Opinion
No. 88-1979.
May 4, 1989.
Appeal from the Circuit Court for Orange County, Cecil H. Brown, J.
David K. Wittek of Wright and Fulford, Orlando, for appellant.
Mitchell J. Frank of Frank and Brightman, Orlando, for appellee.
This is an appeal from a summary judgment in a personal injury case. The trial court erred in striking an affidavit of the plaintiff which affidavit contained statements different from those she earlier made in a deposition. The affidavit was filed to defend against the defendant's motion for summary judgment. Appellee urges us to apply the rule in Ellison v. Anderson, 74 So.2d 680 (Fla. 1954) which says a party cannot defend against a summary judgment by filing an affidavit to "baldly repudiate [her] previous deposition so as to create a jury issue." It is our considered judgment that the "Ellison Rule" is not applicable here because a full reading of the deposition of the plaintiff shows she very likely was confused and unsure of her answer and thus should not be held strictly to it by granting summary disposition of her claim. Croft v. York, 244 So.2d 161 (Fla. 1st DCA 1971), cert. denied, 246 So.2d 787 (Fla. 1971). The affidavit is sufficient to raise a genuine issue of a material fact and thus prevents a summary judgment. The judgment is reversed and this cause remanded for trial.
REVERSED.
DAUKSCH and GOSHORN, JJ., concur.
SHARP, C.J., concurs in result only.