Theoharis Lekas v. Dezer Properties, LLC

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 2, 2026.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D25-1446

Lower Tribunal No. 24-14477-CA-01

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Theoharis Lekas,

Appellant,

vs.

Dezer Properties, LLC, Dezer Development, LLC, Dezer Hotel Corporation of America, and 18001 Holdings, LLC, Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Javier Enriquez, Judge.

William C. Matsikoudis (Jersey City, NJ); The Law Office of Marcelo Montesinos, and Marcelo Uriel Montesinos (Lake Worth), for appellant.

Boyd Richards Parker Colonnelli, P.A., and Yvette Rose Lavelle, for appellees Dezer Development, LLC, Dezer Hotel Corporation of America and Dezer Properties, LLC.

Kahana Feld, LLP, and Sean Edward Harriton (New York, NY), for appellee 18001 Holdings, LLC.

Before SCALES, C.J., and LINDSEY and GOODEN, JJ.

GOODEN, J.

This appeal presents a straightforward question: whether a premises owner has a duty to warn or protect a barefoot guest from a hot cement pool deck and beach sand under the Florida summer sun. We conclude that it does not.

In August 2022, Appellant Theoharis Lekas vacationed at the Trump International Beach Resort in Sunny Isles, Florida. The resort has a pool and a private beach, and Lekas frequented both during his stay. Lekas routinely stood on and walked barefoot across the cement pool deck and beach sand. The daily temperature was approximately 95 degrees. Not surprisingly, both surfaces were very hot.

Lekas suffers from diabetic neuropathy. As a result, he did not feel the heat beneath his feet. On the third day of his vacation, Lekas noticed that the skin on his feet had begun to peel. After returning home to New Jersey, his condition worsened, ultimately requiring two hospitalizations and the partial amputation of his right foot.

Lekas sued Appellees Dezer Properties, LLC, Dezer Hotel Corporation of America, Dezer Development, LLC, and 18001 Holdings, LLC for

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negligence. The Appellees either own, operate, or were involved in the development or operation of the resort.

Appellees moved to dismiss, arguing that they owed Lekas no legal duty because any danger posed by a hot pool deck and beach sand in Florida during August was open and obvious. Lekas countered that the danger was not open and obvious to him because he is diabetic, suggesting that his condition gave rise to a special duty. The trial court granted the motion and dismissed the action. This appeal followed. 1 “To maintain an action for negligence, a plaintiff must establish that the defendant owed a duty, that the defendant breached that duty, and that this breach caused the plaintiff damages.” Fla. Dep’t of Corr. v. Abril, 969 So. 2d 201, 204 (Fla. 2007). “As to duty, the proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” McCain v. Fla. Power Corp., 593 So. 2d 500, 504 (Fla. 1992) (emphasis omitted). Whether a duty exists is a threshold legal question for the court. Limones v. Sch. Dist. of Lee Cnty., 161 So. 3d 384, 389 (Fla. 2015). See also Jenkins v. W.L. Roberts, Inc., 851 So. 2d 781, 783

1 We review an order dismissing a complaint for failure to state a cause of action de novo. Morin v. Fla. Power & Light Co., 963 So. 2d 258, 260 (Fla. 3d DCA 2007).

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(Fla. 1st DCA 2003) (“The duty element of negligence is a threshold legal question; if no legal duty exists, then no action for negligence may lie.”).

A landowner generally owes an invitee two duties: (1) to exercise ordinary care to maintain the premises in a reasonably safe condition; and (2) to warn the invitee of concealed dangers that the owner knows or should know about, but that the invitee does not know about and could not discover through the exercise of reasonable care. Grimes v. Fam. Dollar Stores of Fla., 194 So. 3d 424, 427 (Fla. 3d DCA 2016). But these duties are not boundless. “Not every injury from an accident gives to the injured party a cause of action for the negligence of someone else. The owner of property is not an insurer of the safety of everyone who comes upon the property under all circumstances.” Night Racing Ass’n v. Green, 71 So. 2d 500, 503 (Fla. 1954).

Some conditions are so open and obvious—and so common and innocuous—that, as a matter of law, they cannot constitute dangerous conditions. See Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129, 1133 (Fla. 1st DCA 2017) (“There are times when conditions are so common, or so innocuous in our everyday life, that they do not impose liability on the landowner.”); Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012) (“Nonetheless, some conditions are so obvious and not

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inherently dangerous that they can be said, as a matter of law, not to constitute a dangerous condition, and will not give rise to liability due to the failure to maintain the premises in a reasonably safe condition.”); City of Melbourne v. Dunn, 841 So. 2d 504, 505 (Fla. 5th DCA 2003) (“Some conditions are so open and obvious, so common and innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition.”); Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990) (“Some conditions are simply so open and obvious, so common and so ordinarily innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition.”).

This is such a case. Cement pool decks and sandy beaches are common features of Florida life, and neither is inherently dangerous. Brookie, 213 So. 3d at 1133. And even assuming the heat presented a danger, it was “so open and obvious that an invitee may be reasonably expected to discover [it] to protect himself.” Id. See also Earley v. Morrison Cafeteria Co. of Orlando, 61 So. 2d 477, 478 (Fla. 1952); Hall v. Holland, 47 So. 2d 889, 891–92 (Fla. 1950).

Lekas’ medical condition does not alter that conclusion. His diabetic neuropathy may have prevented him from perceiving the heat, but it did not transform an otherwise ordinary and obvious condition into a dangerous one

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or create a special duty on the part of the landowner. See McCain, 593 So. 2d at 503 (“Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. . . . The law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience.”).

Accordingly, we affirm the trial court’s dismissal with prejudice. The Appellees owed Lekas no legal duty under these circumstances.

Affirmed.