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Florida Second DCA rules that alleged violation of Florida Accessibility Code was evidence of common law negligence by strip mall operator

On September 13, 2019, in Krueger v. Quest Diagnostics, Inc., et al., No. 2D18-3823, the Florida Second DCA reversed a trial court’s directed verdict in favor of the defendant in a premises liability case. The plaintiff, who is elderly and disabled, was injured when he fell returning to his car’s handicapped parking space in the parking lot of a strip mall in which the defendant was a commercial tenant. He claimed that the owner and manager of the strip mall negligently maintained the parking lot by not providing a suitable curb "cut" that would have allowed handicapped patrons a sufficiently direct access to and from the handicapped spaces that were in the vicinity of Quest. The plaintiff alleged that this violated the Florida Accessibility Code for Building Construction, which requires a minimal distance between a handicapped parking space and an accessible entrance via the shortest accessible route. He intended to present testimony from an architect expert whose opinions were premised in large part on the Accessibility Code. However, the trial court concluded that the Accessibility Code was not a safety code and therefore was not a proper basis of authority for expert testimony. The trial consequently excluded the expert from testifying and directed a verdict in favor of the defendants. On appeal, the Second DCA noted that numerous courts have recognized that a jury in a premises liability case may consider building code provisions in determining whether a defendant complied with a common law duty of care. The Second DCA additionally concluded that “even insofar as certain parts of the Florida Building Code appear to primarily address access requirements for the disabled, it does not follow that those same provisions do not also promote safety for the disabled.”

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