals.
In reaching these unremarkable results, the court announced a remarkably restrictive view of summary judgment. In Holl, the defendant doctors moved for summary judgment based on affidavits that their surgery and post-operative care conformed to accepted medical standards. The Supreme Court, however, held that such affidavits did not meet the movants’ burden because they failed “to explain what did cause Mrs. Holl to be reduced to the vegetable state so as to remove all doubt that the result was caused by their negligence as claimed the petitioners.”8 Thus, the affidavits “do not in themselves demonstrate conclusively that the respondent [doctors] were not guilty of malpractice so as to justify a determination that as a matter of law there was no material fact necessary to be tried.”9 In other words, a defendant in a tort case moving for summary judgment had the burden of providing an explanation of the accident that disproved his or her negligence, a burden the court had rejected in Food Fair and Harvey. “This conclusive showing,” the court explained, “is justified because the summary judgment procedure is necessarily in derogation of the constitutionally protected right to trial.”10
In Visingardi, the court held that summary judgment is appropriate only where “the record affirmatively showed that the plaintiff could not possibly prove her case, and not because she had simply failed to come forward with evidence doing so.”11 Visingardi specifically rejected the argument that a party’s burden on summary judgment reflected a party’s burden at trial.12 Although factually distinguishing it, the court also repudiated Food Fair to the extent it lessened restrictions on summary judgment.13
Following Visingardi, Florida courts repeatedly declined to recognize the fundamental similarity between a motion for directed verdict and a motion for summary judgment. In particular, they refused to apply to a party at the summary judgment stage of the proceedings the evidentiary burden that the party must carry at the directed verdict and trial stages.14 Instead, the movant has the burden of proving that no genuine issue of material fact exists regarding all issues, including those that the nonmovant must prove at trial. Moreover, the movant must prove this “irrefutably.”15 Cases have gone so far as to declare that summary judgment is improper “[i]f the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt than an issue might exist.”16
Problems with Florida’s Restrictive Standard
As stated by a dissenting judge whose views on summary judgment were later adopted by the U.S. Supreme Court, “[t]here is no point in sending a case to trial only to have the judge direct a verdict.”17 This point would appear to be self-evident. Without any compensating benefit, such an action wastes limited judicial resources and increases the costs and duration of litigation. But Florida’s current standard often compels this inefficient result. The court of appeal in Sylvester v. City of Delray Beach, 486 So. 2d 607 (Fla. 1st DCA 1986), for example, unapologetically upheld the grant of a directed verdict based upon the same facts on which it previously reversed the grant of a summary judgment.
Florida’s courts recognize that the restrictive standard burdens the parties and the courts with unnecessary expense and delay which could be avoided by simply requiring the nonmoving party to come forward with its proof establishing a genuine issue of fact concerning those issues for which it will bear the burden of proof at trial. In Graff v. McNeil, 322 So. 2d 40 (Fla. 1st DCA 1975), for example, the plaintiff in a car accident case had the burden of proving at trial that his injuries were of a permanent nature. In response to interrogatories, however, he stated that his injuries had been treated only with aspirin and that no doctor had been consulted who could testify that the injury was permanent. The trial court granted the defendant’s motion for summary judgment, but the court of appeal reversed on the basis that the movant had not met its initial burden of proving a negative.
While it dutifully applied Florida’s restrictive standard, the court of appeal could not refrain from voicing its frustration. “[M]uch time and expense,” the majority opinion noted, “would have been saved and this appeal (which has been carefully briefed and argued) would have been rendered unnecessary had appellant followed the simple expediency of filing an affidavit in support of his claim of permanent injuries.”18 In other words, limited judicial resources would have been conserved and the litigants saved time and money if only the plaintiff had come forward with its proof showing a genuine issue of fact regarding permanency of the injury, a burden he would have to carry at trial in any event. As the dissent explained, “it does not seem to me too great a burden for [the plaintiff]. . . to have recited those facts [upon which he relied to prove permanency] in an affidavit opposing the motion for summary judgment.”19
A recurring problem in this regard is Holl’s suggestion that the moving party bears some burden to disprove the nonmovant’s theory of the case in order to eliminate any issue of fact. In Suggs v. Allen, 563 So. 2d 1132 (Fla. 1st DCA 1990), for example, it was reversible error to grant summary judgment to the defendant where an elderly babysitter sued for injuries that resulted when she fell while alone in a house with an infant. No witnesses saw the accident, and the plaintiff testified at deposition that she did not know what caused her to fall and could not remember the accident, although she had been told that a rug was wadded up under her when attendants arrived at the scene. The summary judgment record was devoid of any evidence supporting the allegation in the complaint that the floor was newly waxed.
