Torts
— Collision at intersection between motorized skate board being ridden by
plaintiff and a truck being driven by driver who claimed that he could not see
skateboard because of foliage at intersection — Error to enter summary
judgment for defendant city which had planted foliage in bulb-out at
intersection on basis that city was immune from suit because planting of
bulb-outs is a planning level decision for which city enjoys sovereign immunity
— Although designing and planting of bulb-out is a planning level decision,
maintenance of area is an operational level function for which city does not
enjoy sovereign immunity, and there is factual issue as to whether city
negligently maintained foliage planted in bulb-out so that vision of motorists
was obstructed — Error to enter summary judgment for defendant city’s
contracted landscape maintenance company where there was factual issue as to
whether company had duty to maintain bulb-out in question — Error to enter
summary judgment for defendant who owned property at corner of intersection
where there were factual issues as to whether defendant’s hedges were within or
without property boundaries, height of hedges at time of accident, and whether
height of hedges obstructed vision at intersection

JORGE PIEDRA, SR., etc., Appellant, v. CITY OF NORTH BAY
VILLAGE, etc., et al., Appellees. 3rd District. Case No. 3D14-2379. L.T. Case
No. 11-8314. May 4, 2016. An appeal from the Circuit Court for Miami-Dade
County, Ronald C. Dresnick, Judge. Counsel: John Herrera, for appellant.
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman and Michael R. Piper and
Christopher J. Stearns (Ft. Lauderdale), for appellee City of North Bay
Village; Richard A. Sherman, Sr., and James W. Sherman (Ft. Lauderdale); Law
Offices of Esther B. Nickas and Lynn M. Bagley, for appellee Groundskeepers,
Inc.; Gaebe, Mullen, Antonelli & DiMatteo and Elain D. Walter and Brian W.
Kelley, for appellee Oscar Alfaro.

(Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.)

(SUAREZ, C.J.) Jorge Piedra, Sr., on behalf of his son,
Jorge Piedra, Jr, a minor, appeals from final summary judgments entered in
favor of the City of North Bay Village, Groundskeepers, Inc., and Oscar Alfaro.
Appellant asserts that the trial court erred in granting summary judgment as to
all three Defendants where there exist issues of material fact as to each
Defendant/Appellee precluding summary judgment. We agree and reverse.1

The Appellant’s 12-year old son [“Piedra Jr.”] and his
friend were riding a motorized skateboard around the streets of the City of
North Bay Village. Both boys were riding the motorized skateboard in a sitting
or crouched position as they approached the intersection in question, which was
controlled by stop signs. They claim to have stopped before entering the
intersection. A truck driven by Dario Nanni arrived at the intersection along
the adjacent street. He also claims to have stopped before entering the
intersection. Between the two streets lies the Appellee City’s foliage-planted
intersection “bulb-outs”2 and property owner / Appellee
Alfaro’s hedges. The boys testified that they briefly glimpsed Nanni’s car
through a gap in the foliage between Alfaro’s hedge and the City’s planted bulb
out. Nanni testified that he did not see the boys approach the intersection
because the foliage was too high for him to see them sitting on the skateboard.
Nanni’s car collided with the boys on the skateboard when both parties entered
the intersection at the same time. Piedra Jr. suffered a broken leg. The City’s
police detective investigated and determined that Piedra Jr. was at fault as he
was an unauthorized operator of a “motor vehicle,” and because he was sitting
on the skateboard and could not be seen by driver Nanni.

Piedra’s father, Appellant, sued: 1) Nanni, for negligence3; 2) the City, alleging it negligently
allowed a known hazardous condition to exist at the intersection by allowing
the planted foliage in the bulb-out areas of the intersection to reach a height
that impeded Nanni’s line of sight; 3) Groundskeepers, the City’s contracted
landscaping maintenance company, for negligently maintaining the bulb-out
foliage; 4) property owner Alfaro for negligence, alleging Alfaro’s hedges were
negligently maintained around his property resulting in blocked views of either
approach to the intersection.

