Sarah Walker v. M633, LLC d/b/a Chick-Fil-A of Deerwood Park

FIFTH D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
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Case No. 5D2023-3429
L.T. Case No. 2019-CA-002884
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S ARAH W ALKER ,
Appellant,
v.
M633, LLC d/b/a CHICK-FIL -A OF
DEERWOOD PARK,
Appellee.
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On appeal from the Circuit Court for Duval County.
Katie L. Dearing, Judge.
Christopher W. Hewett, of the Law Office of Nooney, Roberts,
Hewett, and Nowicki, Jacksonville, for Appellant.
Brian W. Leeds and Michael A. Price, of Vernis & Bowling of North
Florida, PA., Jacksonville, for Appellee.
February 27, 2026
M AC IVER , J.
Appellant, 	Sarah 	Walker, 	appeals 	a 	final 	order 	granting
summary judgment in favor of Appellee, M633 LLC d/b/a Chick-
fil-A of Deerwood Park (“Chick-fil-A”). We affirm for the reasons
explained below.

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I.
During a visit to Chick-fil-A, Walker’s three-year-old son was
playing on the restaurant’s playground. Walker heard her son call
out for help but could not see him, so she stood up on a freestanding
wooden bench with a vinyl cushion top in the playground area. The
bench was designed for sitting; it had no handrails or mechanisms
intended to assist someone standing on it. Walker knew the bench
was designed for sitting. Walker, with a handbag around her neck,
a telephone in her hand, and wearing shoes, stepped up onto the
bench for about eight seconds. After about five seconds, Walker
sidestepped to her left, moving to the far-right side of the bench
with her toes at the forward leading edge of the bench seat, the
point furthest from the center of the bench. The bench tipped
forward 	and 	Walker 	fell 	to 	the 	ground, 	allegedly 	sustaining
injuries. 	After 	she 	fell, 	she 	got 	up 	and 	“put 	the 	bench 	back
together.”
Walker filed a complaint for negligence against Chick-fil-A,
claiming that by not securing the bench in the children’s play area,
Chick-fil-A breached its duty to her as a business invitee by failing
to maintain the premises in a reasonably safe condition, to provide
adequate lighting, and to warn her of a foreseeable, unreasonably
dangerous condition.
The trial court granted Chick-fil-A’s motion for summary
judgment and denied Walker’s motion for reconsideration. The
trial court found that the existence of a bench which is not affixed
to the building’s foundation did not render the premises unsafe.
Chick-fil-A had no duty to warn Walker of any peril because no
peril was known to it which Walker could not discover with the use
of ordinary care. Further, Walker’s argument that had the lighting
been brighter in the playground area, she would have been able to
see her child without climbing on the bench failed. Why Walker
climbed on the bench was irrelevant; the choice to stand on the
bench was made entirely by Walker and her fall was the result of
that choice, not any condition created by Chick-fil-A.
II.

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We review the granting of summary judgment in favor of
Chick-fil-A de novo. Volusia County v. Aberdeen at Ormond Beach,
L.P., 760 So. 2d 126, 130 (Fla. 2000); Johnson v. Wal-Mart Stores
E., LP, 389 So. 3d 705, 709 (Fla. 5th DCA 2024). Summary
judgment is warranted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a).
“Generally, a property owner owes two duties to an invitee: (1)
the duty to use reasonable care in maintaining the property in a
reasonably safe condition; and (2) the duty to warn of latent or
concealed dangers which are or should be known to the owner and
which 	are 	unknown 	to 	the 	invitee 	and 	cannot 	be 	discovered
through the exercise of due care.” Dampier v. Morgan Tire & Auto,
LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012) (emphasis added)
(citing Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 577 (Fla. 5th
DCA 2005)). If the nature of a hazard is open and obvious, a
property owner does not have a duty to warn, but it still has a duty
to maintain the property in a reasonably safe condition. Id. “When
considering whether the general facts of a case establish a duty,
our 	focus 	is 	on 	whether 	the 	defendant’s 	conduct 	foreseeably
created a broader ‘zone of risk’ that poses a general threat of harm
to others.” Johnson, 389 So. 3d at 709 (citation modified).
Walker argues that it was foreseeable that some injury would
occur, and that question should be determined by a jury. However,
when analyzing foreseeability, duty and proximate causation are
distinguishable.
When foreseeability pertains to duty, it is typically a question
of law for the judge. Hanrahan v. Hometown Am., LLC, 90 So. 3d
915 (Fla. 4th DCA 2012). Courts should resolve the issue as a
matter of law when the facts are clear, and the evidence supports
no more than a single reasonable inference.
When foreseeability relates to causation and the evidence is
conflicting, raises material factual issues, or permits differing
reasonable inferences, the issue must be left to the factfinder.
Springtree Props., Inc. v. Hammond, 692 So. 2d 164, 167 (Fla.
1997); Serrano v. Dickinson, 363 So. 3d 162, 165 (Fla. 4th DCA
2023).