The court of appeal held that the defendant was not entitled to summary judgment in these circumstances because the movant’s “burden is satisfied only where the movant clearly establishes what the true factual picture is, and thereby removes any serious doubt as to the existence of any genuine issue of material fact.”20 The court did not address the problem that, unless additional facts were forthcoming, a full-blown trial would fail to shed any additional light on “the true factual picture.” Instead, it sent the matter to trial even though the record could not support a jury verdict for the plaintiff.
The Celotex Trilogy
To address similar problems and to resolve a growing dispute in the federal courts regarding whether the scope of summary judgments in federal court should be broadened or constricted, the U.S. Supreme Court in 1986 decided Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The competing schools of thought in this regard are well summarized in the majority and dissenting opinions in the lower appellate court case.21 In Celotex, the highest court in the land weighed in on the side that viewed summary judgments favorably. “Summary judgment,” the Court ruled, “is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’”22
In Celotex, a widow sued over the death of her husband allegedly caused by exposure to asbestos. One year after the suit was filed, the defendant Celotex Corporation moved for summary judgment. Celotex based its motion on the fact that the widow, when requested in discovery, failed to identify any evidence that the deceased had ever been exposed to Celotex’s products. The district court granted summary judgment, but the circuit court of appeal reversed holding that Celotex had failed to meet its initial burden as movant.
The Supreme Court determined that Celotex had in fact met its initial burden and reversed the court of appeal. Firmly holding that the standard for a summary judgment mirrors the standard for a directed verdict, the Supreme Court stated:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.23
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, another case in the trilogy, involved a libel suit against a journalist. Applying the evidentiary standard at trial, the Supreme Court held that the plaintiff, in responding to the defendant journalist’s motion for summary judgment, was required to demonstrate it could meet its burden at trial of proving actual malice by clear and convincing evidence. “[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict,” the Court held, “necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.”24 & #x201c;It makes no sense to say that a jury could reasonably find for either party,” the Court explained, “without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards.”25
Similarly, in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), the Supreme Court held that the court reviewing a summary judgment motion was required to weigh the evidence—to the limited extent necessary to determine if the inferences relied upon by the nonmoving party were plausible in the context of the litigation.
To date, the Florida appellate courts have rebuffed suggestions that they adopt the federal Celotex standard. The First District Court of Appeal, for example, rejected an argument that “turned upon the federal summary judgment standard,. . . a standard that has not been adopted by the Florida Supreme Court.”26 Similarly, the Third District Court of Appeal ruled that, “although the judgment before us was plainly erroneous under any standard, including Celotex, it should be emphasized that, to the extent that they tend to loosen the restrictions on the use of summary judgment, these [federal] cases. . . do not represent the law of Florida on the issue.”27 & #x201c;Our law,” explained the Third District, “continues to be that expressed in Holl, 191 So. 2d at 40; Visingardi, 193 So. 2d 601, and the numberless cases which follow them.”28
Florida’s Rationale Rebutted
The rationale for Florida’s refusal to use the directed verdict standard in reviewing summary judgments is that “[a]lthough a court’s actions on both a motion for summary judgment and a motion for a directed verdict entail deciding whether the movant is entitled to a judgment as a matter of law, the postures at the times of the two motions are different, and the considerations are different.”29
It is, of course, true that a summary judgment occurs before trial while a directed verdict occurs during trial. This difference in timing, however, supports a different standard only if the evidence available to the parties differed at the pretrial and trial stages. For example, the standard for summary judgments should be more restrictive if, at the time the motion for summary judgment is heard, a party has not had sufficient opportunity to take discovery, investigate its case, or otherwise marshal its evidence.
