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FLORIDA LAW WEEKLY

VOLUME 50 NUMBER 51

CASES FROM THE WEEK OF DECEMBER 26, 2025

LANDOWNER COULD BE LIABLE FOR ALLOWING A KNOWN DANGEROUS CONDITION TO FLOURISH ON ITS PROPERTY, WHERE EVIDENCE SUPPORTED FORESEEABILITY AND PROXIMATE CAUSE FOR AN OFF-PREMISES CRIMINAL ATTACK; COURT PROPERLY DENIED REQUEST FOR SETOFF

Bartley Investments, LTD. v. Menendez, 50 Fla. L. Weekly D2676 (Fla. 2d DCA Dec. 19, 2025):

The plaintiff townhome owner was attacked in her fenced courtyard by a homeless man who beat her and attempted to rape her. She sued the owner of multiple units in the same community, alleging it allowed a “known dangerous condition” to exist at a particular townhome, because it permitted (or failed to remove) occupants who allegedly conducted ongoing drug activity that drew heavy traffic and created safety risks for other residents.

The defendant argued it owed no duty to protect the plaintiff from an off-premises criminal attack by a third party. It also moved for setoff based on the plaintiff’s settlements with the homeowners’ association and management company. The trial court denied the motions, and the jury found for the plaintiff.

The Second District affirmed. On the duty issue, the court framed the issue as whether the defendant could be liable for allowing a dangerous condition to flourish at its townhome when it had the means to correct it (including by removing unauthorized occupants). The court did not view the duty as a generalized one to prevent third-party crime off premises. Under the McCain/Kaisner principles, the court found that the pleadings and evidence supported a foreseeable zone of risk

On proximate cause and the directed verdict/JNOV issues, the court held the evidence was sufficient for a factfinder to conclude the attack was reasonably foreseeable in light of the ongoing “drug hole” conditions described at the subject unit, the testimony tying violence to that environment, and the testimony that the assailant was connected to the subject townhome and would not have been there, absent the continued occupancy. Because reasonable persons could differ, the issue properly remained with the jury.

Finally, the court affirmed denial of setoff. The defendant wished to set off the prior settlements, but never sought to add or blame the settling defendants as Fabre defendants, never asserted the two settling defendants were joint and several tortfeasors with it. Defense counsel advised that its position was simply that it was not negligent, and was not blaming any other person or entity. As such, the defendant waived its right to claim a set off.

TRIAL COURT ERRED BY DENYING A RULE 1.540(B)(3) MOTION TO SET ASIDE DEFAULT WITHOUT AN EVIDENTIARY HEARING WHERE THE MOTION ALLEGED A COLORABLE FRAUD-BASED CLAIM WITH SUFFICIENT PARTICULARITY

Highsmith v. Britten, 50 Fla. L. Weekly 2648 (Fla. 2d DCA Dec. 17, 2025):

The appellant timely moved to set aside a default judgment under Florida Rule of Civil Procedure 1.540(b)(3), alleging fraud, misrepresentation, or misconduct. The trial court denied the motion without holding a hearing.

The Second DCA reversed. A trial court should conduct an evidentiary hearing when a rule 1.540(b) motion sets forth a colorable entitlement to relief. When the motion is grounded in fraud under rule 1.540(b)(3), the movant must plead the alleged fraud with particularity by setting forth the essential facts that would entitle the movant to relief, not mere legal conclusions.

Here, the motion alleged that an individual holding power of attorney over the plaintiff told the appellant the complaint was “just a legal formality” and that she did not need to respond, leading to a default judgment that adjudicated the plaintiff as owner of property the appellant contended was part of her intestate interest. The court held the motion alleged enough to warrant an evidentiary hearing and remanded for further proceedings.

SUMMARY JUDGMENT WAS IMPROPER WHERE THE ONLY EVIDENCE RELIED UPON DID NOT DEPICT THE ALLEGED TRIPPING HAZARD AND DID NOT CONCLUSIVELY NEGATE PLAINTIFF’S SWORN TESTIMONY

Reynolds v. Belk, Inc.,50 Fla. L. Weekly D2691 (Fla. 5th DCA Dec. 19, 2025):

The plaintiff alleged she tripped and fell in a Belk store over an unsecured, wide-based metal stanchion. Belk moved for summary judgment relying solely on still screenshots taken from store video.

The screenshots did not show the actual stanchion the plaintiff claimed caused her fall, and they did not show her perceiving the hazard. The trial court nevertheless granted summary judgment on the grounds that the condition was open and obvious and not inherently dangerous.

The Fifth District reversed. The appellate court explained it could not rely on the full video because it was not filed in the trial court record for appeal. On this record, the screenshots did not support the trial court’s legal conclusions and did not “conclusively, clearly, and completely” negate the plaintiff’s sworn testimony that she did not perceive the hazard before she tripped. The court held triable issues of fact remained and remanded for further proceedings.