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Here, the facts were clear and undisputed, and no differing
reasonable inferences could be made as to causation. So, the
question lay in whether Chick-fil-A had a duty to warn Walker of
a 	dangerous 	condition—a 	question 	of 	law 	for 	the 	judge. 	See
Johnson, 389 So. 3d at 709.
There was no evidence that the bench created a dangerous
condition, nor was there evidence that the bench had been in
continuous and obvious use as something on which an adult could
stand. It was not foreseeable that Walker would step up onto a
bench designed for sitting. At a minimum, if someone were to use
the bench outside its normal purpose (e.g., by standing on it), one
would 	assume 	they 	would 	exercise 	due 	care 	by 	checking 	its
suitability for that use.
In fact, Walker testified in her deposition that she had sat
down on the bench many times before and it appeared to be sturdy
and stable. She testified that she had seen children stand and play
on the bench and other parents sit on the bench. The Chick-fil-A
employees had regularly cleaned and wiped down the bench, found
no defects, and the bench had been in use for seven years without
issue. Both parties believed that prior to the incident, the bench
was safe and sturdy and presented no dangerous condition. Chick-
fil-A had no actual or constructive knowledge of a dangerous
condition with the bench. See e.g., Pio v. Simon Cap. GP, 366 So.
3d 1200, 1205 (Fla. 2d DCA 2023) (finding it was not foreseeable
that people would step into a landscaped area of a mall parking
lot, where there was no evidence that the grass bed had become a
well-trampled footpath or been used as a pedestrian shortcut to
put the mall operator on constructive notice of the condition, and
thus 	there 	was 	no 	duty 	to 	anticipate 	harm). 	In 	short, 	using
something as a stepstool that is not designed for that purpose
comes with an open and obvious level of risk. That the bench was
not bolted to the floor did not create a separate risk, because it was
a fact that would have been easily discovered if she had exercised
due care when she decided to use the bench improperly.
Further, even if the bench were potentially hazardous, the
judge could decide it was open and obvious as a matter of law, and
that Chick-fil-A was not liable. See, e.g., Brookie v. Winn-Dixie

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Stores, Inc., 213 So. 3d 1129 (Fla. 1st DCA 2017) (noting certain
conditions are so common or innocuous that they do not constitute
a dangerous condition as a matter of law); Pio, 366 So. 3d at 1204–
05 	(finding 	some 	conditions 	are 	so 	obvious 	that 	invitees 	can
reasonably be expected to protect themselves, and liability may not
arise unless the landowner should anticipate harm despite the
condition’s obviousness).
Finally, as the trial court correctly found, Walker’s argument
that Chick-fil-A failed to maintain adequate lighting in the play
area 	lacks 	merit. 	Walker 	stated 	that 	the 	upper 	area 	of 	the
playground is always darker near the ceiling where there are
shadows. Her son was in the corner of the play area near the top
in an opaque, plastic-like bubble that she could not look through.
There was no reasonable causal link between the darker, upper
area of the play area—whether it was adequately lighted or not—
and any injuries Walker may have sustained from falling from a
bench on which she should not have been standing. The question
of 	causation 	can 	be 	decided 	by 	the 	judge 	where 	there 	is 	an
intervening cause, such as Walker’s negligent actions. See Kohler
v. Medline Indus., Inc., 453 So. 2d 908, 909 (Fla. 4th DCA 1984)
(finding carelessness was the only legal cause of the accident
where nurse’s aide neglected to close a urine bag, its contents
spilled onto the floor, another nurse slipped in the resulting puddle
and fell).
III.
The record evidence—which flowed from over four years of
discovery 	and 	included 	video 	surveillance 	that 	captured 	the
incident—and the case law simply do not support a jury finding
that 	Chick-fil-A 	breached 	its 	duty 	to 	Walker 	by 	placing 	a
freestanding bench for sitting in the play area or by not securing
the bench to the floor. There is no evidence that a jury would find
the bench was not maintained in a reasonably safe condition or
that Chick-fil-A had a duty to warn Walker that she may fall off
the bench if she stood on it.
A FFIRMED.

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WALLIS, J., concurs.
MAKAR, J., concurs with opinion.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Case No. 5D2023-3429
Lt. Case No. 2019-CA-002884
MAKAR, J., concurring with opinion.
Affirmance is warranted with two caveats. The first is that
this case would be different if a child had fallen from the
playground bench, an obvious and foreseeable risk due to kids
acting impulsively. That’s because Florida law recognizes that
“[t]hose who invite children, who have not arrived at the age of
discretion,* to go upon their premises are required to exercise a
relatively higher degree of care for their safety than to adults. That
degree of care is commensurate with the attending facts and
circumstances of each case.” Burdine’s, Inc. v. McConnell, 1 So. 2d
462, 463 (1941) (footnote added); see also Collias ex rel. Collias v.
Gateway Acad. of Walton Cnty., Inc., 313 So. 3d 163, 166 (Fla. 1st
DCA 2021) (citing Burdine’s); Alegre v. Shurkey, 396 So. 2d 247,
249 (Fla. 1st DCA 1981) (Ervin, J., concurring in part, dissenting
in part) (“It has long been acknowledged that a child of tender
years may be incapable of comprehending a patent risk and that a
greater degree of care may be owed to the invitee-child by the
business owner than to an adult of normal intelligence.”), approved
by City of Miami v. Ameller, 472 So. 2d 728, 729 (Fla. 1985). The
second is that the specific facts of this case show that the mom
knew that the playground bench was designed just for sitting,
yet—with a handbag slung on her neck and cellphone in hand—
she stepped onto and precariously pranced about to its edge,
causing it (predictably) to tip over. This situation is akin to those
where courts find no liability due to actions by adults who knew of
the risks involved yet acted irresponsibly under the circumstances.
See Collias, 313 So. 3d at 167−68.
* See Age of Discretion, Black’s Law Dictionary (8th ed. 2004)
(defining “age of discretion” as the “age at which a person is
considered responsible for certain acts and competent to exercise
certain powers”).