Let’s find the law BEFORE the trial starts

THE WEEK IN TORTS

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 37

CASES FROM THE WEEK OF SEPTEMBER 18, 2026

NEW TRIAL REQUIRED WHERE TRIAL COURT TOOK JUDICIAL NOTICE OF A TWENTY-YEAR-OLD, EXPIRED FLORIDA BUILDING CODE PROVISION ON THE MORNING OF TRIAL WITHOUT NOTICE TO THE DEFENDANT, AND THEN ALLOWED THE INAPPLICABLE PROVISION TO BECOME THE CENTERPIECE OF THE PLAINTIFF’S PREMISES LIABILITY CASE

BSREP III PBG Resort, LLC v. Ginsburg, 51 Fla. L. Weekly D1885 (Fla. 4th DCA Sept. 9, 2026):

The plaintiff was walking with her husband through the defendant resort’s guest parking lot when she tripped on a missing section of asphalt and fractured her right wrist. The defect was approximately 6-8” inches long, 4-6” inches wide, and up to an inch deep. Because there were no sidewalks, guests walked across the asphalt to reach their vehicles. The plaintiff and her husband testified that overhead lights and palm trees created shifting shadows that camouflaged the defect.

On the morning of trial, immediately before jury selection, the plaintiff ore tenus asked the trial court to take judicial notice of a Florida Building Code provision limiting changes in elevation in walking surfaces. The plaintiff had never disclosed the provision during discovery or at any pretrial hearing. Defense counsel objected, explaining that he had received no written notice and questioning whether a building-code provision governing means of egress even applied to an exterior parking lot.

The trial court overruled the objection. It reasoned that the Florida Building Code was essentially statutory law subject to mandatory judicial notice.

As the appellate court pointed out, the Florida Building Code is an administrative rule, not a statute, and is subject only to permissive judicial notice and the procedural protections governing such requests, including timely written notice allowing the opposing party to prepare to meet the request.

Additionally, the provision the plaintiff gave the trial court came from the 2001 Florida Building Code, which had actually expired in 2005, and was not even contained in either version of the Building Code in effect when the plaintiff was injured or the current Code.

Still, the provision became a recurring feature of the trial. Plaintiff’s counsel questioned every defense witness about knowledge of and training concerning the Code, argued in closing that the parking lot violated the Code and argued that the violation constituted prima facie evidence of negligence.

Plaintiffs’ counsel then displayed the provision to the jury in rebuttal while brazenly criticizing the defendant for failing to call an expert to dispute its applicability—even though the defendant had first learned about the provision on the morning of trial. The trail court then instructed the jury that it had to accept the judicially noticed “facts” as true.

The jury found the defendant negligent, found no comparative negligence on the plaintiff’s part, and awarded $603,578.70.

The appellate court reversed for a new trial. It wrote that the plaintiff’s failure to provide timely written notice deprived the defendant of a meaningful opportunity to research the provision, retain an expert, or otherwise prepare a response. The trial court also failed to determine whether a provision concerning “means of egress” applied to this particular parking lot before allowing it into evidence.

The error was far from being “harmless.” The expired provision was not some peripheral evidentiary issue—it became the centerpiece of the plaintiff’s negligence case. Because the appellate court could not conclude there was no reasonable possibility that the error contributed to the verdict, it had to reverse for a new trial.

THE DUTY OWED BY A LANDOWNER DEPENDS ON THE PLAINTIFF’S STATUS AT THE TIME OF THE INJURY—TWELVE-YEAR-OLD THEME-PARK GUEST LOST BUSINESS-INVITEE STATUS AFTER SNEAKING ONTO A PERFORMANCE STAGE AND CLIMBING ON TO A PROFESSIONAL CIRCUS TRAMPOLINE

SeaWorld Parks & Entertainment, LLC v. Abougamal, 51 Fla. L. Weekly D1870 (Fla. 2d DCA Sept. 9, 2026):

The plaintiff sued the defendant after her twelve-year-old son suffered catastrophic and permanent injuries at the Busch Gardens’ Howl-O-Scream event. Around midnight, the boy and a friend entered a theater where no show was underway. The theater was open to guests, but the boy climbed up twenty-two steps, walked out onto an elevated performance stage, made his way to a four-foot-high professional circus trampoline used by acrobats to bounce as high as thirty feet, and began jumping because it “looked fun.” When he tried to dismount by leaping high into the air, he landed face-first on the ground below the stage.

The boy initially told his mother he had fallen on the theater steps, but several days later admitted what had actually happened. He also acknowledged that he knew he should not have been on the stage, felt like he was “sneaking” onto it, and knew he should not have been on the trampoline. The defendant had warning signs throughout the park prohibiting guests from touching sets or props and from engaging in horseplay, and there was no evidence of any prior guest climbing onto and jumping on the trampoline.

