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Fla. L. Weekly D47aTop of Form
Fla. L. Weekly D47aTop of Form
Torts
— Duty of care — Action against owner of gas station which lobbied local
county government to create a cut in median to allow access to its property by
plaintiff who was injured when a motorist traveled through the cut in the
median to make a left-hand turn into plaintiff’s lane of traffic — Trial court
properly dismissed claim based on defendant’s lobbying to have cut created in
median, as defendant owed no duty to plaintiff in petitioning government to
make road improvements outside defendant’s property — Defendant’s application
to have median cut constituted the statements of a citizen to a political
authority regarding matters of public concern shielded by qualified privilege
— Trial court erred in dismissing claim that defendant painted driveway
markings on its property that encouraged drivers to turn left out of its property
when it knew or should have known that such turns presented an unreasonable
danger
— Duty of care — Action against owner of gas station which lobbied local
county government to create a cut in median to allow access to its property by
plaintiff who was injured when a motorist traveled through the cut in the
median to make a left-hand turn into plaintiff’s lane of traffic — Trial court
properly dismissed claim based on defendant’s lobbying to have cut created in
median, as defendant owed no duty to plaintiff in petitioning government to
make road improvements outside defendant’s property — Defendant’s application
to have median cut constituted the statements of a citizen to a political
authority regarding matters of public concern shielded by qualified privilege
— Trial court erred in dismissing claim that defendant painted driveway
markings on its property that encouraged drivers to turn left out of its property
when it knew or should have known that such turns presented an unreasonable
danger
CRYSTAL SEWELL, Appellant, v.
RACETRAC PETROLEUM, INC., Appellee. 3rd District. Case No. 3D16-1218. L.T. Case
No. 10-38782. December 27, 2017. An Appeal from the Circuit Court for
Miami-Dade County, Thomas J. Rebull, Judge. Counsel: Schlesinger Law Offices,
P.A., and Gregg A. Schlesinger and Zane Berg (Fort Lauderdale); Brannock &
Humphries, and Shea T. Moxon and Celene Humphries (Tampa), for appellant. Luks,
Santaniello, Petrillo & Jones, and Daniel J. Santaniello, Edgardo Ferreyra,
Jr., Shana P. Nogues, and Heather M. Calhoon, for appellee.
RACETRAC PETROLEUM, INC., Appellee. 3rd District. Case No. 3D16-1218. L.T. Case
No. 10-38782. December 27, 2017. An Appeal from the Circuit Court for
Miami-Dade County, Thomas J. Rebull, Judge. Counsel: Schlesinger Law Offices,
P.A., and Gregg A. Schlesinger and Zane Berg (Fort Lauderdale); Brannock &
Humphries, and Shea T. Moxon and Celene Humphries (Tampa), for appellant. Luks,
Santaniello, Petrillo & Jones, and Daniel J. Santaniello, Edgardo Ferreyra,
Jr., Shana P. Nogues, and Heather M. Calhoon, for appellee.
(Before ROTHENBERG, C.J., and EMAS
and LOGUE, JJ.)
and LOGUE, JJ.)
(LOGUE, J.) Crystal Sewell lost
control of her vehicle and hit a palm tree after her car was allegedly cut off
by an unknown vehicle that took a left-hand turn from a gas station and
abruptly joined the lane of traffic in which Sewell was traveling. In doing so,
the unknown vehicle traveled through a cut in the concrete median provided for
traffic. Sewell sued Racetrac Petroleum, Inc., the corporation that owned,
developed, and operated the gas station, in large part because Racetrac created
a dangerous condition when it lobbied the local county government to create the
cut in the median to promote access to its property.
control of her vehicle and hit a palm tree after her car was allegedly cut off
by an unknown vehicle that took a left-hand turn from a gas station and
abruptly joined the lane of traffic in which Sewell was traveling. In doing so,
the unknown vehicle traveled through a cut in the concrete median provided for
traffic. Sewell sued Racetrac Petroleum, Inc., the corporation that owned,
developed, and operated the gas station, in large part because Racetrac created
a dangerous condition when it lobbied the local county government to create the
cut in the median to promote access to its property.
Sewell appeals the dismissal of her
negligence action against Racetrac, the denial of her motion to plead punitive
damages, and the denial of her motion for spoliation damages. We affirm without
discussion the denial of the motion to plead punitive damages and the denial of
her motion for spoliation damages. Regarding the dismissal of her case, we
affirm in part and reverse in part.
negligence action against Racetrac, the denial of her motion to plead punitive
damages, and the denial of her motion for spoliation damages. We affirm without
discussion the denial of the motion to plead punitive damages and the denial of
her motion for spoliation damages. Regarding the dismissal of her case, we
affirm in part and reverse in part.
