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Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment


Speculative and inadmissible testimony should not be considered on a summary judgment.

This point is illustrated in the wrongful death case of Panzera v. O’Neal, 40 Fla. L. Weekly D2661a (Fla. 2d DCA 2015).  In this case, the undisputed evidence was that the decedent, wearing a dark colored shirt, was killed trying to cross an interstate at 3am.   He was killed by a semi tractor-trailer driving under the speed limit that tried to avoid the accident. The Florida Highway Patrol responded to the accident and reported that the decedent caused the accident and the driver of the semi could have done nothing to cause or avoid the accident.

The estate of the decedent filed a wrongful death action (founded in negligence). The defendants moved for summary judgment based on the undisputed evidence. The plaintiff-estate responded based on inadmissible and speculative evidence of the decedent’s folks.   The trial court granted summary judgment and the appellate court affirmed. In affirming, the appellate court gave a great discussion of summary judgments, particularly summary judgments involving negligence actions:


In a negligence action, summary judgment is improper [u]nless a defendant can establish unequivocally the absence of negligence[ ] or that the plaintiff’s negligence was the sole proximate cause of the injury. The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail. Once the moving party has met this heavy burden, the nonmoving party must offer admissible evidence that shows the existence of a genuine issue of material fact. Many litigants labor under the misconception that they need only argue or proffer any fact that they believe to be in conflict to survive a motion for summary judgment. However, to prevail it must be admissible evidence that creates a colorable issue of material fact.


The estate relied solely on the deposition testimony of Panzera’s [decedent’s] parents, wherein they surmised that O’Neal [semi-tractor’s driver] could have avoided the accident had he taken additional evasive maneuvers and that therefore he must not have been able to see Panzera before the collision occurred. Their conclusions were based only on their personal review of the scene after the accident. The Panzeras admitted that they do not have experience in accident reconstruction and were not present at the time of the accident. Therefore, their bare allegations of negligence are purely speculative lay opinion testimony, which was not admissible evidence and cannot be relied on to create a material issue of fact.

Panzera, supra (internal quotations and citations omitted).


Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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