No Sidewalk Duty of Care

2 minute read

A recent decision by the Florida District Court of Appeal addressed the legal duty of a business owner to maintain the City’s sidewalk outside the business’s entrance. The Court affirmed summary judgment where the plaintiff had not adequately shown the business owner’s “actual possession or control” over the sidewalk that “foreseeably created a broader’ zone of risk’ that pose[d] a general threat of harm to others.” See Martin v. City of Tampa, et al., No. 2D21-372 (Dist. Ct App., 2d Dist, October 19, 2022)

The case arose when plaintiff Martin tripped and injured herself on an uneven paver in the sidewalk outside the Columbia Restaurant. The sidewalk was owned by the City of Tampa but was under an awning owned and maintained by Columbia. Plaintiff claimed that the City and Columbia had joint and shared responsibility to maintain the sidewalk free from hazards.

The Court of Appeals addressed whether Columbia had a legal duty of care because its conduct created a foreseeable, general zone of risk that posed a public threat of harm to others. The Court determined that no such duty arose in this case from any applicable statutes or administrative rules. However, it could arise if Columbia was in “actual possession or control” over the uneven sidewalk outside its front door.

Plaintiff argued that such possession and control existed because (1) the sidewalk was underneath Columbia’s entrance awning, (2) patrons had to cross that sidewalk to enter Columbia’s place of business, and (3) Columbia tidied up the sidewalk and checked it for hazards, every day. The Court disagreed, holding that a business owner’s actual possession or control “must rise to the level of holding out or using the adjacent property as part of the business’s premises.”

This case is a reminder that in a premises liability case involving joint use, it is essential to gather and present evidence that a business owner was holding out or using the adjacent property as part of the business’s premises.”

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