NANCY JACKSON

v.

FLORIDA DEPARTMENT OF TRANSPORTATION AND FERROVIAL INFRASTRUCTURE, INC.

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2024-0202 LT Case No. 2021-CA-436 _____________________________

NANCY JACKSON,

Appellant,

v.

FLORIDA DEPARTMENT OF

TRANSPORTATION and FERROVIAL INFRASTRUCTURE, INC.,

Appellees. _____________________________

On appeal from the Circuit Court for Duval County. Robert M. Dees, Judge.

Brian J. Lee, of Morgan & Morgan, Jacksonville, for Appellant.

Hinda Klein, of Conroy Simberg, Hollywood, for Appellees.

October 10, 2025

SOUD, J.

Appellant Nancy Jackson filed a negligence action against Appellees Florida Department of Transportation and Ferrovial Infrastructure, Inc. alleging she was injured after she tripped and fell on a public sidewalk. The trial court entered summary final judgment in favor of both defendants because it concluded that the less-than-one-inch vertical misalignment at an expansion joint in

I.

After Jackson purchased beer and cigarettes at a Speedway gas station on Lane Avenue in Jacksonville, Florida—a location a block from her residence that she visited almost daily—she was walking home on a sidewalk with her leashed chiweenie dog and carrying her purchased items. This sidewalk was on public rightof-way and unconnected to any structure. “The next thing [she] knew, [she] was going down to the ground” suddenly and without warning. Jackson filed suit against the Department and Ferrovial, which contracted with the Department to inspect and maintain the sidewalk where Jackson fell. When deposed, Jackson testified that she tripped on an expansion joint of the sidewalk where one section of concrete was approximately ¾ of an inch higher than the adjacent section. The location of her fall was captured in the photograph she marked during her deposition:

More than two-and-a-half years after the fall, Jackson’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 ½ inch. In forming his opinions, the expert relied on numerous

II.

We review the trial court’s decision to enter summary final judgment de novo. See CAM Bradford Homes, LLC v. Arrants, 415 So. 3d 266, 267 (Fla. 5th DCA 2025), reh’g denied, (July 23, 2025). To be entitled to summary judgment, Ferrovial and the Department must show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). “[A] genuine dispute occurs when the evidence would allow a reasonable jury to return a verdict for

A.

In Florida, a landowner owes an invitee two distinct duties. See Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012); see also Kelley v. Sun Cmtys., Inc., No. 8:19-cv- 1409-T-02AAS, 2021 WL 37595, at *2 (M.D. Fla. Jan.⁵, 2021). First, the landowner must use reasonable care to maintain the property in a reasonably safe condition. See Dampier, 82 So. 3d at 206. Further, a landowner must warn an invitee of latent dangers that are or should have been known to the owner and are unknown by the invitee or cannot be discovered by him through ordinary care. See id. “These duties are independent of one another, and the breach of either duty will subject the landowner to liability.” Kelley, 2021 WL 37595, at *2. “A landowner’s duty to warn of dangers is discharged when a potential danger is open and obvious.” Tanner v. Garden Cmtys., LLC, No. 8:23-cv-2019-WFJ-TGW, 2024 WL 3920692, at *2 (M.D. Fla. Aug. 22, 2024). While an open and obvious condition discharges the owner’s duty to warn, it will not serve to relieve him of the duty to maintain the premises in a reasonably safe condition. See id. Nonetheless, obvious conditions will not constitute a breach of duty to maintain the property when: “(1) those conditions . . . are open and obvious and not inherently dangerous; or (2) those conditions that may be dangerous . . . are so open and obvious that an invitee may be reasonably expected to discover them to protect himself.” Id. (internal quotation marks omitted) (quoting Kelley, 2021 WL 37595, at *2).

B.

Further, in arriving at the conclusion that the misalignment here was so ordinary and innocuous that it was not a dangerous condition as a matter of law, the trial court correctly determined that the Florida Building Code is inapplicable to the public sidewalk on which Jackson fell. In support of his opinions that the Department and Ferrovial were negligent in causing Jackson’s fall, the engineering expert opined that the ¾-inch vertical misalignment in the sidewalk exceeded that allowed by the Florida Building Code. However, he also acknowledged the building code “appl[ies] to the construction, alteration, relocation, enlargement, replacement, repair, equipment use and occupancy of every building or structure or any appurtenances connected or attached to such buildings or structures.” Notwithstanding the express scope of the building code, in the expert’s view, “people have to be able to get into buildings, so that’s where the building code comes in. You have to be able to give people the ability to get in and out of a structure, and that’s where sidewalks come in.” Whether the Florida Building Code is applicable to this case ultimately is a question of law belonging to the court, not the

III.

Accordingly, because the trial court properly concluded that the Florida Building Code was inapplicable to this case and that the minor misalignment in the concrete was so open, obvious, and ordinary that it did not constitute a dangerous condition, the final summary judgment in favor of the Department and Ferrovial is

AFFIRMED.

It is so ordered. JAY, C.J., and MACIVER, J., concur.

7

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________