The City moved for summary judgment, asserting the
affirmative defense of sovereign immunity, arguing its decision to plant the
bulb-outs was a planning, rather than operational, function and thus precluded
liability. The City also asserted Piedra Jr.’s comparative negligence.
Groundskeepers joined in the City’s motion, arguing that it did not have a duty
to maintain the bulb-outs under its contract entered into with the City prior
to the bulb-out plantings; hence it, too, was not liable. Property owner Alfaro
moved for summary judgment, asserting that his hedge was fully within his
property boundaries and there was no record evidence that the hedge height
violated any City ordinance on the day of the accident. The trial court granted
summary judgment in favor of all three defendants.

Summary judgment should be exercised with special caution in
negligence actions, and granted only when there is a complete absence of
genuine issues of material fact. Holl v. Talcott, 191 So. 2d 40, 46
(Fla. 1966). Nothing should remain to be resolved but questions of law. Moore
v. Morris, 475 So. 2d 666 (Fla. 1985); Holl, 191 So. 2d at 46. If
the record on appeal reveals the merest possibility of genuine issues of
material fact, or even the slightest doubt in this respect, the summary
judgment must be reversed. Estate of Marimon ex rel. Falcon v. Florida Power
& Light Co., 787 So. 2d 887, 890 (Fla. 3d DCA 2001) (stating the
appellate court must consider the evidence in the light most favorable to the
nonmoving party and must draw all competing inferences in favor of the
nonmoving party).

City of North Bay Village: The City argues that it is
immune from suit because the planting of the bulb-outs was a planning decision
rather than an operational decision. See Slemp v. City of N. Miami,
545 So. 2d 256, 257 (Fla. 1989) (“The abiding test for determining whether a
government entity has sovereign immunity for its tortious acts is the
operational/planning formula set forth in Commercial Carrier Corp. v. Indian
River County, 371 So. 2d 1010 (Fla. 1979).”). “Planning level functions are
generally interpreted to be those requiring basic policy decisions, while
operational level functions are those that implement policy.” Commercial
Carrier, 371 So. 2d at 1021. As discussed in Wallace v. Dean, 3 So.
3d 1035, 1044 (Fla. 2009), when addressing the issue of governmental liability
under Florida law, we must first undertake a duty analysis. Should there be a
duty, then the inquiry is whether the governmental entity remains sovereignly
immune from suit notwithstanding the legislative waiver present in section
768.28, Florida Statutes. Thus, “[i]f no duty of care is owed with respect to
alleged negligent conduct, then there is no governmental liability, and the
question of whether the sovereign should be immune from suit need not be
reached. However, if a duty of care is owed, it must then be determined whether
sovereign immunity bars an action for an alleged breach of that duty.” Pollock
v. Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 932-33 (Fla. 2004).

To answer the initial question of duty, the issue is whether
the city’s actions were planning or operational. A government’s planning level
decisions are immune from suit, while a government’s operational decisions are
not immune from suit. Commercial Carrier, 371 So. 2d at 1010 (Fla.
1979). The record supports the conclusion that the City’s actions in designing
and planting the bulb out areas was a planning level function and therefore
immune from suit.

Maintenance of the area, however, is an operational, not a
planning level function. The City would not be immune from suit for its alleged
negligent actions or omissions in maintaining the bulb-out areas. See Commercial
Carrier, 371 So. 2d 1010 (Fla. 1979); Dep’t. Transp. v. Neilson, 419
So. 2d 1071 (Fla. 1982). See also Palm Beach County Bd. of Cty.
Commr’s v. Salas, 511 So. 2d 544 (Fla. 1987); Hughes v. City of Fort
Lauderdale, 519 So. 2d 43, 44 (Fla. 4th DCA 1988). To be sure,

[S]overeign
immunity does not bar an action against a governmental entity for rendering an
intersection dangerous by reason of obstructions to visibility if the danger is
hidden or presents a trap and the governmental entity has knowledge of the
danger but fails to warn motorists. Where a governmental entity knowingly
maintains an intersection right-of-way which dangerously obstructs the vision
of motorists using the street in a manner not readily apparent to motorists, it
is under a duty to warn of the danger or make safe the dangerous condition.

