In Ortega v. JW Marriott Investment, LLC, — So.3d —-, 2025 WL 610824 (Fla. 3d DCA, Feb. 26, 2025), the Florida Third District Court of Appeals reversed a summary judgment ruling in a case with direct implications for architects and engineers working on integrated pedestrian and vehicle infrastructure. The Court held that disputed issues of fact existed regarding the design of a concrete gate-arm slab in a parking garage, emphasizing that its visibility and conformance with industry standards presented jury questions.
Plaintiff Gwen Ortega tripped and fell over an unpainted, elevated concrete slab while walking through a resort garage. Though she had previously traversed the same area without incident, Ortega testified on this occasion she did not perceive the change in elevation and fell while taking a direct path to her car. The trial court found the slab to be open and obvious and granted summary judgment. The Third District Court of Appeals reversed, crediting expert testimony from Plaintiff’s expert, Dr. Ronald Zollo, P.E., who opined the condition was not readily apparent and failed to meet accepted standards for walkable surfaces.
Dr. Zollo testified the condition violated recognized engineering safety standards for pedestrian surfaces. He opined the unpainted concrete slab (identical in color to the surrounding pavement) created a form of visual camouflage, rendering it indistinguishable to the average pedestrian. Citing human factors and pedestrian behavior literature, Dr. Zollo stated that a lack of edge treatment (such as paint or striping) failed to alert pedestrians to the change in elevation, creating what he described as a “trap” or “optical illusion.”
The Third District Court of Appeals acknowledged that while certain conditions may be “open and obvious” as a matter of law, liability may still attach where an “uncommon design” creates a hidden danger not reasonably discoverable by prudent invitees. The Court gave weight to expert testimony that framed the issue as one of human perception, rather than structural failure, signaling that visual accessibility is now an essential design consideration. This ruling reinforces that architects and engineers must heavily scrutinize design decisions affecting pedestrian safety. Even functionally necessary features such as bollards, curbs, or gate-arm slabs can become liabilities if they are not designed with clear visual cues, alternative pedestrian routes, or warnings that satisfy code requirements.