The Celotex standard, however, is premised on the fact that summary judgment is considered only “after adequate time for discovery.”30 Both the Florida and federal rules allow a party to respond to an opponent’s summary judgment motion by filing an affidavit that the discovery or affidavits needed to contest the motion are unavailable, at which point the court may deny the summary judgment or continue it to allow the discovery to be obtained.31 Accordingly, since summary judgment occurs only after the parties have had an adequate opportunity to complete their discovery, the parties have access at the summary judgment stage to the same evidence that they will present at trial. In this situation, there is no reason to ignore the parties’ respective substantive burdens of proof at trial when reviewing a summary judgment motion.
In ruling on a motion for a directed verdict, a court is obviously required to consider the substantive burden of proof that the parties must carry at the trial. Otherwise, the court could not accurately determine if an issue of fact existed to be submitted to the fact-finder. When reviewing a motion for directed verdict in a negligence case, for example, a court does not waste time or effort deciding if the defendant can disprove causation because the defendant has no such burden. Instead, since the plaintiff carries the burden of proving causation at trial, the inquiry focuses directly on whether the evidence in the record is sufficient for a jury to find that causation exists, not on the irrelevant issue of whether the defendant can disprove causation.
There is no reason why the same should not hold true for summary judgment. The substantive evidentiary burden of proof that the respective parties must meet at trial is the only touchstone that accurately measures whether a genuine issue of material fact exists to be tried. To use a more restrictive standard in reviewing a summary judgment virtually ensures that the review will not accurately detect the absence of such an issue. A restrictive standard, like Florida’s, serves only to skew the analysis in a manner that unnecessarily prolongs litigation, increases costs, and wastes limited judicial resources in derogation of Rule 1.010 which instructs that the Florida Rules of Civil Procedure should be “construed to secure the just, speedy, and inexpensive determination of every action.”
Part of the analytical problem reflected in Florida’s summary judgment standard may arise from the fact that the standard is so often discussed in the context of torts. In general, as the Florida cases emphasize, summary judgments should be entered sparingly in negligence cases. But the normal rationale to explain this rule—that summary judgments are in derogation of the constitutional right to a jury trial—is overly broad. Used properly, the summary judgment procedure protects the right to jury trial by reserving it for only those cases where a question of fact exists for the jury to decide.
A more narrow and accurate rationale is simply that the core issue in a negligence case is whether the defendant’s conduct violated the applicable standard of care. This issue is predominately one of ultimate fact that normally can be resolved only by the finder of fact because it turns on an ad hoc “examination and assessment of human behavior within the common experience of the jurors.”32 In other words, whether a defendant acted negligently is typically a question of fact to be resolved by the jury. This principle frequently applies even where the historical facts concerning the circumstances of the accident are undisputed. For this reason, under a Celotex -type standard, a trial court should continue to be cautious in entering summary judgment in a matter turning on negligence as well as fraud, intent, or a state of mind.
