Third District Court of Appeal
State of Florida
Opinion filed October 28, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-1982
Lower Tribunal No. 23-11400-CA-01
Amanda Miguel Collado Laguna,
Appellant,
vs.
The Berry Farm, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Javier A. Enriquez, Judge.
Eaton & Wolk, PL and Daniel R. Schwartz and Douglas F. Eaton, for appellant.
AndersonGlenn LLP, and John J. Glenn and Amanda N. Rumker
(Boca Raton), for appellee.
Before MILLER, LOBREE and GOODEN, JJ.
LOBREE, J.
Amanda Miguel Collado Laguna (“Collado”) appeals a final summary
judgment entered in favor of The Berry Farm, LLC (“Berry”) in this negligence
action in which Collado seeks damages for the personal injuries she suffered
when using a slide located on Berry’s premises. The trial court entered
summary judgment for Berry on the basis that it was immune from liability
under section 570.88(1), Florida Statutes (2021). We conclude that the trial
court erred in granting summary judgment because there are genuine issues
of material fact as to Berry’s compliance with the posting and notice
requirements of section 570.89, Florida Statutes (2021), which are
necessary to invoke the privilege of immunity provided by section 570.88(1).
BACKGROUND
Berry is a working farm located in Miami. On October 10, 2021,
Collado visited Berry with her three year old son to attend Berry’s annual
Harvest Festival. While there, Collado fractured her right ankle when her
feet hit the ground after going down a slide in the children’s playground area.
Collado subsequently filed an amended complaint for negligence against
Berry alleging that it: (1) failed to maintain reasonable care of its premises
and allowed a dangerous condition to be on its premises for an unreasonable
amount of time, causing her to fall, and that Berry had a duty to warn her
about the dangerous conditions; and (2) failed in its obligation to implement
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proper safety protocols when operating the slide and failed in its obligation
to ensure that the slide was operated in a safe manner. Berry answered and
raised numerous affirmative defenses, including that it was immune from
liability under section 570.88, Florida Statutes.
Berry moved for summary judgment, arguing in part that as an
“agritourism operator” as defined by section 570.86(2), Florida Statutes
(2021), it was shielded from liability for Collado’s injury under section
570.88(1) because Collado’s injury resulted from an inherent risk of an
agritourism activity, and on the date of the incident it had posted “at its
entrance and next to the playground area” signs containing the notice of
inherent risk as required by section 570.89. In support, Berry relied on the
affidavit of Karl Wiegandt, the owner and managing member of Berry.
Wiegandt attested that Berry’s premises includes playground areas to
provide entertainment and recreational activities for children, and those
playgrounds have slides for use by children. Wiegandt further attested that
on October 11, 2021, Berry 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 body of the affidavit included three
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photos of “examples” of the signs that were posted “throughout The Berry’s
Farm’s property.”
Collado responded in opposition to Berry’s summary judgment motion.
Relevant here, Collado asserted that there is a genuine issue of material fact
as to whether any signs were posted in accordance with section 570.89 on
the date of the incident because: (1) the photos that Berry relies on to show
that the signs were posted on October 21, 2021, have a date stamp of June
15, 2022; (2) Wiegandt was unable to testify in his deposition as to when the
signs were put up; (3) a screenshot from Berry’s Instagram account six days
before the incident shows only one sign posted in the playground, and an
inspection of the premises on May 8, 2025, showed that sign stated that
parental supervision is required for use of the playground; and (4) Collado
testified in her deposition that she did not see a sign at the entrance of the
property or at the playground site. In support of her response, Collado relied
on: Wiegandt’s deposition; a photograph of a sign stating that parental
supervision is required for use of the playground; her own deposition;
photographs of warning signs provided by Berry; screenshots from Berry’s
Instagram account from August 1, 2021, September 15, 2021, and October
4, 2021.
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Collado testified in her deposition that she did not recall what the
entrance to Berry looks like and she did not remember any signs outside the
entrance. When asked if she noticed “any warning signs on the day of the
incident before you slid down the slide,” Collado responded that “[t]here was
nothing there.” Collado was then shown a defense exhibit of images of two
warning signs. When asked if she had seen the signs on the day of the
incident, Collado answered that she had not, and then testified that the signs
were “not present on the day” of the incident and “[t]hey were nowhere
inside.” In his deposition, Wiegandt testified about the photographs of the
signs date stamped June 15, 2022. He stated that the signs are located to
the right and left of the main pavilion, and that the signs were placed on the
property before Berry’s first opening.
