Please use the sidewalk

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 34

CASES FROM THE WEEK OF AUGUST 29, 2025

DEFENDANT OWED NO DUTY OF CARE RELATED TO A GRASSY MEDIAN NOT INTENDED FOR PEDESTRIAN USE—TRIAL COURT SHOULD HAVE GRANTED DIRECTED VERDICT FOR THE DEFENDANT

Sierra Orlando Properties v. Allen, 50 Fla. L. Weekly D1903 (Fla. 6th DCA Aug. 22, 2025):

While it did not used to be the case, more recent cases have reiterated the rule that a landowner owes no duty of care to pedestrians who walk in areas not intended for pedestrian use.

There are factual scenarios which act like “exceptions” to the rule. Those scenarios include evidence where the landowner expanded the scope of its invitation to the invitee, thereby creating a duty where one might not have otherwise been. In those cases, there is evidence that the landowner somehow extended the scope of the invitation to include landscaped areas, for example, by putting trash cans in the grass. In other words, there is evidence that the landowners intended for pedestrians to enter the area. Conversely, there are also cases where there is no evidence that the defendants invited or allowed the plaintiffs to enter the landscaped areas, simply some evidence that some invitees had done so anyway on their own.

Here, the evidence showed that the plaintiff was injured when stepping over a curbed barrier and onto the lid of an irrigation box in an unpaved grassy median.

There was a sidewalk adjacent to the parking lot for pedestrian use, and the sidewalk was two spaces away from the plaintiff’s car. Still, as the plaintiff’s daughter explained, the plaintiff chose to negotiate the grassy median rather than use the sidewalk because it was closer to her truck.

Simply because pedestrians use the landscaped area for ingress and egress, or just because the grass was worn down, does not give rise to a duty.

Here, the plaintiff produced no evidence to show a defendant had invited or allowed her to enter the median (for example, there was no trash can in the middle of the grass) and thus there was no evidence that the defendant created a foreseeable zone of risk regarding the grassy median. The plaintiff simply walked through an area that she was not supposed to, and fell.

The court ruled that a directed verdict for the defendant was in order.

TRIAL COURT DID NOT ABUSE DISCRETION IN FAILING TO CONSIDER DEFENDANT’S UNTIMELY RESPONSE TO SUMMARY JUDGMENT MOTION

Wellons v. Broward Water Consultants, 50 Fla. L. Weekly D1888 (Fla. 3rd DCA Aug. 20, 2025):

The defendants appealed the trial court’s entry of final summary judgment for the plaintiff. In addition to attacking the merits of the motion, they also alleged that the trial court abused its discretion by not considering their response.

The court disagreed and affirmed.

When a non-movant fails to timely serve a response required by the rule, the trial court has the discretion to consider the facts as “undisputed,” and to grant summary judgment in favor of the movant, if the motion and supporting materials show entitlement to it.

COURT REVERSES TRIAL JUDGE’S ENTRY OF NEW TRIAL FOR THE PLAINTIFFS

Rodriguez v. Anderson, 50 Fla. L. Weekly D1895 (Fla. 5th DCA Aug. 22, 2025):

The defendant in this automobile accident case admitted fault but disputed causation, permanency and damages. The trial court entered written orders prohibiting any inference or suggestion that an individual defendant would be required to pay the verdict, or that there was insurance coverage in the matter.

These comments prompted the trial court to grant a new trial (i.e., those identifying Rodriguez as “the defendant,” implying that he would be responsible for whatever was awarded).

The plaintiffs’ objections began when the defense lawyer told the venire that the defendant “accepted” that he was at fault for causing the accident and was not alleging that the plaintiffs were in any way at fault. The plaintiffs claimed that those comments, along with identifying Rodriguez as the defendant, improperly suggested that he would be individually liable on a verdict when there was insurance available.

The plaintiffs continually referenced the case of Hollenbeck v. Hooks 993 So. 2d 50 (Fla. 1st DCA 2008), where the defense lawyer had called himself a consumer justice and lawyer and made it appear as though his client was just a lone individual.

During voir dire, one of the women on the venire said she was a sympathetic person and would have sympathy for both the plaintiffs and for the defendant, “because of what he’d been through.” While there were repeated motions for mistrial and one to strike the entire panel, the trial judge reserved the ruling and did not strike the panel.

The plaintiffs sought damages of approximately $13 million for one plaintiff $15 million for the other one. The defense suggested instead that approximately $60,000 would be appropriate.

The jury awarded past medical expenses in the amounts awarded requested by the defense, awarded no future damages, and then concluded that neither plaintiff sustained a permanent injury, meaning there could be no non-economic damages either.

The trial court granted the new trial, and adopted the short order submitted by the plaintiffs that did not accurately reflect what was pronounced.

The court acknowledged that while there is often more deference given to an order granting a new trial than one denying one, the standard of review is still abuse of discretion.

Additionally, a trial court may grant a new trial on manifest weight grounds even if there is some evidence to support the verdict, but the deference given to a trial court does not grant it license to operate as a super juror by disregarding a jury’s verdict simply because the judge would have rendered a different one had it been the judge’s choice to make.

The court reminded us that it is well settled that if there’s conflicting evidence or if different reasonable inferences could be drawn from the evidence, then the question is factual and properly submitted to a jury for resolution. A new trial may only be granted then if the verdict shocks the judicial conscience or the jury has been unduly influenced by passion or prejudice. If the court grants a new trial on either one of those grounds, it must state the reasons with specificity so the decision can be effectively reviewed on appeal. The trial court said nothing about either scenario.

In fact, the court said that nothing in the trial court’s oral pronouncement or written order shed any light on why the defendant’s evidence should have been rejected. The appellate court said it could not conclude that the impugned comments were so prejudicial that the jury was misled and misperceived the weight of the evidence because of them, and that no reasonable person would conclude that the verdict was fatally tainted by the comments. The appellate court reversed for final judgment based on the verdict.

There are a couple of takeaways from this case. First, while trial judges are often loathe to enter “boilerplate” motions in limine, sometimes the rulings on generally accepted propositions are necessary to prohibit inferences or suggestions (like here, where the motion addressed any reference that an individual defendant would be required to pay a verdict or that there was insurance coverage in the matter).

Additionally, while it is always tempting to add reasoning when the trial judge asks for the preparation of an order, it’s a better bet when drafting an order to just reduce what was said, without editorializing or filling in blanks that do not exist.