Ignoring Florida’s Standard
A final indication that Florida’s restrictive summary judgment standard is outdated is that more and more trial and appellate courts are simply ignoring it. While, as mentioned above, two district courts of appeal explicitly declined to adopt Celotex, one of those courts subsequently cited Celotex when reversing a summary judgment.33 Meanwhile, several trial courts have relied upon Celotex ’s standard in granting summary judgments.34 One commentator has suggested that the Supreme Court itself has silently ignored its own standard in at least one case.35
The trend away from the restrictive Florida summary judgment standard is best documented in two dissenting opinions by Judge Altenbernd of the Second District Court of Appeal. In Lich v. N.C.J. Investment Co. , 728 So. 2d 1191, 1194 (Fla. 2d DCA 1999), the majority affirmed a trial court’s grant of summary judgment for certain defendants in a personal injury case based on three affidavits that presented facts undermining most, but not all, of plaintiff’s possible theories of liability. Plaintiff filed nothing in response. Citing the difference between the federal Celotex standard and the Florida standard established by Holl and Visingardi, Judge Altenbernd’s dissent noted that, because the defendants did not “rule out” a “possibility” that might support plaintiff’s recovery, the movants had not met their “heavy burden of proving a negative conclusively.” Thus, the dissent concluded, “[i]t may be humane to shoot this horse today, but I would let it hobble a few more furlongs down the track.”36
Similarly, in Dula v. Fehr, 744 So. 2d 604, 605 (Fla. 2d DCA 1999), Judge Altenbernd dissented when the majority affirmed without opinion the grant of summary judgment. Noting that “[u]nder the federal standard for summary judgments, this summary judgment might be correct,” Judge Altenbernd carefully explained how the movants had failed to meet the requirements of Florida’s restrictive summary judgment standard. For this reason, he indicated that he would keep the case alive and send it back to the trial court although conceding “[t]his court’s decision to affirm the summary judgment in favor of these defendants is almost certainly an accurate prediction of the result that would occur if we reversed for further proceedings.”37
This judicial trend to quietly ignore Florida’s traditional summary judgment standard caused Judge Altenbernd to caution lawyers not to rely upon it. “Trust in the law is good,” he wrote. “However, in an era when there is increasing pressure upon the judiciary to control frivolous lawsuits, real and imagined, our legal rhetoric and our legal process do not always align. In the current climate, plaintiff’s counsel would do well to file Celotex style affidavits and other evidence in opposition to motions for summary judgment.”38
Rule Change or Judicial Opinion?
The time has come for the Florida Supreme Court to clarify summary judgment practice by adopting the Celotex standard. Obviously, this modification could be made by formal amendment to the rules of civil procedure. Clarifying the standard by amending the rule would have the benefit of allowing public input and debate and providing formal notice to the legal community of the new standard. Moreover, at least one court of appeal indicated that an amendment to the rules would be needed because the Celotex standard is “based upon language in Fed. R. Civ. P. 56, which is not contained in Fla. R. Civ. P. 1.510.”39
Florida’s Rule l.510 is modeled after and is almost identical to Federal Rule 56. The federal rule, however, contains the following two sentences that are not included in the Florida rule:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.40
This language was specifically referenced in Celotex,41 Matsushita,42 and Anderson.43
Nevertheless, of the 35 states that have adopted Celotex, only three—California, Louisiana, and New Jersey—waited for a rule change to do so.44 Florida should join the majority of these jurisdictions that recognize the authority of the courts to continually adjust and update their interpretation of the rules by judicial opinion. The Florida Supreme Court, which established the current interpretation of the rule by judicial opinion, certainly has the prerogative and responsibility to clarify its interpretation and bring it in line with the best of modern practice without waiting for a rule change.
The absence in Florida’s Rule 1.510 of the two sentences quoted above from Federal Rule 56 should not deter the Florida Supreme Court from clarifying the summary judgment standard by judicial decision. These sentences were added to Federal Rule 56 as part of a 1963 amendment intended, according to the U.S. Supreme Court, “to overturn a line of cases. . . that had held that a party opposing summary judgment could successfully create a dispute as to a material fact asserted in an affidavit by the moving party simply by relying on a contrary allegation in a well-pleaded complaint.”45 Florida long ago rejected the principle that mere allegations could be used to contest facts presented in affidavits in summary judgment—a change in Florida’s standard effectuated by judicial decision, not by a formal change in the rules.46 Moreover, the U.S. Supreme Court did not adopt the Celotex standard until 23 years after these two sentences were added to the federal rule. This gap in time strongly suggests that these two sentences are not the basis for the difference between the federal and Florida standard discussed in this article.
This conclusion is bolstered by the fact that Florida once had a Celotex -type standard for summary judgment without its rule ever containing these two sentences. As discussed above, in the 1965 case Harvey, 175 So. 2d at 780, the Florida Supreme Court recognized that a motion for summary judgment “has most of the attributes of a directed verdict motion” and observed that “the summary judgment motion may be categorized as a ‘pre-trial motion for a directed verdict.’”47 The subsequent history of Harvey, like much of Florida’s summary judgment jurisprudence, is inconsistent. It has been ignored, but never overruled, and continues to be cited in the official comments to the Florida summary judgment rule.
