Opinion

Eckert Realty Corporation v. Ellen Strazzeri

Court
District Court of Appeal of Florida
Filed
Oct 2, 2024
Status
Published
Cited by
0 cases
Authority
More cited than 30.7%

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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