Jeffrey P. Gale, P.A. /// Practice Pointer: Keep Your Eye On the Ball

Everyone is familiar with the idiom, “Keep your eye on the ball.” What it means, quite simply, is to keep one’s attention focused on the matter at hand. Lawyers must remember this during intense situations.

Last week we experienced just such an intense situation. In a case involving severe personal injuries sustained by our client, we attended a hearing on the Defendant’s motion for summary judgment. The corporate defendant was asking the court to enter a judgment that it was not vicariously liable for the negligence of its agent. In other words, Defendant was asking the court to throw out the case against it. Serious stuff.

Defendant’s motion was brought under Florida Rule of Civil Procedure 1.510, which reads in pertinent part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (bold added for emphasis).

The burden is on the moving party (in our case, the Defendant) to demonstrate the absence of genuine material facts, that no material issues remain for trial, and that the movant is entitled to judgment as a matter of law. See, Florida Rule of Civil Procedure 1.510(a).  “An issue is genuine if ‘a reasonable trier of fact could return judgment for the non-moving party,’ and ‘[a] fact is material if it might affect the outcome of the suit under the governing law.’” Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11^th Cir. 2008) and Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 247-48 (1986).

In considering a motion for summary judgment, the trial court views the facts in the light most favorable to the non-moving party, draws all reasonable inferences in favor of the non-moving party, and may not weigh evidence or make credibility determinations, which are jury functions, not those of a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11^th Cir. 2019) and Feliciano v. City of Miami Beach, 707 F. 3d 1244, 1252 (11^th Cir. 2013). Accord, Holl v. Talcott, supra; Piedra v. City of North Bay Village, supra; Villanueva v. Reynolds, Smith and Hills, Inc., 159 So. 3d 200 (Fla. 5^th DCA 2015); Rocamonde v. Marshalls of MA, Inc., 56 So. 3d 863 (Fla. 3d DCA 2011), and Moore v. Morris, 475 So.2d 666 (Fla. 1985). Further, if more than one inference can be construed from the facts by a reasonable fact finder, and only one of those inferences introduces a genuine issue of material fact, then the trial court should not grant summary judgment. Birren, supra; citing, Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d 989, 996 (11^th Cir.1990).

The bottom line is that summary judgment should be denied if there are genuine issues of material fact. In our case, there were many.

It is easy during hearings to get thrown off track by arguments made by the other side. Think of the proverbial red cape being waived in front of the angered bull. In our hearing, the defense attorney spent a good ten minutes spouting facts he claimed supported his position and the granting of Defendant’s motion for summary judgment. Since we strongly disagreed with his interpretation of the facts and the application of those facts to the law, it would have been easy for us to mistakenly get caught up trying to clean up his mess rather than keep our eye on the ball.

By keeping our eye on the ball, we stayed above the fray. When defending a motion for summary judgment, this is the proper approach. The figurative ball on summary judgment is whether there are genuine issues of material fact. Period. Rather than challenge Defendant head-on, we simply showed the court a whole set of material facts a jury could accept to decide in our favor. It was apparent that the judge had read the Defendant’s Motion for Summary Judgment and Plaintiff’s written response, both of which contained the facts the parties mentioned in the hearing, because his ruling came without hesitation after the lawyers had stopped speaking. He understood from the pleadings that there were genuine issues of material fact.

We knew coming into the hearing that the record contained many genuine issues of material fact. We were hopeful that the judge would see this and follow the law. He did. By keeping our focus on the simple MSJ standard, instead of crawling into the mud to challenge the Defendant’s facts and arguments, we made it simple for the court and avoided ‘snatching defeat from the jaws of victory’ — the subject of a future blawg — by getting off-topic.