Bailey Drainage Dist. v. Stark,
526 So. 2d 678, 681 (Fla. 1988). See also Dykes by Dykes v. City of
Apalachicola, 645 So. 2d 50 (Fla. 1st DCA 1994) (finding material fact
issue existed as to whether conduct of 12-year-old mowing lawn in right-of-way
in front of home, in stepping into roadway, was foreseeable by city, which had
duty to maintain foliage in right-of-way, precluding summary judgment).

Therefore, whether the City negligently maintained or failed
to maintain the vegetation planted in the bulb-outs so as to obstruct the
vision of motorists at the intersection, thereby breaching its duty to the
plaintiff, is a disputed issue of fact precluding summary judgment for the
City.

Groundskeepers: Groundskeepers argues that
it did not have a duty to the plaintiff to maintain the vegetation in the
bulb-outs. Groundskeepers claims that it only maintained the bulb-outs when
specifically requested by the City and was not contractually obligated to
maintain these areas, as the bulb-outs were constructed and planted after
Groundskeepers entered into its contract with the City for maintenance.
Groundskeepers joined with the City’s motion for summary judgment, did not make
any legal argument at the summary judgment hearing, and without making any
findings of law or fact, the trial court granted summary judgment as to
Groundskeepers. The record, on the other hand, indicates that Groundskeepers
may have been obligated by contract to maintain the public rights of way.
Further, the record suggests that the decorative grasses planted in the
bulb-outs may grow to a height that could obstruct a motorist’s line of sight
to adjacent streets approaching the intersection. Where issues of fact are in
dispute regarding Groundskeeper’s duty to maintain the bulb-outs in question,
summary judgment was inappropriate.

Property Owner Alfaro: Questions of fact remain as
to whether property owner Alfaro’s hedges were within or outside the property
boundaries, the height of the hedges at the time of the accident and whether
the height of the hedges obstructed vision of the intersection. We follow the
reasoning set forth by the Florida Supreme Court in Williams v. Davis,
974 So. 2d 1052, 1062 (Fla. 2007) in holding that ordinarily a private
residential landowner should be held accountable under the zone of risk
analysis principles of McCain4 only when it can be determined that
the landowner has permitted conditions on the land to extend into the public
right-of-way so as to create a foreseeable hazard to traffic on the adjacent
streets. See, e.g. Dykes v. City of Apalachicola, 645 So. 2d 50,
52 (Fla. 1st DCA 1994) (applying McCain to determine liability of city
for trees and bushes along right-of-way obstructing view of motorists); Grier
v. Bankers Land Co., 539 So. 2d 552, 553 (Fla. 4th DCA 1989) (reversing
summary judgment in favor of a defendant landowner where foliage protruding
from defendant’s property into the right-of-way obstructed approaching
motorist’s view of the intersection); Fernandez v. Flores, 467 So. 2d
364, 365 (Fla. 2d DCA 1985) (finding that a jury question was presented where
car of property owner parked on shoulder of road obstructed approaching
motorist’s view of the intersection); Armas v. Metro. Dade County, 429
So. 2d 59, 60-61 (Fla. 3d DCA 1983) (reversing summary judgment in favor of a
defendant landowner where foliage protruding from defendant’s property into the
public right-of-way obstructed approaching motorist’s view of a stop sign); Morales
v. Costa, 427 So. 2d 297, 298 (Fla. 3d DCA 1983) (same). See also Williams
v. Davis, 974 So. 2d 1052, 1066 fn.3 (Fla. 2007). Certainly the issue
remains as to whether, at the time of the accident, the hedges were in
violation of the City ordinance regarding vegetation height limitations and
distances from the right-of-way, whether the vegetation extended beyond the
property boundaries and whether such growth created a visual hazard to those
approaching the intersection such that it was a legal cause of the accident in
question. See, e.g. Stevens v. Liberty Mut. Ins. Co., 415 So. 2d
51, 52 (Fla. 3d DCA 1982) (asserting that in the absence of a violation of a
statute, a landowner does not have a duty to “maintain his property in a condition
so that a motorist approaching a public highway intersection can see other
approaching motorists”) [emphasis supplied]; Pedigo v. Smith, 395 So. 2d
615, 615-17 (Fla. 5th DCA 1981) (finding no liability of landowner for visual
obstruction of tree located on the property); Evans v. S. Holding Corp.,
391 So. 2d at 232-33 (Fla. 3d DCA 1980) (declining to impose liability where
foliage entirely on property obstructed view of the intersection), abrogated by
Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001). Summary judgment was
therefore inappropriate.