Harvey shows that the adoption of a Celotex -type standard by judicial decision would constitute not a departure from, but a return to, principles already embraced by Florida’s highest court. Modifying the summary judgment standard in Florida by judicial decision, therefore, would merely reflect the classic process of common law reasoning whereby, as once described by one of the greatest common law judges, Sir Edward Coke, “out of the old fields must come the new corne.”48
1 Kourouvacilis v. General Motors Corp. , 575 N.E.2d 734, 738 (Mass. 1991). For a list of jurisdictions adopting and rejecting the Celotex trilogy, see appendix I to this article.
2 Holl , 191 So. 2d at 48. See text at supra notes 6–17.
3 Food Fair Stores of Florida, Inc. , 109 So. 2d 5, 7 (Fla. 1959). See text at supra notes 4 and 5.
4 Id. at 6.
5 Haley , 175 So. 2d at 782–83.
6 Holl , 191 So. 2d at 45.
7 Visingardi , 193 So. 2d at 602.
8 Holl , 191 So. 2d at 45.
9 Id. (emphasis added).
10 Holl , 191 So. 2d at 48.
11 Visingardi , 193 So. 2d at 605.
12 Id.
13 Id.
14 Johnson v. Circle K Corp. , 734 So. 2d 536, 537 (Fla. 1st D.C.A. 1999); Reaves v. Armstrong World Industries, Inc ., 569 So. 2d 1307, 1310 (Fla. 4th D.C.A. 1990); Suggs v. Allen , 563 So. 2d 1132, 1133 (Fla. 1st D.C.A. 1990); Zygmont v. Smith , 548 So. 2d 902, 903 (Fla. 1st D.C.A. 1989); Sylvester v. City of Delray Beach , 486 So. 2d 607, 608 (Fla. 4th D.C.A. 1986); Vilardebo v. Keene Corp ., 431 So. 2d 620, 622 (Fla. 3d D.C.A. 1983).
15 Tamm v. Bradley , 696 So. 2d 816 (Fla. 2d D.C.A. 1997).
16 Keough v. Wimpy , 585 So. 2d 302, 303 (Fla. 2d D.C.A. 1991) (emphasis added). This extreme language recurs throughout the case law . See, e.g., Johnson v. Circle K Corp ., 734 So. 2d 536 (Fla. 1st D.C.A. 1999); Florida East Coast Railway Co. v. Metropolitan Dade County , 438 So. 2d 978 (Fla. 3d D.C.A. 1983).
17 Catrett v. Johns-Manville Sales Corp. , 756 F.2d 181, 188 (D.C. Cir. 1985) (Bork, J., dissenting), rev’d sub nom. Celotex Corp. v. Catrett , 477 U.S. 317 (1986). For a Florida case embracing this unremarkable concept, s ee Martin Petroleum Corp. v. Amerada Hess Corp ., 769 So. 2d 1105, 1108 (Fla. 4th D.C.A. 2000).
18 Graff , 322 So. 2d at 44.
19 Id. at 45.
20 Suggs, 563 So. 2d at 1133.
21 Sylvester, 486 So. 2d 607.
22 Celotex , 477 U.S. at 327.
23 Id. at 322–23.
24 Anderson , 477 U.S. at 252.
25 Id . at 254–55.
26 Green v. CSX Transportation, Inc., 626 So. 2d 974, 975 (Fla. 1st D.C.A. 1993) (citations omitted).
27 5G’s Car Sales, Inc. v. Florida Department of Law Enforcement , 581 So. 2d 212 (Fla. 3d D.C.A. 1991).
28 Id. at 212.
29 Sylvester v. City of Delray Beach , 486 So. 2d 607, 608 (Fla. 4th D.C.A. 1986).
30 Celotex , 477 U.S. at 322.
31 Fla. R. Civ. P. 1.510(f); Fed. R. Civ. P. 56(f).
32 William W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact , 99 F.R.D. 465, 471 (1984).
33 Weaver v. School Board of Leon County , 661 So. 2d 333 (Fla. 1st D.C.A. 1995).
34 Robbins v. Mori , 44 Fla. Supp. 2d 64 (Fla. 11th Cir. 1990), aff’d , 541 So. 2d 778 (Fla. 3d D.C.A. 1989)l; Bystrom v. Siddha Yoga Dham , 27 Fla. Supp. 2d 105 (Fla. 11th Cir. 1987).
