The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ECKERT REALTY CORP.,
Appellant,
v.
ELLEN STRAZZERI,
Appellee.
No. 4D2023-2130
[October 2, 2024]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David Alan Haimes, Judge; L.T. Case No. CACE18-
024102.
Andre G. Raikhelson of Trayber Raikhelson Law Group, PLLC, Boca
Raton, for appellant.
J. Samantha Vacciana and David Casals of Trial Lawyers of Florida,
Fort Lauderdale, for appellee.
KUNTZ, J.
Eckert Realty Group appeals the circuit court’s judgment for Ellen
Strazzeri. We agree with Eckert that the court erred in denying Eckert’s
motion for directed verdict and reverse.
Background
Strazzeri sued Eckert for premises liability. At trial, Strazzeri explained
that she worked at Deer Creek Real Estate, a business located in the office
complex where she fell, for over four years. During that time, Strazzeri
traversed the ramp where she fell “hundreds of times.” On the day
Strazzeri fell, she wore “little wedge” shoes, which had a two-and-a-half-
to three-inch lift. As she walked down the ramp, her leg “twisted[] and
[she] knew . . . it broke.” Strazzeri fell backward onto the ground and felt
“excruciating pain” in her “leg and . . . ankle.” She testified that the culprit
was “the uneven slope from the ramp.”
John Szerdi, an architect, provided expert testimony concerning the
ramp’s technical aspects and Florida’s building requirements. He
explained that the ramp maintained an inconsistent slope. While the
bottom of the ramp sloped at an approximate 12 percent angle, the upper
portion’s slope was “much less,” at “around 10 percent.” Comparatively,
the Americans with Disabilities Act requires ADA-compliant “walking
surfaces” to be sloped no steeper than five percent, while “ramps” may be
sloped no steeper than eight and one-third percent. Moreover, Szerdi
explained that the Florida Building Code adopts the ADA and applies its
guidelines to Florida structures. When asked whether “the [ramp] was too
steep and uneven,” Szerdi answered that “[i]t was steeper than general
practice in code would require to be to exit out at a level change that much
in that short of a distance.”
At the close of Strazzeri’s case, Eckert moved for a directed verdict.
Eckert argued that Strazzeri failed to put on evidence about (1) her injuries’
cause, and (2) Eckert’s actual or constructive knowledge that the ramp
was dangerous. The court denied the motion.
Next, Edward Eckert testified as to his knowledge, or lack thereof,
concerning the ramp’s dangerousness. He explained that he purchased
the building in 1988 and that a board-certified general contractor installed
the ramp in 1999. After the ramp was completed in 1999, it passed
inspection. Additionally, Eckert resurfaced and restriped the office’s
parking lot every five to six years. While each resurfacing required an
inspection, no inspector ever criticized Eckert’s ramp. Mr. Eckert also
testified that during the years between the ramp’s construction and
Strazzeri’s fall, nobody fell on the ramp. He estimated that the ramp was
traversed 1,856,000 times during those years.
Later, the jury returned a verdict finding Eckert 70 percent liable for
Strazzeri’s injuries. Eckert renewed its motion for directed verdict, and
the court denied the motion.
Analysis
Eckert argues that Strazzeri failed to prove Eckert had actual or
constructive knowledge that the ramp was dangerous. We agree.
“In premises liability cases, the plaintiff [ordinarily] must show the
defendant had actual or constructive notice of the dangerous condition on
its premises . . . .” Dudowicz v. Pearl on 63 Main, Ltd., 326 So. 3d 715,
719 (Fla. 1st DCA 2021). A premises owner has constructive knowledge
of a hazard when, if he exercised reasonable care, he would have known
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of the hazard. Khorran v. Harbor Freight Tools USA, Inc., 251 So. 3d 962,
965 (Fla. 3d DCA 2018).
We acknowledge our holding that “Florida law recognizes no defense of
lack of knowledge of a building code violation creating a dangerous
condition by an owner as to his own maintenance of his own property.” Di
Mare & Drews, Inc. v. Kerrigan, 810 So. 2d 1066, 1069 (Fla. 4th DCA 2002)
(citing Owens v. Publix Supermkts., Inc., 802 So. 2d 315, 320 (Fla. 2001)).
But as Judge Warner clarified in Kerrigan, “[t]o be liable, a property owner
must still have superior knowledge, either actual or constructive, to the
plaintiff concerning any dangerous conditions on the property.” Kerrigan,
810 So. 2d at 1070 (Warner, J., dissenting) (citing Lynch v. Brown, 489 So.
2d 65, 66-67 (Fla. 1st DCA 1986)).
Here, the trial judge stated Strazzeri had not presented any evidence
about the specifics of her fall other than “she’s walking and she falls.” The
evidence showed that the shoes which Strazzeri had worn on the day when
she fell were the same shoes which she had worn to work in the past.
Strazzeri also testified that she had walked up and down the ramp
hundreds of times. Eckert paid a board-certified contractor to install the
ramp, and it had passed multiple inspections since its installation. No one
had fallen on the ramp in the past.
In short, Strazzeri did not present any evidence that Eckert had actual
or constructive knowledge of a dangerous condition. Nor did Strazzeri
present evidence of negligent maintenance. See Owens, 802 So. 2d at 320
n.4 (“[A]ctual or constructive knowledge is irrelevant . . . if ample evidence
of negligent maintenance can be shown.” (quoting Mabrey v. Carnival
Cruise Lines, Inc., 438 So. 2d 937, 938 (Fla. 3d DCA 1983))).
Absent evidence of Eckert’s actual or constructive knowledge of a
dangerous condition, or negligent maintenance, Eckert’s motion for
directed verdict should have been granted.
Conclusion
The circuit court’s order denying Eckert’s motion for directed verdict is
reversed.
Reversed and remanded.
WARNER and GERBER, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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