Many construction defects cases involve Florida’s Building Code. A recent non-construction case, BSREP II PBG Resort, LLC v Ginsburg, 2026 WL 265226 (Fla. 4th DCA 2026), discussed a court taking judicial notice of a provision in the Florida Building Code. This case was a premise liability case where the plaintiff tripped in an asphalt parking lot. The plaintiff, without complying with proper procedural notice protocol, asked the court to take judicial notice of a section of Florida’s Building Code, i.e., admitting this section as relevant evidence in the case. The trial court granted the request for judicial notice and the plaintiff used this as the basis of her cross-examination, the jury instructions, and closing argument that the violation of this section of Florida’s Building Code was evidence of negligence. This was in error.
First, Florida’s Building Code is NOT a statute but an administrative rule. Ginsburg, supra. As an administrative rule, a court “may” but is not obligated to take judicial notice of the rule – it is a permissive judicial notice request per Florida Statute s. 90.203 and 90.202(9). This is important because the trial court viewed Florida’s Building Code as a statute it mandatorily had to take judicial notice of per Florida Statute s. 90.201, which was in error. Because it was permissive, the plaintiff needed to comply with statutory procedural notice protocols, which the plaintiff failed to do.
Second, the trial court made no determination that the section of Florida’s Building Code at-issue even applied to the case. Had the proper notice been given by the plaintiff to the defendant, the issue could have been briefed and the trial court could have made the determination whether the rule applied to the case. Had the briefing been done, the trial court would have learned the rule at-issue was long removed from the Florida Building Code’s later versions; in other words, the rule long expired. And even if the section was still applicable, the section dealt with means of egress and the injury occurred in a parking lot; hence, it was questionable whether it was even relevant to the case. “[T]he trial court was required to determine whether the requested provision applied to the case; otherwise, no justification existed for taking judicial notice of this provision and inserting it in the jury instructions.” Ginsburg, supra.
The bottom line is the trial court put the cart before the horse and took judicial notice of a section of Florida’s Building Code in seemingly a sandbagging fashion by the plaintiff. Once the trial court took judicial notice of this evidence, it became hard for the defendant to overcome the presumption that the violation of the section of Florida’s Building Code constituted negligence.
If you are relying on Florida’s Building Code, you should want this introduced and rebutted through appropriate expert testimony. While the applicability of Florida’s Building Code to the case is a question of law for the court, you still want the expert testimony to demonstrate the applicability or rebut any presumptions that may come with its applicability as evidence.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