35 B. Berman, Florida Civil Procedure 617 (1999), citing Launders v. Milton , 370 So. 2d 368 (Fla. 1979).
36 Lich, 728 So. 2d at 1193 (Altenbernd J., dissenting).
37 Dula, 744 So. 2d at 604.
38 See Lich , 728 So. 2d at 1194 (Altenbernd J., dissenting).
39 See 5G’s Car Sales, Inc. , 581 So. 2d at 212.
40 Cf. Fed. R. Civ. P. 56(e) with Fla. R. Civ. P. 1.510(e). The other major difference is in the schedule for the responsive affidavits. Cf. Fed. R. Civ. P. 56(e) with Fla. R. Civ. P. 1.510(c). Otherwise the words contained in the rules are virtually identical, although the Florida version has a more colloquial word order.
41 Celotex , 477 U.S. at 324.
42 Matsushita , 475 U.S. at 586 n.11.
43 Anderson , 477 U.S. at 256.
44 See appendix to this article.
45 Adickes v. S.H. Kress and Co. , 398 U.S. 144, 160 n.20 (1970).
46 See, e.g., Harvey Building, Inc. v. Haley , 175 So. 2d 780, 782 (Fla. 1965); Reflex, N.V., v. Umet Trust , 336 So. 2d 473 (Fla. 3d D.C.A. 1976). This erroneous principle, however, has an unnerving tendency to creep back into the case law under Florida’s restrictive summary judgment standard. See Sylvester v. City of Delray Beach , 486 So. 2d 607, 608 (Fla. 4th D.C.A. 1986) (“at summary judgment all proper pleadings of the non-movant are taken to be true. . . . ”).
47 Harvey, 175 So. 2d at 782, 783.
48 Theodore F.T. Plucknett, Bonham’s Case and Judicial Review , 40 Harv. L. Rev. 30 n.10 (1926), citing 4 Co. Inst. 109.
1) States adopting or citing with approval to the Celotex trilogy:
Alabama, Ex parte General Motors Corp. , 769 So. 2d 903 (Ala. 1999).
Arizona, Orme School v. Reeves, 802 P.2d 1000, 1009 (Ariz. 1990) (en banc).
California, Aguilar v. Atlantic Richfield Co., 24 P.3d 493, 512 (Cal. 2001) (after rule change).
Connecticut, Burnham v. Karl and Gelb, P.C., 717 A.2d 811 (Conn. Ct. App. 2001).
Delaware, Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
District of Columbia, Hill v. White, 589 A.2d 918, 921 n.8 (D.C. App. Ct. 1991).
Hawaii, First Hawaiian Bank v. Weeks, 772 P.2d 1187, 1190 (Hawaii 1989).
Idaho, Dunnick v. Elder, 882 P.2d 475, 478–79 (Idaho Ct. App. 1994).
Illinois, Ray Dancer, Inc. v. DMC Corp. , 594 N.E.2d 1344, 1351 (Ill. Ct. App. 1992).
Iowa, Davis v. United Fire & Casualty Co. , 500 N.W.2d 725 (Iowa Ct. App. 1993).
Kansas, Sharples v. Roberts, 816 P.2d 395, 395 (Kan. 1991).
Louisiana, Anders v. Andrus, 773 So. 2d 289, 291 (La. Ct. App. 2000) (after rule change).
Maine, Corey v. Norman, Hanson & Detroy, 742 A.2d 933 (Me. 1999).
Maryland, A.J. Decoster Co. v. Westinghouse Electric Cor p., 634 A.2d 1330, 1338 (Md. Ct. App. 1994).
Massachusetts, Kourouvacilis v. General Motors Corp. , 410 N.E.2d 734, 739 (Mass. 1991).
Michigan, McCart v. J. Walter Thompson USA, Inc. , 469 N.W.2d 284, 290 n.12 (Mich. 1990).
