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FLORIDA LAW WEEKLY

VOLUME 50 NUMBER 41

CASES FROM THE WEEK OF OCTOBER 17, 2025

TRIAL COURT DID NOT ERR BY ENTERING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS BASED ON CONCLUSION THAT THE LESS THAN ONE-INCH VERTICAL MISALIGNMENT IN A PUBLIC SIDEWALK WAS SO OPEN, OBVIOUS, AND ORDINARY, THAT IT DID NOT CONSTITUTE A DANGEROUS CONDITION

Jackson v. Florida Department of Transportation, 50 Fla. L. Weekly D2224 (Fla. 5th DCA Oct. 10, 2025):

The plaintiff sued the FDOT and a construction contractor alleging she was injured after she tripped and fell on a public sidewalk. The trial court entered summary judgment in favor of both defendants, concluding that the less than one inch of vertical misalignment at an expansion joint in the concrete sidewalk was “open, obvious, and ordinary” and “was not an inherently dangerous condition such that it would establish a duty of care to maintain it.”

After the plaintiff made a purchase at the Speedway gas station a block from her home during one of her almost daily visits, she walked home on the sidewalk with her leashed dog and purchased items in tow. The sidewalk was on a public right of way and unconnected to any structure. The plaintiff testified she fell suddenly and without warning.

The plaintiff sued the FDOT and the contractor whose job it was to inspect and maintain the sidewalk where the plaintiff fell. When deposed, the plaintiff testified she tripped on an expansion joint of the sidewalk where one section of concrete was approximately three-quarters of an inch higher than the adjacent section. The location of her fall was captured in a photograph marked during her deposition.

More than two and a half years after the fall, the plaintiff’s retained engineering expert inspected the sidewalk. He opined that the uneven sidewalk constituted a tripping hazard because the vertical misalignment at the expansion joint was greater than half an inch. In forming his opinions, the expert relied on numerous standards and regulations, including the Florida Building Code.

Pertinent here, the expert acknowledged that the standards he cited were not written to apply to outdoor public sidewalks. However, he still believed the standards, including the Florida Building Code, could be broadly interpreted to cover public sidewalks unattached to a structure, because they lead to buildings and are part of an access route. The expert was unable to cite any authority for this interpretation, and acknowledged that his opinion was inconsistent with the FDOT Maintenance Rating Program Handbook, which prohibits single vertical misalignments greater than 1.5 inches in concrete sidewalks.

The contractor and the FDOT moved for summary judgment, requiring the movant to show the lack of any genuine dispute as to any material fact, entitling the movant to a judgment as a matter of law. A genuine dispute occurs when the evidence would allow a reasonable jury to return a verdict for the non-moving party.

In Florida, a landowner owes an invitee two distinct duties. One is a duty to use reasonable care to maintain the property in a reasonably safe condition, and the other is a duty to warn of latent dangers that should have been known to the owner or unknown by the invitee or could not be discovered through ordinary care. The duties are independent of each other.

The landowner’s duty to warn of dangers is discharged when a potential danger is open and obvious, but such condition does not relieve him or her of the duty to maintain the premises in a reasonably safe condition.

The court affirmed the trial court’s rejection of the expert testimony regarding the applicability of the Florida Building Code to a public sidewalk (a question of law the court was entitled to decide), and its finding that the minor vertical misalignment at the expansion joint where the plaintiff fell was so open and obvious and ordinary that it did not constitute a dangerous condition as a matter of law.

Accordingly, the appellate court affirmed entry of final summary judgment in favor of the two defendants.

NO ABUSE OF DISCRETION IN DENYING MOTION FOR NEW TRIAL BASED ON COMMENTS BY OPPOSING COUNSEL—VERDICT WAS ALSO NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN LIGHT OF THE CONFLICTING EVIDENCE PRESENTED

Teran v. Piloto, 50 Fla. L. Weekly D2217 (Fla. 3rd DCA Oct. 8, 2025):

While it is unclear from the opinion which party (the appellant or the appellee) was the plaintiff and which was the defendant, the appellant argued that the trial court abused its discretion in denying the motion for a new trial based on comments made by opposing counsel during closing arguments.

Upon review of the record and the challenged closing arguments, the court concluded that the trial judge did not abuse his discretion. In context, considered with the entire record of the trial, the court could not find that there was an abuse of discretion in denying the motion based on the comments. Additionally, appellate courts traditionally defer to the superior vantage point enjoyed by the trial court.

The appellant further argued that a new trial was warranted because the jury’s verdict was against the manifest weight of the evidence. However, a trial court does not abuse its discretion by denying a new trial motion if there was conflicting evidence presented at trial (conflicting testimony from two or more witnesses), which there was here. The jury’s verdict was the product of its weighing that evidence to resolve the conflicts, defeating a manifest weight argument. The appellate court affirmed the denial of a new trial.