At trial, the defendant repeatedly moved for a directed verdict, arguing that although the boy entered the park as a business invitee, his status changed when he exceeded the scope of his invitation by climbing onto the stage and trampoline. The trial court disagreed and ruled that the boy was a business invitee throughout his time in the park.

The jury found the defendant sixty-five percent at fault, the boy twenty-five percent at fault, and the plaintiff ten percent at fault. It awarded more than $8.1 million in damages before comparative-fault reductions. The trial court later awarded the plaintiff another $375,000 in attorney’s fees and costs based on an unaccepted proposal for settlement.

The appellate court reversed. A person’s status on another’s property can change, and it is the person’s status at the time of injury that controls the duty owed. A business invitee loses that status when he or she goes beyond the portion of the premises encompassed by the invitation.

While the boy was unquestionably invited into Busch Gardens and was even permitted to enter the theater, no reasonable person could believe that a ticket to Howl-O-Scream included an invitation to climb onto an elevated performance stage and use a professional circus trampoline for kicks. His own testimony established that he knew he was somewhere he was not supposed to be. At the time he was injured, therefore, he was at most an uninvited licensee rather than a business invitee.

As a result, the defendant only owed the lesser duty applicable to an uninvited licensee or trespasser—to refrain from willful or wanton harm and, upon discovering the person’s presence, to warn of known dangers not open to ordinary observation. There was no evidence that the defendant violated either duty.

The appellate court reversed for entry of a directed verdict and the award of attorneys’ fees and remanded for entry of final judgment for the defendant.

INSURED’S FAILURE TO OBTAIN UM CARRIER’S CONSENT BEFORE SETTLING WITH TORTFEASOR DID NOT BAR UM CLAIM WHERE EVIDENCE OF TORTFEASOR’S PROBABLE INSOLVENCY REBUTTED PRESUMPTION OF PREJUDICE—CARRIER COULD NOT AVOID COVERAGE BASED ON BREACH THAT CAUSED NO PREJUDICE

Progressive American Ins. Co. v. Heimler, 51 Fla. L. Weekly D1888 (Fla. 4th DCA Sept. 9, 2026):

The plaintiff was injured in an automobile accident involving an underinsured driver who carried only $10,000 in bodily injury liability coverage. The plaintiff had $500,000 in uninsured/underinsured motorist coverage with the defendant, Progressive.

Before filing suit against Progressive, the plaintiff settled with the tortfeasor’s liability insurer for its $10,000 policy limits and executed a bodily injury release. Unfortunately, his former attorney failed to obtain Progressive’s consent to the settlement or a waiver of its subrogation rights, as required by both the policy and section 627.727(6), Florida Statutes.

After retaining new counsel, the plaintiff attempted to undo the problem. His new attorneys notified Progressive of the policy limits tender, requested a waiver of subrogation, and even sent the liability insurer a $10,000 check from their trust account in an effort to unwind the settlement.

Progressive refused, asserting instead that the plaintiff’s unauthorized settlement breached the policy and barred his UM claim. The trial court bifurcated the proceedings to first determine whether the settlement had been rescinded and whether Progressive had been prejudiced by the plaintiff’s failure to obtain its consent.

At the nonjury trial, the evidence focused on the defendant’s financial condition. She had approximately $9000 in assets and relatively low earnings. Her husband worked at Walmart earning approximately $35,000 annually, and the family had limited savings and assets. Although the family had previously received approximately $250,000 in a settlement from the same accident, most of the money had been spent on the family’s expenses and to pay off prior debt.

The trial court found that the plaintiff had not successfully rescinded the settlement but concluded that Progressive had not been prejudiced because the tortfeasor was apparently and probably insolvent, denying Progressive’s request to avoid coverage.

The appellate court affirmed.

An insured’s unauthorized settlement with a tortfeasor creates a rebuttable presumption of prejudice to the UM carrier. However, the burden then shifts to the insured to establish that the carrier was not prejudiced by the loss of its subrogation rights.

The appellate court explained that probable insolvency of the tortfeasor can overcome that presumption. The relevant inquiry is whether a reasonably prudent insurer, knowing the tortfeasor’s financial circumstances, would have accepted the settlement or instead rejected it and pursued collection efforts. The court also rejected the suggestion that its prior decisions applying a “probable insolvency” standard conflicted with decisions from other districts referring to whether the tortfeasor was, and would remain, judgment-proof.

Although reasonable minds could disagree about the significance of the tortfeasor’s financial evidence, the appellate court could not conclude that no reasonable judge could have reached the trial court’s determination, and thus the trial court did not abuse its discretion.