Background
Lori Ginsburg fractured her wrist after tripping in PGA National Resort and Spa’s guest parking lot on a missing section of asphalt. The defect was approximately six to eight inches long, four to six inches wide, and up to one inch deep. Ginsburg and her husband testified that lighting and palm-tree shadows obscured it. She sued PGA for failing to maintain safe premises and warn of the condition.
On the first morning of trial, Ginsburg asked the court to judicially notice Florida Building Code section 1003.2.7.1, which addressed changes in elevation on walking surfaces. PGA objected that it had received no written notice and that the provision did not apply to an exterior parking lot. The jury found PGA negligent, found Ginsburg not comparatively negligent, and awarded $603,578.70.
The Court’s Holding
The Fourth District affirmed the denial of PGA’s directed-verdict motion but reversed the final judgment and remanded for a new trial. The trial court wrongly treated the Florida Building Code as public statutory law subject to mandatory judicial notice. The Code is an administrative rule, for which judicial notice is discretionary and subject to the procedures in sections 90.203 and 90.204, Florida Statutes.
Ginsburg gave no timely written notice of her request and raised it immediately before jury selection, depriving PGA of a meaningful opportunity to investigate the provision, challenge its applicability, or retain an expert. The court also admitted and instructed the jury on a provision from the 2001 Code that expired in 2005, without determining whether it applied to the accident or the parking lot. The error was not harmless because the Code provision became a central feature of Ginsburg’s proof and closing argument.
Key Takeaways
- The Florida Building Code is an administrative rule, not a statute subject to mandatory judicial notice.
- A party seeking judicial notice of an administrative rule must provide timely written notice and a meaningful opportunity to be heard.
- A court must determine that a proposed code provision is applicable and relevant before allowing it into evidence or jury instructions.
Why It Matters
The decision underscores that judicial notice cannot be used to introduce an undisclosed safety standard on the eve of trial. In premises cases, litigants seeking to rely on building-code provisions must identify the correct edition, establish its applicability, and comply with the procedural safeguards governing permissive judicial notice.