After a hearing, the trial court granted summary judgment for Berry. As
to the requirements of section 570.89, the trial court found that Weigant’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.” The trial court found that Collado “presented no admissible
evidence showing that such signs were not posted on the date of the
incident.” Specifically, Collado’s “inability to recall seeing a sign,” and
reliance on Instagram images that do not depict the entire premises or
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playground area, did not create a genuine issue of material fact. The trial
court concluded that because Collado was injured while participating in an
agritourism activity which had an inherent risk and Berry posted warning
signs in accordance with section 570.89, Berry’s liability for Collado’s injury
was precluded under section 570.88. Thereafter, the trial court entered final
judgment for Berry.
STANDARD OF REVIEW
“The court shall grant summary judgment 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). “Accordingly, ‘the
correct test for the existence of a genuine factual dispute is whether “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.”’” Feldman v. Schocket, 366 So. 3d 1104, 1107 (Fla. 3d
DCA 2022) (quoting In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So.
3d 72, 75 (Fla. 2021)); see also Ortega v. JW Marriott Inv., LLC, 405 So. 3d
473, 477 (Fla. 3d DCA 2025) (“Properly understood, summary judgment is
akin to a pre-trial directed verdict.” (quoting CG Tides LLC v. SHEDDF3 VNB,
LLC, 388 So. 3d 1081, 1084 (Fla. 3d DCA 2024)).
Because Berry raised section 570.88 as an affirmative defense, it has
the burden of proof at trial to show its entitlement to immunity from liability
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under that section. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d
1086, 1096 (Fla. 2010). Where the party moving for summary judgment has
the burden of proof at trial, “the movant must affirmatively show the absence
of a genuine issue of material fact: it must support its motion with credible
evidence that would entitle it to a directed verdict if not controverted at trial.”
K & M Elec. Supply, Inc. v. Brown Elec. Sols., LLC, 432 So. 3d 1045, 1049
(Fla. 4th DCA 2026); see also United States v. Four Parcels of Real Prop. in
Greene & Tuscaloosa Ctys. in State of Ala., 941 F.2d 1428, 1438 (11th Cir.
1991) (stating that when the party moving for summary judgment has the
burden of proof at trial, it “must show that, on all the essential elements of its
case on which it bears the burden of proof at trial, no reasonable jury could
find for the nonmoving party. If the moving party makes such an affirmative
showing, it is entitled to summary judgment unless the nonmoving party, in
response, ‘come[s] forward with significant, probative evidence
demonstrating the existence of a triable issue of fact.’” (cleaned up) (quoting
Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.
1991))). “The evidence in the summary judgment record is interpreted in the
light most favorable to the non-moving party.” CG Tides LLC, 388 So. 3d at
1085.
ANALYSIS
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Collado argues that the trial court erred in entering summary judgment
for Berry because genuine issues of material fact exist as to whether on the
day of her injury Berry was in compliance with the notice and posting
requirements of 570.89. Specifically, Collado contends that the trial court
disregarded her deposition testimony that there were no warning signs
present on the day of the incident. We agree.
Sections 570.85–89, Florida Statutes, govern agritourism in Florida.
Section 570.88 affords a limitation on legal liability to an agritourism operator
where a plaintiff’s injury resulted from the inherent risks of an agritourism
activity. That section provides as follows, in part:
(1) Except as provided in subsection (2), an agritourism operator,
his or her employer or employee, or the owner of the underlying
land on which the agritourism occurs 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. Except as provided in
subsection (2), a participant, or a participant’s representative,
may not maintain an action against or recover from an
agritourism operator, his or her employer or employee, or the
owner of the underlying land on which the agritourism occurs for
the injury or death of, or damage or loss to, an agritourism
participant resulting exclusively from any of the inherent risks of
agritourism activities.
§ 570.88(1), Fla. Stat. (emphasis added). In order to “invok[e] the privileges
of immunity provided by this section,” an “agritourism operator . . . or the
owner of the underlying land on which the agritourism occurs” must comply
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with sections 570.89(1),(2). § 570.89(3), Fla. Stat. Those sections provide
as follows:
(1)(a) Each agritourism operator shall post and maintain signs
that contain the notice of inherent risk specified in subsection (2).
