42
Fla. L. Weekly D884b 

Torts — Counties — Trip and fall
over water valve which was located on county road and protruded above surface
because asphalt surrounding valve had sunk and was no longer flush with valve
— Trial court erred as matter of law in determining that water utility had no
legal duty to correct or warn of protruding water valve — By deciding to
operate utilities in public roadway, water utility assumed common law duty to
maintain its valves to allow public to safely navigate on or around them —
Evidence — Subsequent remedial measures — Trial court erred in granting
utility’s motion in limine to exclude evidence of its subsequent remedial
repairs to asphalt surrounding valve — Evidence of subsequent remedial repairs
would be admissible at trial to show control if utility denies that it had
ability to control roadway and make repairs in circumstances when its equipment
did not cause the damage or need repair — Further, if a witness testifies that
utility did not have control over roadway to make repairs to asphalt, evidence
of subsequent remedial measures would be admissible for impeachment

LEE COUNTY DEPARTMENT OF
TRANSPORTATION, Appellant, v. THE ISLAND WATER ASSOCIATION, INC., and ANNETTE
CANTALUPO, Appellees. 2nd District. Case No. 2D16-234. Opinion filed April 19,
2017. Appeal from the Circuit Court for Lee County; Elizabeth V. Krier, Judge.
Counsel: James L. Holloway, III, Assistant County Attorney, Lee County
Attorney’s Office, Fort Myers, for Appellant. Michael R. D’Lugo of Wicker,
Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee The Island Water
Association, Inc. No appearance for Appellee Annette Cantalupo.

(SILBERMAN, Judge.) Annette
Cantalupo tripped and fell over a water valve located on a county road. As a
result, she filed a negligence action against Lee County Department of
Transportation and The Island Water Association, Inc. Lee County appeals a
final summary judgment in favor of Island Water in which the trial court
determined that Island Water did not have a legal duty to repair the county
road around its water valve or warn the public. Lee County is also challenging
the trial court’s ruling to exclude evidence of subsequent remedial measures.
Because the trial court erred as a matter of law in determining that Island
Water did not have a legal duty, we reverse and remand for further proceedings.
We also address the issue regarding evidence of subsequent remedial measures
for purposes of remand. Based on this disposition, we need not address Lee
County’s remaining issue raised on appeal.1

In her amended complaint against Lee
County and Island Water, Cantalupo alleged that on December 5, 2010, she was
legally walking on a roadway when she tripped and fell over a water valve cover
(the valve) that was protruding in the roadway, causing her to sustain
injuries. The valve was on Captiva Drive in an area used by pedestrians.
Defendant Lee County owns Captiva Drive and Defendant Island Water owns the
valve and the pipes underneath it. Cantalupo alleged that Island Water owed her
a duty to exercise reasonable care for her safety. She further alleged that
Island Water breached that duty by negligently failing to maintain the valve in
the roadway, failing to inspect the valve to determine whether the protruding
valve constituted a hazard to pedestrians, failing to warn Cantalupo of the
danger of the protruding valve, and failing to correct the unreasonably
dangerous condition of the valve. In addition, Cantalupo alleged that Island
Water knew or should have known of this foreseeably dangerous condition but
failed to take any precautions to alleviate the dangerous condition or warn of
it.

At the time of Cantalupo’s accident,
the asphalt surrounding the valve had separated from around the valve. It
appeared that the asphalt had sunk such that the asphalt was no longer flush
with the valve, causing the valve to protrude above the asphalt. Approximately
three months after the accident, Island Water had repairs made to the asphalt
around the valve to bring the asphalt flush with the valve.

Island Water filed motions in limine
on a number of matters, and after a hearing, the trial court entered an order
on motions in limine and on legal duties in which it excluded evidence of
subsequent remedial measures. In one of its motions in limine, Island Water
also sought to exclude evidence that it had a legal duty to maintain the
asphalt surrounding the valve. In its order, the trial court determined that
Island Water did not have a duty to Cantalupo to maintain the road surrounding
the valve based on its repair of the road around the valve after the accident
or because it was contractually obligated to maintain the valve.

Cantalupo filed a motion for
reconsideration of the in-limine order, and Island Water filed a motion for
summary judgment as to the duty issue. Island Water asserted that there was a
pure issue of law as to whether Island Water had any legal duty before the
accident to maintain the asphalt surrounding the valve. The trial court
conducted one hearing on both motions. Cantalupo argued at the hearing that
Island Water had a legal duty in addition to its contractual duty. The trial
court denied the motion for reconsideration and entered a final summary
judgment in favor of Island Water. The trial court relied on an agreement
between Island Water and Lee County to determine: (1) Island Water’s only duty
to the public was as to its equipment, and (2) Island Water had no duty in a
circumstance where there was a depression in the asphalt around the valve and
Island Water did not install the asphalt or damage it.

