negligence - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Florida Premises Liability Law — Tripping on Tree Roots

Jeffrey P. Gale, P.A. — Fri, 27 Jun 2025 15:32:22 GMT

We’ve all done it—cut across a landscaped area to save a few steps on the way from one public area to another. Most of the time, it’s harmless. But when someone trips and falls, the question arises: Who is responsible? Can the landowner be held liable? Or does the law essentially say, “cross at your own risk”?

As is often the case in the law, it depends.

Duties of Landowners

Under Florida law, landowners owe two basic duties to invitees—such as shoppers, tenants, or guests:

To maintain the premises in a reasonably safe condition; and
To warn of hidden dangers the owner knows or should know about, which are not obvious to the invitee and cannot be discovered through the exercise of reasonable care.

See Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 577 (Fla. 5th DCA 2005).

However, these duties are not without limits. One major limiting principle is the open and obvious danger doctrine.

The Open and Obvious Danger Doctrine

Some conditions—such as a clearly visible curb or a decorative rock—are considered so open and obvious that they are not deemed dangerous as a matter of law. Florida courts have repeatedly held that if a danger is open and obvious and not inherently hazardous, a property owner may not be liable even if someone is injured.

See Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012).

But the doctrine has an important exception:

“[T]he owner or possessor [may still be liable] if they should anticipate the harm despite the fact that the dangerous condition is open and obvious.”
— Aaron, 908 So. 2d at 576–77.

This exception recognizes that even obvious hazards can present an unreasonable risk under certain circumstances—such as when invitees are likely to encounter the danger out of necessity or because the risk is hard to avoid.

The Wolf Case: An Example with Limits

A leading case on the issue is Wolf v. Sam’s East, Inc., 132 So. 3d 305 (Fla. 4th DCA 2014). There, the plaintiff tripped over a tree root while walking through a landscaped area with dirt, trees, and mulch. The area had concrete walkways nearby, including one just a few feet from where the plaintiff had parked. Despite knowing about the walkway, he chose to cut across the landscaping instead.

The court sided with the property owner, concluding that tree roots in landscaped areas are not inherently dangerous and were obvious enough that no warning or corrective action was required. The court emphasized that the plaintiff could have avoided the hazard entirely by using the designated walkway.

Importantly, the court cited prior precedent:

“Landscaping features are generally found not to constitute a dangerous condition as a matter of law. A landowner has no liability for falls which occur when invitees walk on surfaces not designed for walking, such as planting beds.”
— Dampier, 82 So. 3d at 204.

However, the court’s reasoning leaves the door open: its holding hinged heavily on the availability—and proximity—of a safe alternative route.

The principle discussed in Dampier finds a practical application in the recent decision of Morris v. Capital City Bank, No. 1D2022-1365 (Fla. 1st DCA 2025). In Morris, a woman slipped and fell on an oil slick while approaching an ATM that was designed exclusively for vehicular use. Notably, there were no sidewalks, signage, or other indicators suggesting the ATM was intended for pedestrian access.

The First District Court of Appeal held that the bank’s duty to maintain its premises in a reasonably safe condition extended only to the premises’ intended use. Because the plaintiff was using the property in a manner not contemplated by the bank—namely, as a pedestrian in a drive-through area—the court found that no legal duty was owed under these circumstances. Absent a duty, there could be no breach, and summary judgment under Florida Rule of Civil Procedure 1.510 was properly entered in favor of the defendant.

Our Case: A Different Set of Facts

Our firm handled a case with facts distinguishing it from Wolf.

Our client parked in a lot bordered by 125 yards of continuous landscaping—with no designated crossing paths anywhere nearby. She took the most direct and well-worn route through the landscaping, which had clearly been used by pedestrians for years. While crossing at night, she tripped on a tree root and suffered serious injuries.

Unlike in Wolf, our client had no nearby alternative for crossing. The absence of pedestrian walkways created a foreseeable risk that people would traverse the landscaping, especially at night. Under these circumstances, we will argue that the property owner should have anticipated the harm—even though the root may have been “obvious” in the daylight.

Conclusion

Florida premises liability law does not impose a blanket rule that excuses landowners whenever an injury occurs on landscaping. While some hazards may be considered open and obvious, each case turns on its facts—including whether the injured party had a reasonable alternative, the foreseeability of pedestrian traffic, and whether the owner took reasonable steps to address the danger.

If you’ve been injured in a fall caused by a property defect or hazard, contact our office to discuss your rights. A legal evaluation of the surrounding circumstances can make all the difference.

************************************************

Contact us toll free at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Jeffrey P. Gale, P.A. // Avoiding Workers’ Compensation Immunity by Estoppel — Not So Fast!

