Associate Attorney
In BSREP III PBG Resort, LLC d/b/a PGA National Resort and Spa v. Ginsburg, No. 4D2025-0428, the Fourth District reversed a $603,578.70 premises liability judgment and ordered a new trial after the trial court improperly took judicial notice of a Florida Building Code provision that had not been disclosed before trial and had expired years earlier.
What happened:
The plaintiff requested judicial notice of a Florida Building Code provision for the first time on the morning of trial, immediately before jury selection. The defense objected because it had received no prior notice and had never been given an opportunity to investigate the provision or its applicability.
The trial court nevertheless took judicial notice, treating the Building Code as mandatory public statutory law. The provision then became a central theme of the trial, including during witness examinations, closing argument, and the jury instructions.
The Fourth District reversed.
The court held that the plaintiff failed to comply with sections 90.203 and 90.204 because the request was not timely and the defense was not given a reasonable opportunity to respond. The court also clarified that the Florida Building Code is an administrative rule, not a statute, meaning judicial notice under section 90.202(9) is discretionary rather than mandatory.
The problem went further. The provision came from the 2001 Florida Building Code and expired in 2005, and the trial court never determined whether it applied to the parking lot at issue.
Why it matters (for trial lawyers):
• A request for judicial notice must provide the opposing party timely written notice and a reasonable opportunity to respond.
• The Florida Building Code is an administrative rule, so judicial notice is discretionary under section 90.202(9).
• Before relying on a code provision, establish that the correct provision and edition actually apply to the case.
• An improperly noticed code provision can become especially prejudicial when it is presented to the jury as an established fact. Here, the error was not harmless because the Building Code became a centerpiece of the trial.
Takeaway:
Judicial notice does not eliminate the need to establish relevance, applicability, and procedural compliance. If a code provision matters to your case, identify it before trial, provide proper notice, and establish why that specific provision applies.
Don’t wait until the jury is walking into the courtroom to introduce the code that your case depends on.
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