Island
Water’s Legal Duty

Lee County contends that the trial
court erred in determining that Island Water had no duty to the public to warn
of or correct a protruding water valve in a public roadway. Our review is de
novo because the determination of the duty element of negligence is a question
of law. Chirillo v. Granicz, 199 So. 3d 246, 248 (Fla. 2016). In
addition, the review of a summary judgment is de novo. Id. at 249. To
uphold a summary judgment, there must be no genuine issue of material fact and
the moving party must be entitled to a judgment as a matter of law. Cook v.
Bay Area Renaissance Festival of Largo, Inc., 164 So. 3d 120, 122 (Fla. 2d
DCA 2015). If there is a possibility of a genuine issue of material fact,
summary judgment is inappropriate. See id.

In Chirillo, the Florida
Supreme Court recognized that McCain v. Florida Power Corp., 593 So. 2d
500 (Fla. 1992), is the starting point in negligence cases for an analysis of
the duty element. 199 So. 3d at 249. The McCain court explained that
foreseeability is related to both duty and proximate cause but in different
ways. 593 So. 2d at 502. “The duty element of negligence focuses on whether the
defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a
general threat of harm to others.” Id. (quoting Kaisner v. Kolb,
543 So. 2d 732, 735 (Fla. 1989)). Duty “is a minimal threshold legal
requirement for opening the courthouse doors.” Id. (footnote omitted).
The McCain court “described four sources of duty: statutes, judicial
interpretation of statutes, other judicial precedent, and the general facts of
the case.” Chirillo, 199 So. 3d at 250 (citing McCain, 593 So. 2d
at 503 n.2). Here, the general facts of the case give rise to the duty based on
the principle that “a legal duty will arise whenever a human endeavor creates a
generalized and foreseeable risk of harming others.” McCain, 593 So. 2d
at 503.

The issue of duty does not depend on
ownership of the property. Cook, 164 So. 3d at 122; Metsker v.
Carefree/Scott Fetzer Co., 90 So. 3d 973, 977 (Fla. 2d DCA 2012). A party
who has control over premises has a duty of care to keep the premises in
repair. Cook, 164 So. 3d at 122; Metsker, 90 So. 3d at 977. And
when two parties share control of the premises, both parties may have a duty of
care. Metsker, 90 So. 3d at 977; Craig v. Gate Maritime Props., Inc.,
631 So. 2d 375, 378 (Fla. 1st DCA 1994).

“As a general rule, utilities have
‘a duty to exercise care, both in the location or construction and in the use
and maintenance of its lines,’ poles, and equipment.” Webb v. Glades Elec.
Coop., Inc., 521 So. 2d 258, 259 (Fla. 2d DCA 1988) (quoting Padgett v.
W. Fla. Elec. Coop., Inc., 417 So. 2d 764, 766 (Fla. 1st DCA 1982)).
Applying the McCain analysis, when Island Water decided to operate
utilities in a public roadway, it assumed a common law duty to maintain its
valves to allow the public to safely navigate on or around them. On the date of
the accident, the valve was sticking up one and a half to two inches above the
asphalt. It was reasonably foreseeable that someone would trip over a valve
that was protruding above the roadway.

Even if the valve protruded due to
the erosion of the asphalt around it, Island Water is not absolved of its
responsibility to keep the public safe from a known tripping hazard. For
instance, in City of Tampa v. Jorda, 445 So. 2d 699, 700 (Fla. 2d DCA
1984), this court determined that the trial court properly submitted to the
jury the issue of the negligence of both the city and the landowner plaintiff.
There, the plaintiff fell when she stepped on the city’s water meter box in her
front yard. The meter box had become tilted because some of the sand under the
meter box had fallen away. The meter box gave way when the plaintiff stepped on
it, thus causing her to fall. Id. Similarly, Island Water’s valve became
a hazard when it protruded above the pavement when the asphalt around it eroded
or settled. See Utter v. Jacksonville Utils. Mgmt., Inc., 363 So.
2d 829, 829 (Fla. 1st DCA 1978) (reversing dismissal of amended complaint when
it alleged a water utility’s “negligent maintenance of its water meter and the
creation or failure to repair a hazardous hole surrounding it”); City of
Niceville v. Hardy, 160 So. 2d 535, 537 (Fla. 1st DCA 1964) (stating in a negligence
case that the plaintiff’s theory of recovery for a dangerous and defective
condition was sound when the plaintiff’s foot slid into a water meter box owned
by the city and the meter box, due to soil erosion, had become tilted so that
the lid would not stay on the box).

Here, based on the trial court’s
reliance on Lee County’s agreement with Island Water, the trial court found
that Island Water had a duty to the public only as to its equipment. Of course,
the fact that the valve was protruding made that equipment a hazard. Further,
an agreement between two parties does not necessarily absolve a party from a
duty to the public.

