Jurisdiction: Florida Fifth District Court of Appeal
Case No.: 5D2024-0202
Lower Tribunal Case No.: 2021-CA-436 (Duval County)
Date: October 10, 2025
Lower Court: Circuit Court for Duval County, Hon. Robert M. Dees
Panel: Soud, J.; Jay, C.J.; MacIver, J. (concur)
Counsel: Brian J. Lee for Appellant; Hinda Klein for Appellees
Overview
The Fifth DCA affirmed summary judgment for the Florida Department of Transportation (FDOT) and its contractor, Ferrovial Infrastructure, Inc., in a trip-and-fall case on a public right-of-way sidewalk. The court held that a less-than-one-inch vertical misalignment (about ¾”) at a sidewalk expansion joint was “so open, obvious, and ordinary” that, as a matter of law, it did not constitute a dangerous condition triggering a duty to warn or repair. The court also agreed the Florida Building Code does not apply to public right-of-way sidewalks unconnected to buildings, rejecting plaintiff’s expert’s contrary interpretation as legally unsupported.
Background & Procedural Posture
- Plaintiff Nancy Jackson regularly walked the public sidewalk near a Speedway gas station in Jacksonville. While walking home with a leashed dog and items in hand, she tripped at an expansion joint where one concrete slab sat approximately ¾” higher than the adjacent slab.
- Over two years later, Jackson’s engineering expert inspected and opined the joint was a tripping hazard because the offset exceeded ½”, citing standards and Florida Building Code provisions. He conceded those standards weren’t written for outdoor public sidewalks and could not cite authority extending the Code to sidewalks not attached to any structure.
- FDOT’s representative noted the agency relies on its Maintenance Rating Program (MRP) Handbook, which flags single vertical misalignments greater than 1½”, and that FDOT does not incorporate the Building Code because FDOT “builds roads,” not buildings.
- The trial court granted summary judgment for FDOT and Ferrovial, finding the minor offset open, obvious, ordinary, and innocuous, and rejecting the expert’s Building Code theory. Jackson appealed.
Issues Presented
- Whether a < 1-inch sidewalk height differential on a public right-of-way can be deemed non-dangerous as a matter of law (thus negating duty).
- Whether the Florida Building Code applies to an unattached public sidewalk to establish a standard of care or evidence of negligence.
Holding
- Affirmed. The offset was so open, obvious, and ordinary that it did not constitute a dangerous condition as a matter of law; no duty was breached.
- The Florida Building Code is inapplicable to public sidewalks not attached to a building; the trial court correctly excluded the expert’s legal conclusions about Code applicability.
Court’s Reasoning (Plain-English)
1) Open, Obvious, and Ordinary = Not Inherently Dangerous
Florida premises law recognizes two duties to invitees: (i) maintain premises in a reasonably safe condition and (ii) warn of latent dangers. While an open and obvious condition typically discharges the duty to warn, it can still factor into the maintenance duty. But some conditions are so commonplace and innocuous that courts can rule as a matter of law they are not dangerous at all.
Here, a ¾” misalignment at a sidewalk joint—common on outdoor concrete exposed to the elements—falls in that category. The court relied on authorities explaining that such minor, ordinary irregularities are not inherently dangerous, and an invitee can be reasonably expected to perceive and avoid them. The record contained no facts elevating this joint from commonplace irregularity to a hidden trap. Result: no breach of the duty to warn or maintain.
2) Building Code Doesn’t Govern Public Right-of-Way Sidewalks
Whether a code applies is a question of law for the court, not for an expert to opine on. The Florida Building Code by its express scope regulates buildings/structures and their appurtenances—not public right-of-way sidewalks unconnected to structures. The plaintiff’s expert admitted the Code wasn’t written for outdoor public sidewalks and offered no legal authority for extending it merely because sidewalks can be part of general access routes. The trial court properly rejected that novel interpretation.
Why This Case Matters (Practical Takeaways)
- Public Sidewalk Irregularities: Minor vertical offsets—especially under an inch—on public sidewalks are often deemed non-dangerous as a matter of law when open and obvious. Without additional aggravating facts (poor lighting, concealment, unusual geometry), such claims face steep odds.
- Code vs. Roadway: The Florida Building Code typically does not set the standard for public right-of-way sidewalks. Transportation agencies may instead rely on roadway/maintenance standards (e.g., FDOT MRP), which often set higher thresholds for actionable defects than building-access codes.
- Expert Boundaries: Experts can discuss facts, methods, and opinions, but cannot decide what law applies. Courts will exclude or discount expert testimony that interprets statutes or codes.
- Preservation & Timing: Long delays before inspection (here, 2½ years) can undercut causation and hazard characterization. Prompt documentation—photos, measurements, lighting conditions—matters.
- Plaintiff Strategy: To survive summary judgment in similar cases, plaintiffs typically need more than a small height differential—e.g., evidence of concealment, code/standard that actually applies, prior incidents/notice, or aggravating site conditions.
For Injured Pedestrians & Property Stakeholders
- If you’re injured: Photograph the scene immediately (include a ruler/coin for scale), note lighting/weather, identify witnesses, and preserve footwear.
- Public entities/contractors: Keep inspection and maintenance records current; understand that ordinary irregularities likely won’t constitute actionable hazards, but larger displacements or concealed defects might.
- Business owners: For private walkways/entry paths integrated with buildings, different rules and codes can apply; routine inspections and quick remediation remain best practice.
Related Reading from Boltz Legal
- What to Expect During a Lawsuit
- Ways Insurance Companies Try to Avoid Paying
- Some Homeowners Insurance Laws You Need to Know
- What Happens When Filing a Homeowners Insurance Claim
Bottom Line
The Fifth DCA drew a clear line: a sub-one-inch, open and obvious sidewalk joint on a public right-of-way is not a dangerous condition as a matter of law, and the Florida Building Code doesn’t apply to such sidewalks. With no applicable code violation and no inherently dangerous condition, summary judgment for FDOT and its contractor stands.
Today’s Insight
“Laws are the wise restraints that make men free.”
— John Milton
Knowing which laws and codes truly apply keeps claims on solid ground—and keeps courts from stretching rules beyond their proper scope.