Jeffrey P. Gale, P.A. — Mon, 12 Feb 2024 20:24:39 GMT

Florida’s civil liability and workers’ compensation systems handle legal matters for people injured or who have died in accidents. The systems have some similarities and differences. The biggest differences are that the plaintiff must prove fault to recover under civil law, and recoveries for non-economic damages (such as pain and suffering) are not available in workers’ compensation cases. It is not always obvious which remedy route is the best to follow. Most of the time, the aggrieved party does not have a choice.

Employers and fellow-employees are immune from civil lawsuits for work-related accidents. See sections 440.10 and 440.11, Florida Statutes. In other words, the workers’ compensation system is the harmed individual’s exclusive remedy.

Exceptions arise when the employer has failed to secure the payment of workers’ compensation (440.10(1) and 440.11(1)(a)), the employer commits an intentional tort (440.11(1)(b), or the fellow-employee acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence (440.11(1)).

Another exception may apply when 1) the employer makes a representation of a material fact that is contrary to a later-asserted position; 2) the harmed worker relies on that representation; and 3) the worker is damaged by changing his or her position in reliance on said representation. See Specialty Emp. Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. 1st DCA 1999) (quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). This exception is known as equitable estoppel.

In McNair v. Dorsey, 291 So.3d 607 (Fla. 1st DCA 2020), McNair was injured while carrying a tree branch to a wood chipper. The employer first asserted that there was “no compensable accident.” In a later pretrial stipulation, the employer claimed that no compensable accident occurred, and took the position that McNair’s accident did not occur within the course and scope of his employment.

After withdrawing his workers’ compensation claim, McNair instituted an action in circuit court alleging negligence on the part of his employer and a fellow-employee. The employer filed a motion for summary judgment alleging that the “accident occurred within the course and scope of [McNair’s] employment,” and that they were therefore entitled to workers’ compensation immunity. McNair argued estoppel. The employer’s motion was granted and the order granting the summary judgment was affirmed on appeal.

The First District Court of Appeal began its analysis by recognizing the applicability of estoppel in workers’ compensation cases:

Florida courts have held that “an employer may be equitably estopped from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of his or her employment.” Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)).

The court then proceeded to explain why estoppel did not apply in the case. It did so by distinguishing its facts from those in Byerley v. Citrus Publ’g, 725 So. 2d 1230 (Fla. 5th DCA 1999). It pointed out that Armstrong, the employer, asserted that “no work accident causing injury occurred at all,” id. at 610, while the employer in Byerley claimed that the “injury did not arise out [of] the course and scope of [Byerley’s] employment,” because it occurred after she “clocked out and had exited the building.” Id. at 1231.

After Byerley’s employer claimed that the accident did not happen in the course and scope of his employment, Byerley sued the employer in circuit court alleging negligence. The employer asserted that Byerley’s exclusive remedy was workers’ compensation. The trial court agreed, granting summary judgment in favor of the employer. Finding that the employer’s position created a Hobson’s choice for Byerley, the appellate court reversed the lower court’s ruling:

We think it would be inequitable for an employer to deny worker’s compensation coverage on the ground that the employee’s injury did not arise out of the course and scope of employment, then later claim immunity from a tort suit on the ground that the injury did arise out of the course and scope of employment. This argument, if accepted, would eviscerate the Workers’ Compensation Act and allow employers to avoid all liability for employee job related injuries.

By making a representation of a material fact that is contrary to a later-asserted position, the employer in Byerley met the first prong of the equitable estoppel formula. This is not what happened in McNair. As explained by the court:

McNair’s claimed accident, if it happened as he alleged, certainly occurred in the course and scope of his employment. Armstrong’s claim was that no accident causing injury occurred at all. Either the factfinder would determine that the accident occurred, in which case it was indisputably within the course and scope of employment, or that the accident did not occur, in which case there was no compensable injury.

The McNair court was also guided by Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)). Bayardo Gutierrez (“Gutierrez”) filed a petition seeking workers’ compensation benefits from his employer, Coastal, for injuries sustained while lifting concrete blocks. In response to the petition for benefits, Coastal denied the claim in its entirety including that Gutierrez’s condition “is not the result of an injury by accident arising out of and in the course and scope of employment.” Specifically, the denial of benefits stated:

The carrier has denied the claim in its entirety. The claimant did not report the alleged injury to the employer in a timely manner, as required by F.S. 440.185(1). The present condition of the claimant is not the result of an injury by accident arising out of and in the course and scope of employment. There is no accident or occupational disease. The condition complained of is not the result of an injury, as defined by F.S. 440.02(1). The claimant’s medical condition is the result of a pre-existing condition or disease. The claimant’s medical condition is personal, pre-existing and/or idiopathic in nature.