The trial court found that Island
Water had no duty regarding the asphalt around the valve because Island Water
had not installed that asphalt and had not damaged the asphalt during
maintenance checks. But despite a contract, a party who exercises control over
property may have a duty to maintain a premises in a reasonably safe condition.
See Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 736 (Fla. 4th
DCA 2012) (reversing summary judgment and stating that “a commercial tenant may
have a duty, independent of the landlord’s duty, to maintain premises in a
reasonably safe condition regardless of whether the landlord has contractually
assumed responsibility to maintain the premises”) (citing Levy v. Home
Depot, Inc., 518 So. 2d 941, 942 (Fla. 3d DCA 1987); Bovis v. 7-Eleven,
Inc., 505 So. 2d 661, 664 (Fla. 5th DCA 1987)). The trial court erred as a
matter of law in determining that Island Water had no legal duty to correct or
warn of a protruding water valve that was a tripping hazard. Therefore, we
reverse the final summary judgment and remand for further proceedings.

Evidence
of Subsequent Remedial Measures

Lee County contends that the trial
court erred in granting Island Water’s motion in limine to exclude evidence of
subsequent remedial repairs. Island Water claims that its equipment did not
cause the damage to the asphalt surrounding the valve. But about three months
after Cantalupo’s trip and fall, Island Water repaired the asphalt around the
valve. Island Water successfully argued to the trial court that evidence of the
subsequent remedial measures was inadmissible under section 90.407, Florida
Statutes (2015), because the purpose of the evidence was to show negligence or
culpable conduct.

Section 90.407 provides as follows:

Evidence
of measures taken after an injury or harm caused by an event, which measures if
taken before the event would have made injury or harm less likely to occur, is
not admissible to prove negligence, the existence of a product defect, or
culpable conduct in connection with the event. This rule does not require the
exclusion of evidence of subsequent remedial measures when offered for another
purpose, such as proving ownership, control, or the feasibility of
precautionary measures, if controverted, or impeachment.

Lee County argues that the exception
in section 90.407 applies because the evidence would be offered to show Island
Water’s control over the asphalt around the valve.

“It is well settled that a public or
private entity which owns, operates, or controls a property, including a
roadway, owes a duty to maintain that property, and a corresponding duty to
warn of and correct dangerous conditions thereon.” Pollock v. Fla. Dept. of
Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004). In Cook v. Bay Area
Renaissance Festival of Largo, Inc., 164 So. 3d 120, 122 (Fla. 2d DCA
2015), this court also recognized that a party who exercises control over a
premises has a corresponding duty and reversed a summary judgment in favor of
the defendant. There, the fact that an employee of the defendant removed the
pipe that caused the injury after the accident was a factor in determining
whether the defendant exercised control of the premises. Id. at 123. In
considering all the evidence, this court determined that issues of material
fact existed regarding whether the defendant exercised control of the area
where the plaintiff was injured. Id.

Here, the parties seem to dispute on
appeal whether the issue of Island Water’s control of the roadway was
controverted. Island Water acknowledged the ability to control the roadway
under circumstances when its equipment caused damage or needed repairs. And the
trial court found, “It is uncontroverted that [Island Water] has the ability to
access and affect the road around the valve if such is required in order to
repair or maintain the valve.” But the issue that Lee County raises is whether
Island Water had the ability to control the roadway around the valve absent the
need for repairs to Island Water’s equipment.

This issue will need to be addressed
on remand because we are reversing on the issue of legal duty. Thus, on remand,
the evidence of subsequent remedial repairs would be admissible at trial to
show control if Island Water denies that it had the ability to control the
roadway to make repairs in circumstances when its equipment did not cause the
damage or need repair.

In addition, Lee County argues that
the subsequent remedial measures are admissible as impeachment. On remand, if a
witness testifies that Island Water did not have control over the roadway to
make the repairs to the asphalt, then evidence of subsequent remedial measures
would be admissible for impeachment. See § 90.407.

Conclusion

We reverse the final summary
judgment in favor of Island Water and the order of December 16, 2015, that sets
forth findings on the motion for reconsideration regarding subsequent remedial
measures. We also reverse the order in limine of December 1, 2015, as to the
ruling on subsequent remedial measures and the legal duty of Island Water. We
remand for further proceedings in the trial court.

 

Reversed and remanded. (KELLY and
WALLACE, JJ., Concur.)

1In a related appeal, Cantalupo
raises the same issues Lee County raises here, and for the reasons expressed in
this opinion, we reverse and remand in Cantalupo’s appeal. See Cantalupo
v. Island Water Ass’n, No. 2D16-363 (Fla. 2d DCA April 19, 2017) [42 Fla.
L. Weekly D884a].

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