Finally Some Common Sense on the Applicability of the Florida Building Code

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.

If you are interested in receiving a copy of this decision or wish to contact us, feel free to do so at blog@miamimaritimelaw.co or 305.377.3700.

Florida Supreme Court Does 180-Degree Turn on "Daubert"

In Curiam, 2019 Fla. LEXIS 818 (Fla. May 23, 2019), the Florida Supreme Court reversed its course made in its earlier ruling that the ”grave constitutional concerns” were at play if the Daubert  standard were adopted in the State of Florida. See DeLisle v. Crane Co., 258 So. 3d 1221, 1229 (Fla. 2018).  In a nutshell, the ruling now finds that those “grave constitutional concerns” over adopting the more stringent Daubert  standard used in federal court now “appear unfounded.” The ruling made Florida the latest state (now the 37th state to do so) to adopt the Daubert  standard and reject Frye.

Daubert  (Daubert v. Merrell Down Pharm, Inc., 509 U.S. 579 (1993)) stems from a 1993 U.S. Supreme Court decision and includes a five-prong test to weigh the scientific validity of expert witness testimony. It creates a higher bar for experts, who, if challenged, may have to attend a hearing and pass judicial muster before they are permitted to testify at trial. Under the Frye standard, experts can testify based on their opinion, bringing evidence that could be somewhat new or novel, not necessarily repeatable or peer-reviewed.

The Florida Legislature passed the Daubert  standard as law in 2013, but the justices had previously ruled in Delisle that separation of powers invalidated that move because only the Court had the power to make it. But now, this apparently sudden “flip” has those of us taking cases to trial in the near future considering whether we now move to strike opposing parties’ experts for failing to meet the more stringent Daubert  standard.

The decision is still being editorially reviewed by the reporters, but we have the decision “hot off the presses.” If you wish a copy of the decision or wish to understand how this important ruling can affect a case you may have, please feel free to write us at blog@miamimaritimelaw.co.