Traversing Landscaped Areas

Defendants are often faced with claims by pedestrians that chose to walk through grass or landscaping beds. In the recent matter of Pio v. Simon Capital GP, 366 So.3d 1200 (Fla.2d DCA, 2023) the Second District affirmed summary judgment against a mall’s owner, operator and its landscaper. “Pio alleged that she injured herself when she stepped in a concealed hole or depression in a grass bed in a raised landscaped area of the parking lot of Macy’s at Tyrone Square Mall in St. Petersburg. The landscaped area runs along a sidewalk that leads from the mall’s grand entrance down to the public sidewalk on the main boulevard surrounding the mall. The landscaped area separates the parking spaces from the sidewalk…Pio alleged that a palm tree had been removed from the area and that the hole created by the removal had not been properly filled.” Id. At 1202 (emphasis added). The Court held “landscaping features are generally found not to constitute dangerous conditions as a matter of law.” Id. at 1203. The Court held, “As in Wolf, the trial court properly entered summary judgment in favor of Simon because as a matter of law, the landscaped area was not a dangerous condition.” Id. at 1205.

In Wolf v. Sam’s East, Inc., 132 So.3d 305 (Fla. 4th DCA 2014), the plaintiff sued the defendant alleging it was liable for allowing above-ground tree roots to grow in its landscaping areas and for failing to warn the plaintiff of the latent danger created by tree roots that caused the plaintiff’s fall, which were allegedly obscured by grass and leaves when there was a concrete walkway available for pedestrian use. The defendant moved for summary judgment “arguing that even taking the evidence in the light most favorable to Wolf, he was solely liable for the accident because he chose to walk across the landscaping area even though he knew there were concrete walkways for that purpose.” Id., at 307. The trial court eventually entered final summary judgment in favor of the defendant and the plaintiff appealed. On appeal, the Fourth District Court of Appeal affirmed a summary judgment for the defendant holding “that anyone who walks into a landscaping area containing trees, grass, and mulch is held to know that the landscaping area presents ‘a hazard to walking,’ particularly when concrete traverses have been specifically constructed to prevent this type of accident.” Id., at 308 (emphasis added). The court found that “the tree roots in the landscaping areas were ‘so obvious and not inherently dangerous’ as to constitute a non-dangerous condition as a matter of law.” Id., at 308 (citing Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204 (Fla 5th DCA 2012)). The court’s conclusion was reinforced by the fact that Wolf could have easily and safely crossed the landscaping area using a concrete walkway located only a few feet away from where he fell. Wolf testified in his deposition that he knew the walkway existed but chose not to use it and found that Wolf fell because he was knowingly cutting through a landscaping area rather than using the concrete walkways designed for that purpose. In doing so, the Court found that “[the defendant] had no duty to make the landscaping areas safe for a pedestrian’s encroachment.” Id. (emphasis added).