Sometimes it is your fault

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 9

CASES FROM THE WEEK OF MARCH 6, 2026

COURT AFFIRMS SUMMARY JUDGMENT—USING A BENCH AS A STEPSTOOL BRINGS WITH IT AN OPEN AND OBVIOUS RISK–THERE WAS NO HIDDEN DANGER AND NO DUTY TO WARN OF AN OBVIOUS RISK.

Walker v. M633 LLC, d/b/a Chick-Fil-A of Deerwood Park, 51 Fla. L. Weekly D380 (Fla. 5th DCA Feb. 27, 2026):

The plaintiff fell in the playground-area at a Chick-Fil-A. Her three-year-old son was playing there, and when he called for her and she couldn’t see him, she stood on one of the benches which was not affixed to the ground and fell.

She sued for negligence (unsafe premises, inadequate lighting, failure to warn), claiming that by not securing the bench in the play area, the defendant breached its duty to her by failing to maintain the premises in a reasonably safe condition, failing to provide adequate lighting and failing to warn her of a foreseeable and unreasonably dangerous condition.

The trial court entered summary judgment for Chick-fil-A, which the court affirmed. 

The appellate court emphasized the lack of genuine issues of fact on foreseeability and notice: the bench had been used for years without issue, employees cleaned and inspected it, and both sides essentially treated it as sturdy and safe for its intended purpose. 

The court held it was not foreseeable that an adult would use a seating bench as a stepstool, and if she did, ordinary care included checking whether it was suitable for that use.

The court also treated the risk as open and obvious: using something not designed as a stepstool comes with an obvious risk, and the fact the bench was not bolted down was easily discoverable with due care. 

The court also rejected the plaintiff’s “insufficient lighting” argument on causation grounds. While she claimed that the upper area of the playground was inadequately lit, there was no causal link between that failing, and the injury she sustained when she stepped on the bench.

Ultimately, the court saw the fall as the result of the plaintiff’s choice to stand on a bench that lacked rails or features to assist with standing, and concluded that there was no dangerous condition created by the restaurant as a matter of law, affirming entry of summary judgment for the restaurant.

MERELY BECAUSE PARTY FILES A MOTION FOR COSTS EARLY, DOES NOT RENDER IT LEGALLY “PREMATURE.”

Kelly v. Cohen-Saban, 51 Fla. L. Weekly D351 (Fla. 4th DCA Feb. 25, 2026):

The trial court denied the prevailing party’s motion for costs (without prejudice) because the party filed the motion prematurely, before the entry of final judgment.

The appellate court reversed. It found that while Rule 1.525 sets the “latest point” for a party to serve such a motion (no later than 30 days after judgment), it is not a “not-before-judgment” bar.

DISMISSAL AFFIRMED AFTER PLAINTIFF’S COUNSEL FAILS TO APPEAR AT PRETRIAL CONFERENCE–TRIAL COURT WITHIN ITS RIGHTS TO REFRAIN FROM GIVING AN “ADVISORY OPINION” ON THE STATUTE OF LIMITATIONS AND ON WHETHER COUNSEL’S ACTIONS MEET THE KOZEL FACTORS, COURT ADDRESSES UNPROFESSIONALISM AND “GOTCHA” TACTICS, ESPECIALLY IN THE FACE OF OPPOSING COUNSEL’S ILLNESS.

Nguyen v. Williams, 51 Fla. L. Weekly D370 (Fla. 2d DCA Feb. 27, 2026):

The trial court entered a uniform order setting trial and a pretrial conference in this negligence case arising from an automobile accident. The order expressly required that at least one trial counsel per party be physically present at the pretrial conference, warning that failure to appear could result in sanctions and/or dismissal. 

Plaintiffs’ counsel, a solo practitioner, did not appear because she was sick. She had emailed defense counsel (who would not agree to move the hearing) and the trial court two days before the hearing. She then had her husband, who is also a lawyer in another firm, reach out to defense counsel and the court the day before the hearing, to advise that she was even sicker with flu-like symptoms that rendered her “mentally and physically” incapacitated.

The trial court dismissed the case (it was not clear if the trial court knew about the emails to it, or just believed counsel did not show up, and defense counsel never said a word).

The plaintiffs sought rehearing of the dismissal and sought clarification as to whether the dismissal was “with or without” prejudice.

The thrust of the motion for reconsideration was that the trial court dismissed based on mistaken factual assumptions about whether notice had been given and whether anyone had tried to reschedule it.

Painfully, and a bit surprisingly, the appellate court affirmed the dismissal.

It read the plaintiffs’ motion for reconsideration to have been asking the trial court to “clarify” whether the dismissal was with prejudice because the statute of limitations had run, and if so, asked whether an analysis under the Kozel factors was required.

The Second District treated the motion as an impermissible request for an advisory opinion and held that the trial court did not err by denying it.

While the court admonished lawyers to be more professional and to respect each other’s illnesses, it still affirmed dismissing the case. It criticized defense counsel’s failure to advise or remind the trial court about the illness and the rescheduling request, basically calling out the conduct as an affront to civility and professionalism, and warned that courts do not look favorably on “gotcha” litigation tactics.

The result (affirmance of the dismissal) still feels a bit odd, especially after the appellate court noted that it was unsure about how much the trial court knew before dismissal, had the discretion to reconsider its ruling…and didn’t under these circumstances.

COURT REVERSES ANOTHER ORDER ALLOWING AN AMENDMENT FOR PUNITIVE DAMAGES –A TRAILER PIPE STRIKING A WORKER IN A CONSTRUCTION ZONE MAY BE NEGLIGENCE, BUT THE PROFFERED “BAD FACTS” DID NOT CLEAR THE STATUTE’S GROSS NEGLIGENCE BAR AS TO EITHER THE DRIVER OR THE COMPANY

Mirlalda v. Mitchell, 51 Fla. L. Weekly D383 (Fla. 6th DCA Feb. 27, 2026):

This comes arose near a jobsite incident on I-4. After work one evening, the defendant driver drove through the construction area unaware that a pipe on the back of his trailer had come unsecured and was sticking out to the side.  The pipe struck the plaintiff (another worker) from behind and also hit two parked vehicles.

The plaintiff sued the driver and the related entities for negligence and asserted negligent hiring/retention/supervision claims against the company.

The plaintiff’s proffer seeking leave to amend for punitive damages against the driver focused on the driver’s history before the pipe incident. He argued gross negligence because the driver had a history of license suspensions, was allegedly driving on an expired license at the time and had a similar incident only two days earlier. 

The plaintiff also sought punitive damages against the company based on theories of both vicarious and direct liability against the company (including ratification and negligent retention theories tied to management decisions).  The trial court allowed the plaintiff to amend.

The appellate court reversed. It emphasized that punitive damages are reserved for truly culpable behavior and require a reasonable evidentiary basis for intentional misconduct or gross negligence under section 768.72.

The court also stressed that the trial court’s gatekeeping function includes relevance and noted that punitive evidence must tie to the conduct that harmed the plaintiff; not just to the defendant’s “unsavory” background.

The court concluded that the points relied on by the trial court did not reasonably support gross negligence against the driver, thereby reversing against him. Because the plaintiff failed to meet the punitive threshold against the driver, both his direct and vicarious claims for punitive damages against the company also failed for the same reasons.