A sign shall be placed in a clearly visible location at the entrance
to the agritourism location and at the site of the agritourism
activity. The notice of inherent risk must consist of a sign in black
letters, with each letter a minimum of 1 inch in height, with
sufficient color contrast to be clearly visible.
(2) The sign and contract required under subsection (1) must
contain the following notice of inherent risk:
WARNING
Under Florida law, an agritourism operator is not liable for injury
or death of, or damage or loss to, a participant in an agritourism
activity conducted at this agritourism location if such injury,
death, damage, or loss results from the inherent risks of the
agritourism activity. Inherent risks of agritourism activities
include, among others, risks of injury inherent to land, equipment,
and animals, as well as the potential for you to act in a negligent
manner that may contribute to your injury, death, damage, or
loss. You are assuming the risk of participating in this agritourism
activity.
§ 570.89(1)(a),(2), Fla. Stat. (emphasis added).
Here, the trial court found that Wiegandt’s affidavit demonstrated “that
signs compliant with Section 570.89, Florida Statutes, were posted at the
entrance and by the playground as early as 2020.” The trial court then found
that Collado’s “inability to recall seeing a sign, or pointing to photos that
simply do not capture signage” did not create a genuine issue of material fact
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on the issue of Berry compliance with section 570.89, and concluded that
Weigandt’s testimony was “undisputed and unrebutted.” In so concluding,
the trial court failed to consider the entirety of Collado’s deposition testimony.
Although Collado testified that she did not remember any signs outside the
entrance to Berry, she further testified that warning signs were not present
at Berry on the day of incident and that “they were nowhere inside.”
Credibility determinations are for the jury, and a reasonable jury could
conclude that Collado’s testimony was more believable than Weingardt’s
statement that signs containing the notice requirement of section 570.89
were posted at Berry’s entrance and the playground area. “While ‘[t]he new
Florida Rule of Civil Procedure 1.510 indubitably endows the trial court with
considerably broader authority to resolve a case on summary judgment, the
general rule remains intact: credibility determinations and weighing the
evidence are jury functions, not those of a judge.’” Katha, LLC v. SHEDDF3-AE, LLC, 394 So. 3d 707, 710 (Fla. 3d DCA 2024) (cleaned up) (quoting
Navarro v. Borges, 388 So. 3d 1044, 1047 (Fla. 3d DCA 2024)). Additionally,
the three images of “example” signs contained in the body of Wiegandt’s
affidavit do not contradict Collado’s testimony that there were no signs the
day of the incident. Two of the images reflect a June 2022 date, which is
eight months after the incident, and the location of the third, undated
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“example” of a sign is unclear as to its location. See, e.g., Del Rio v. Russell
Eng’g, Inc., 351 So. 3d 1180, 1183 (Fla. 3d DCA 2022) (reversing summary
judgment entered in favor of defendant where neither party’s photograph
established how or where relevant manhole appeared on date of accident
and therefore photographic evidence did not contradict plaintiff’s testimony
as to manhole’s location; “[Plaintiff]’s testimony was sufficient to establish a
disputed issue of material fact concerning the location of the manhole cover.
The photographic evidence produced did not definitively disprove [plaintiff]’s
testimony. Rather, when [plaintiff]'s testimony and the photographic
evidence at issue are taken together, it is clear they present an issue of fact
for a jury to decide.”).
Viewing the record in the light most favorable to the non-movant, there
remains a triable issue of fact as to whether Berry was in compliance with
section 570.89 on the day of the incident such that a reasonable jury could
return a verdict for Collado.1 See Chowdhury v. BankUnited, N.A., 366 So.
3d 1130, 1134 (Fla. 3d DCA 2023) (“Our new summary judgment standard
mirrors the standard for a directed verdict such that the inquiry focuses on
1
As we reverse on this single basis, we do not reach Collado’s alternative contention that the trial court erred in entering summary judgment because her injury did not result from “inherent risks of agritourism activities.” § 570.88(1), Fla. Stat. (2021).
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‘whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.’” (quoting In re Amends. to Fla. Rule of Civ. Proc. 1.510,
309 So. 3d 192, 192 (Fla. 2020))). We therefore find that the trial court erred
in granting summary judgment for Berry as a matter of law. Accordingly, we
reverse the summary judgment entered in Berry’s favor and remand for
further proceedings.
Reversed and remanded.
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