Minnesota, Prestressed Concrete, Inc. v. Bladholm Bros. Culvert Co. , 498 N.W.2d 274, 276 (Minn. 1993).
Mississippi, Williamson ex rel Williamson v. Keith, 786 So. 2d 390 (Miss. 2001).
Nebraska, Anderson v. Service Merchandise Co. , 485 N.W.2d 170, 174 (Neb. 1992).
Nevada, Maine v. Stewart, 857 P.2d 755, 759 (Neb. 1993).
New Jersey, Housel v. Theodoridis, 715 A.2d 1025, 1027 (N.J. App. 1998) (after rule change).
New York, Duane v. Prescott, 521 N.Y.S.2d 459, 461 (S. Ct. App. Div. 1987).
North Carolina, Corum v. Univ. of North Carolina, 413 S.E.2d 276, 287 (N.C. 1992).
North Dakota, Estate of Stanton v. Stanton, 472 N.W.2d 741, 743 (N.D. 1991).
Ohio, Barney v. Chi Chi’s, Inc. , 616 N.E.2d 269, 271 (Ohio Ct. App. 1992)
Pennsylvania, Godlewski v. Pars Manufacturing Co., 567 A.2d 106 (Pa. Sup. Ct. 1991).
Rhode Island, UXB Sand & Gravel, Inc. v. Rosenfeld Concrete Corp. , 599 A.2d 1033, 1037 (R.I. 1991).
South Carolina, Harris v. Rose’s Stores, Inc. , 433 S.E.2d 905, 906 (S.C. 1993).
South Dakota, Weiss v. Van Norman, 562 N.W.2d 113, 116 (S.D. 1997).
Tennessee, Wilson v. Kellwood Co. , 817 S.W.2d 313, 317 (Tenn. Ct. App. 1991).
Utah, Burns v. Cannondale Bicycle Co. , 876 P.2d 415, 420 (Utah Ct. App. 1994).
Vermont, Kelly v. Town of Barnard, 583 A.2d 614, 619 n. 5 (Vt. 1990).
Washington, White v. Kent Medical Center, Inc., 810 P.2d 4, 9 (Wash. 1991)
Wisconsin, Yahnke v. Carson, 613 N.W.2d 102 (Wis. 2000).
West Virginia, Williams v. Precision Coil, Inc., 459 S.E.2d 329 (W.Va. 1995)
2) States rejecting the Celotex trilogy:
Alaska, Moffatt v. Brown, 751 P.2d 939, 943 (Ala. 1988).
Florida, 5G’s Car Sales, Inc. v. Florida. Dep’t of Law Enforcement, 581 So. 2d 212 (Fla. 3d D.C.A. 1991).
Georgia, First Union Nat’l Bank of Georgia. v. Reisbaum, Co., 378 S.E.2d 317 (Ga. Ct. App. 1989).
Indiana, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994).
Kentucky, Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 481 (Ky. 1991).
Missouri, ITT Commercial Finance v. Mid-Am Marine, 854 S.W.2d 371, 379-80 (Mo. 1993).
New Mexico, Bartlett v. Mirabal, 999 P.2d 1062, 1069 (N.M. Ct. App. 2000).
Oklahoma, Kating v. City of Pryor, 977 P.2d 1142 (Okla. 1999).
Oregon, Jones v. General Motors Corp. , 939 P.2d 608 (Or. 1997).
Texas, Lesbrookton, Inc. v. Jackson, 796 S.W.2d 276, 286 (Tex. Ct. App. 1990).
Virginia, Realtors v. Glenn, 2001 WL 587489, *5 (Va. Cir. Ct. 2001).
Thomas Logue is an assistant county attorney for Miami-Dade County. He received his J.D. in 1982 from Duke University School of Law where he served on the editorial board of the Duke Law Journal.
Javier Alberto Soto received his B.A. from Florida State University in 1991 and his J.D. from Georgetown University Law School in 1995. He has worked as a litigator for the Miami-Dade County Attorney’s Office and for the law offices of Holland and Knight. He currently serves as chief of staff for Mayor Alex Penelas of Miami-Dade County.
