Key Points

  • The Third District reversed a summary judgment that had granted The Berry Farm, LLC immunity under section 570.88(1), Florida Statutes, in a suit over a visitor's broken ankle on a playground slide.
  • Agritourism immunity under section 570.88 applies only if the operator posted the warning signs required by section 570.89, at the entrance and at the site of the activity.
  • Because the farm raised immunity as an affirmative defense, it bore the burden of proof and had to support its summary judgment motion with evidence that would entitle it to a directed verdict.
  • The plaintiff's deposition testimony that no warning signs were present on the day of her injury created a genuine factual dispute, and photos date-stamped eight months later did not contradict it.
  • The court did not reach the plaintiff's alternative argument that her injury did not result from an inherent risk of agritourism activities.

A Florida appeals court on Wednesday revived a negligence suit by a woman who broke her ankle on a children's slide at a Miami farm's harvest festival. The court held that a jury must decide whether the farm had posted the warning signs that Florida requires before an agritourism business can claim immunity from such suits.

A three-judge panel of Florida's Third District Court of Appeal reversed a summary judgment that a Miami-Dade County circuit judge had entered for The Berry Farm, LLC. Judge Lobree wrote the opinion for the panel, which also included Judges Miller and Gooden. No judge wrote separately.

The decision sends the case of the visitor, Amanda Miguel Collado Laguna, back to the trial court. Because the farm raised the immunity as an affirmative defense, the panel said, the farm bears the burden of proving it. The panel also held that her sworn testimony that no signs were present was enough to put the question before a jury.

Florida's agritourism statute provides that an operator "is not liable for injury or death of, or damage or loss to, a participant resulting from the inherent risks of agritourism activities if the notice of risk required under s. 570.89 is posted as required." Section 570.89 requires each operator to post and maintain signs carrying a prescribed warning "in a clearly visible location at the entrance to the agritourism location and at the site of the agritourism activity," in black letters at least 1 inch tall.

According to the opinion, Collado visited the farm with her 3-year-old son on Oct. 10, 2021, for its annual Harvest Festival. She fractured her right ankle when her feet hit the ground at the bottom of a slide in the children's playground area. Her negligence suit alleged that the farm failed to keep its premises reasonably safe, to warn her of a dangerous condition and to put proper safety protocols in place for the slide.

The farm moved for summary judgment. It argued that it qualified as an agritourism operator, that Collado's injury came from an inherent risk of an agritourism activity, and that it had posted the required signs "at its entrance and next to the playground area." It relied on an affidavit from its owner and managing member, Karl Wiegandt, who attested that the farm had "several signs posted on the property containing the notice of inherent risk specified in Section 570.89, Florida Statutes, including at its entrance and next to the playground area where Plaintiff was allegedly injured." The affidavit included three photos that it described as "examples" of the signs.

Collado countered that the farm's photos bore a date stamp of June 15, 2022, and that Wiegandt, who testified that the signs went up before the farm first opened, could not say in his deposition when they were put up. A screenshot from the farm's Instagram account six days before her injury showed only one playground sign, which, a 2025 inspection showed, said parental supervision was required. At her deposition, asked whether she had noticed any warning signs before going down the slide, Collado answered that "[t]here was nothing there." Shown images of two warning signs, she testified that they were "not present on the day" and that "[t]hey were nowhere inside."

Circuit Judge Javier A. Enriquez granted the motion. The trial court found that the owner's "unrebutted" affidavit showed "that signs compliant with Section 570.89, Florida Statutes, were posted at the entrance and by the playground as early as 2020." It ruled that Collado's "inability to recall seeing a sign, or pointing to photos that simply do not capture signage" did not create a genuine factual dispute.

The appeals court disagreed. Judge Lobree wrote that the trial court "failed to consider the entirety of Collado's deposition testimony." Collado had said that she did not remember signs outside the entrance, but she also testified that there were no warning signs at the farm that day. "Credibility determinations are for the jury," the opinion said, and a reasonable jury could find Collado's account more believable than the owner's.

The panel also addressed Florida's summary judgment rule, Rule 1.510. Quoting its own precedent, the court acknowledged that the new rule "indubitably endows the trial court with considerably broader authority to resolve a case on summary judgment." But it added that "the general rule remains intact: credibility determinations and weighing the evidence are jury functions, not those of a judge."

Because the farm would carry the burden at trial, the panel wrote, quoting a 2026 Fourth District decision, it "must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial." Two of the images were dated June 2022, "eight months after the incident," and it was unclear where the third, undated sign had been posted. The images, Judge Lobree wrote, "do not contradict Collado's testimony that there were no signs the day of the incident."

Collado had also argued that her injury did not result from the "inherent risks of agritourism activities" at all. The panel did not decide that question. In a footnote, it said it was reversing on the signage issue alone.

Lawyers for Collado included Daniel R. Schwartz of Eaton & Wolk, PL. The farm was represented by John J. Glenn of AndersonGlenn LLP.

The panel reversed the judgment for the farm and remanded the case to the Miami-Dade circuit court for further proceedings. The opinion states that it is not final until the court disposes of any timely motion for rehearing.