The Duty of Care Extended to Invitees is Not Boundless
In the previous posting, I write about how the element of duty in a negligence claim is a question of law. It is up for the court to decide and not the jury. However, I did not delve into the facts of the case.
The underlying case was a personal injury case. A plaintiff was injured when she parked her car and, instead of using the paved sidewalk, decided to cross a grassy median and stepped on an irrigation box. She sued the defendant in a premise liability negligence action claiming the defendant failed to maintain the grassy median, or adequately inspect the grassy median, or warn her of the danger in the grassy median. During trial, which was renewed post-trial, the defendant moved for a directed verdict arguing that the defendant did not owe a duty of care to the plaintiff. The trial court denied defendant’s motions. The jury found in favor of the plaintiff, but this was reversed and remanded for the trial court to enter judgment in favor of the defendant. Why? Because the defendant did not owe a duty of are to the plaintiff.
Property owners, like [defendant], generally owe two duties of care to an invitee, like [plaintiff]: “(1) the duty to use reasonable care in maintaining the property in a reasonably safe condition, and; (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care.”
But, as explained above, the scope of a landowner’s duty is not boundless. It is circumscribed:
This duty owed to business invitees “extends to all portions of the premises which are included within the invitation and which it is necessary or convenient for the invitee to visit or use in the course of the business for which the invitation was extended, and at which his presence should therefore reasonably be anticipated, or to which he is allowed to go.”
In accordance with that principle, Florida law has long held there is simply no duty of care owed to pedestrians walking in an area not intended “to be used as a walkway,” and pedestrians “use such areas . . . at their own risk.”
Sierra Orlando Properties, Ltd. v. Allen, 50 Fla.L.Weekly D1903a (Fla. 6th DCA 2025) (citations omitted).
Here, the plaintiff got injured crossing a grassy median. But the median was not intended for pedestrians. Thus, the defendant did not owe a duty of care to the plaintiff meaning the trial court should have granted a directed verdict for the defendant because the duty element, a question of law, could not be satisfied:
[Plaintiff] simply walked through an area where she was not supposed to go and fell into an irrigation box that was precisely where it should have been. [Plaintiff’s] decision to negotiate the grassy median, rather than use the paved, pedestrian walkway, without [defendant’s] knowledge, “could not operate to expand the scope of [defendant’s] duty.” We therefore conclude, as a matter of law, that [defendant] had no duty to provide [plaintiff] notice or any warning of the obvious danger of walking through the unpaved, grassy median, nor did it have a duty to make the median safe for walking, “a function for which it was not designed.”
Allen, supra (citations omitted).
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