Following this denial, the claimant instituted a circuit court civil action against the employer sounding in negligence. On summary judgment, the trial court denied the employer’s workers’ compensation immunity affirmative defense. Finding that Coastal, the employer, “has taken inconsistent positions,” The First DCA affirmed the order.

The case law on the subject can be confusing. The denial language used by the employer in McNair is similar to the reasons stated in Byerley and Coastal Masonry. However, the results are very different. It appears that the courts dig behind the language to determine the actual reasons for the denials. Practitioners need to do the same before jumping to the conclusion that estoppel will be deemed.

Equitable estoppel arises infrequently in workers’ compensation cases. It is usually clear whether or not the claimed accident happened in the course and scope of employment, so employers rarely deny for that reason. Second, pursuing a civil remedy may not always be the wisest course of action to follow. In civil cases, the burden is on the plaintiff to prove negligence. In many workplace accidents, nobody is at fault. In workers’ compensation cases, fault does not have to be demonstrated; it’s a no-fault system. Finally, the quality, quantity, and timing of medical and wage loss benefits available through workers’ compensation sometimes surpass those available under the civil system.

The issues discussed in this blog can have substantial consequences. It is strongly recommended that advice of counsel be sought before the issues arise.

********************

Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Duty and Proximate Cause are Essential Elements of Every Florida Personal Injury and Wrongful Death Negligence Case

Jeffrey P. Gale, P.A. — Fri, 06 Oct 2023 21:00:59 GMT

Duty and proximate cause are essential elements of every Florida personal injury and wrongful death negligence case.

DUTY: “Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” See Kaisner v Kolb, 543 So.2d 732, 735 (Fla. 1989) (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)).

PROXIMATE CAUSE: “The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” McCain v. Florida Power Corporation, 593 So.2d 500, 502 (Fla. 1992).

While the concept of foreseeability can be relevant to both elements, the concept “relates to duty and proximate causation in different ways and to different ends.” Id. at 502. Hence, merging the two elements into a single hybrid foreseeability analysis would be incorrect.

Duty is the key that opens the courthouse doors. It is the job of the judge, rather than the jury, to decide if it exists. For this reason, establishing duty is considered a matter of law vs a question of fact. (On this issue in McCain, in footnote 1 the court does note that “to determine this legal question the court must make some inquiry into the factual allegations. The objective, however, is not to resolve the issues of comparative negligence or other specific factual matters relevant to proximate causation, but to determine whether a foreseeable, general zone of risk was created by the defendant’s conduct.”) Once the duty is established, the plaintiff may proceed to prove fault and damages, which are proximate cause factual questions decided by juries turning on the question of foreseeability. “In this context, foreseeability is concerned with the specific, narrow factual details of the case, not with the broader zone of risk the defendant created.” Id at 502-503.

In McCain, the plaintiff was injured when the blades of a mechanical trencher he was operating struck an underground cable owned by Florida Power Corporation (FPC). Before the work commenced, FPC went to the site to mark the location of its underground cables. Plaintiff alleged that the accident happened in an area marked “safe.”

The trial judge decided that FPC owed plaintiff a duty and allowed the case to proceed to trial. The jury rendered a verdict for plaintiff and awarded damages. The Second District Court of Appeal threw out the verdict. The Florida Supreme Court then reversed the Second DCA, noting that the lower court’s analysis was unclear since it opined “that the question of foreseeability is for the trier of fact,” id. at 1271 (citing Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA), review denied, 411 So.2d 380 (Fla. 1981)), while also contradictorily concluding that no duty existed as a matter of law because the specific injury suffered by McCain was not foreseeable.

In other words, the Second DCA merged the two elements — duty and proximate cause — into a single hybrid “foreseeability” analysis.

The Supreme Court pointed out that “the district court below erred in that it confused the duty and proximate causation elements, resulting in a mistaken assumption that Florida Power’s duty was to foresee the specific sequence of events that led to McCain’s injury, in light of the precautionary measures the company already had taken. See McCain, 555 So.2d at 1272 (Threadgill, J., dissenting).” Id at 504. This led to the district court deciding a factual question that should have been left to the jury. The proper inquiry was for the reviewing appellate court to determine “whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” McCain at 504.

On this point, the Supreme Court decided that, as a matter of law, FPC owed the plaintiff a duty:

Here, there can be no question but that Florida Power had the ability to foresee a zone of risk. By its very nature, power-generating equipment creates a zone of risk that encompasses all persons who foreseeably may come in contact with that equipment. The extensive precautionary measures taken by Florida Power show that it understood or should have understood the extent of the risk involved. The very fact that Florida Power marked the property for McCain itself recognizes that McCain would be within a zone of risk while operating the trencher. Id at 504.

********************

Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.