After a careful review of the entire record on appeal and
viewing the facts in the light most favorable to the non-moving plaintiff, we
find genuine issues of material fact exist to preclude the entry of summary
judgment in favor of the defendants. The record reveals that a number of
material facts are disputed regarding the defendants’ duty to the plaintiff,
including 1) whether the foliage growing in the bulb-outs was negligently
maintained by the City such that, at the time of the accident, the vegetation
was so high or overgrown as to obscure visual observation of traffic
approaching the intersection; 2) whether the vegetation in the bulb-outs at the
time of the accident presented a hidden danger to motorists of which the City
knew or should have known and failed to provide warning; 3) whether the
intersection’s condition at the time of the accident was a cause of the
accident; 4) whether the property owner’s hedges at the time of the accident
were subject to and violated City ordinance regarding vegetation heights.
Finally, there may be comparative fault issues to be resolved where the facts
indicate the Plaintiff was riding a motorized skateboard, seated well below a
motorist’s line-of-sight, in the middle of a public street.5 Issues of negligence and proximate
cause are ordinarily questions for the jury if reasonable persons can arrive at
different conclusions. Cassel v. Price, 396 So. 2d 258 (Fla. 1st DCA),
rev. denied, 407 So.2d 1102 (Fla.1981); Seaboard Coast Line Railroad Co. v.
Griffis, 381 So. 2d 1063 (Fla. 1st DCA 1979).

We conclude that the Appellant has met its burden of proving
that genuine issues of material fact remain concerning the duties and relative
liabilities of the City, Groundskeepers, and the homeowner, Alfaro. The
defendants have not met their burden of proof to conclusively show the absence
of a genuine issue of material fact, thus precluding summary judgment. See
Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977); Sun
Chevrolet, Inc. v. Crespo, 613 So. 2d 105 (Fla. 3d DCA 1993); Florida
East Coast Ry. v. Metro. Dade County, 438 So. 2d 978 (Fla. 3d DCA 1983).
Accordingly, we reverse the final summary judgments entered in favor of the
City, Groundskeepers, and Alfaro, and remand the cause for further proceedings
consistent with this opinion.

Reversed and remanded.

__________________

1We address solely the issue of
whether or not the trial court was correct in granting summary judgment. We
make no conclusions regarding the merits of the case.

2A “bulb-out” is a curb extension or
planted area that extends parallel to the sidewalk into the street following
the curve of an intersection corner.

3Nanni was later voluntarily
dismissed by Piedra and is not part of this appeal.

4McCain v. Florida Power Corp.,
593 So. 2d 500 (Fla. 1992).

5See McCabe
v. Walt Disney World Co., 350 So. 2d 814, 815-16 (Fla. 4th DCA 1977)
(“[T]the questions of whether the appellant himself was contributorily
negligent or whether he had assumed the risk of injury through his conduct must
be decided by a jury. Such issues, now categorized under the rubric of
comparative negligence, are seldom appropriate for determination through the
vehicle of summary judgment. In short, the questions of the negligence of the
appellee and the comparative negligence of the appellant are material issues of
fact which exist so as to preclude entry of summary judgment.”). (citations
omitted).

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