In Jackson v. Florida Department of Transportation, 2025 WL 2881680 (Fla. 5th DCA Oct. 10, 2025), an action was brought against the Department of Transportation and the contractor who built a portion of a public sidewalk where plaintiff tripped. When deposed, the plaintiff 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 plaintiff’s retained engineering expert inspected the sidewalk and opined that the uneven sidewalk constituted a tripping hazard because the vertical misalignment at the expansion joint was greater than ½ inch, in violation of the Florida Building Code.
The appellate court found that the trial court did not err by entering summary judgment in favor of defendants based on the conclusion that the less-than-one-inch vertical misalignment in public sidewalk was so open, obvious, and ordinary that it did not constitute a dangerous condition as a matter of law. More importantly, the appellate court also found that the trial court properly rejected plaintiff’s expert's opinion that building code applied to public sidewalk at issue where express scope of the code prohibits its application to the right-of-way sidewalk where plaintiff fell, and expert was unable to provide any support for his novel interpretation applying the building code to a public sidewalk unconnected to any building or structure. The court noted that “[w]hether the Florida Building Code is applicable to this case ultimately is a question of law belonging to the court, not the witness.” See Jackson at *3, quoting Lindsey v. Bill Arflin Bonding Ag., Inc., 645 So. 2d 565, 568 (Fla. 1st DCA 1994) (“The legal effect of a building code presents a question of law for the court, not a question of fact for the jury.”) (citation omitted).
This case is important in defending maritime cases, as we are seeing more and more plaintiffs utilizing engineering experts applying building code standards to non-building code matters, including vessels, docks, boat show ramps and other such places. Many judges choose to refer the matter to the jury rather than address the applicability of the Florida Building Code to a given case, which Jackson confirms is something that the court should decide. Jackson will be important ammunition for the defense, even if a sidewalk is not involved.
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