I. Background
According to the complaint, on
August 29, 2007, Sewell was driving eastbound on Northeast 8th Street in
Homestead, Florida. Northeast 8th Street is a four-lane road with two eastbound
lanes of traffic and two westbound lanes divided by a concrete median.
Racetrac’s gas station is located on the northern side of Northeast 8th Street.
Opposite the gas station, there is a cut in the concrete median. The cut allows
vehicles traveling east on Northeast 8th Street to enter a turn lane at the cut
and use the cut to turn left into the gas station. It also allows vehicles
exiting the gas station to turn left out of the gas station and go eastbound on
Northeast 8th Street.
August 29, 2007, Sewell was driving eastbound on Northeast 8th Street in
Homestead, Florida. Northeast 8th Street is a four-lane road with two eastbound
lanes of traffic and two westbound lanes divided by a concrete median.
Racetrac’s gas station is located on the northern side of Northeast 8th Street.
Opposite the gas station, there is a cut in the concrete median. The cut allows
vehicles traveling east on Northeast 8th Street to enter a turn lane at the cut
and use the cut to turn left into the gas station. It also allows vehicles
exiting the gas station to turn left out of the gas station and go eastbound on
Northeast 8th Street.
Sewell alleges that as she
approached the gas station, an unknown vehicle exited the gas station,
traversed the cut, turned left, and joined the eastbound lane of travel in
which Sewell was also traveling. As a result, Sewell lost control of her
vehicle, hit a palm tree, and suffered injuries. Sewell did not allege that
either car’s view was obscured or obstructed.
approached the gas station, an unknown vehicle exited the gas station,
traversed the cut, turned left, and joined the eastbound lane of travel in
which Sewell was also traveling. As a result, Sewell lost control of her
vehicle, hit a palm tree, and suffered injuries. Sewell did not allege that
either car’s view was obscured or obstructed.
Sewell’s complaint presents two
legal theories. The main legal theory is that Racetrac’s application to obtain
the cut in the concrete median to facilitate traffic into and out of the
property was tortious because Racetrac “knew or should have known that opening
the median to allow ‘full access’ would . . . pose an undue risk of harm to the
motoring public” and “[i]f the median had not been removed to permit vehicles
exiting the subject gas station to turn left, the subject collision would not
have occurred.”
legal theories. The main legal theory is that Racetrac’s application to obtain
the cut in the concrete median to facilitate traffic into and out of the
property was tortious because Racetrac “knew or should have known that opening
the median to allow ‘full access’ would . . . pose an undue risk of harm to the
motoring public” and “[i]f the median had not been removed to permit vehicles
exiting the subject gas station to turn left, the subject collision would not
have occurred.”
In 1977, Racetrac agreed to purchase
the property only if the governing agencies approved the cut in the median. In
obtaining approval from Miami-Dade County, Racetrac submitted one traffic study
that used the Institute of Transportation Engineers Trip Generation category
for “Convenience Market with Gas Pumps.” Sewell alleges that “there were other
categories . . . that would have been more applicable to Racetrac.” Racetrac
also submitted another traffic study that should have been based on a different
set of its existing stores. Sewell further alleges that Racetrac, through
“bribery and corruption,” obtained the support of its application from City of
Homestead officials, although, as the complaint admits, “city officials don’t
get to decide whether the median gets removed or not (county officials do).”
the property only if the governing agencies approved the cut in the median. In
obtaining approval from Miami-Dade County, Racetrac submitted one traffic study
that used the Institute of Transportation Engineers Trip Generation category
for “Convenience Market with Gas Pumps.” Sewell alleges that “there were other
categories . . . that would have been more applicable to Racetrac.” Racetrac
also submitted another traffic study that should have been based on a different
set of its existing stores. Sewell further alleges that Racetrac, through
“bribery and corruption,” obtained the support of its application from City of
Homestead officials, although, as the complaint admits, “city officials don’t
get to decide whether the median gets removed or not (county officials do).”
The complaint presents a second
theory of liability that Racetrac negligently failed to make adjustments on its
own property to deal with the alleged danger presented to the traveling public
by vehicles turning left out of its property. In particular, Sewell alleged
that Racetrac painted driveway markings that encouraged customers to turn left
out of its property when it knew or should have known that such turns presented
an unreasonable danger.
theory of liability that Racetrac negligently failed to make adjustments on its
own property to deal with the alleged danger presented to the traveling public
by vehicles turning left out of its property. In particular, Sewell alleged
that Racetrac painted driveway markings that encouraged customers to turn left
out of its property when it knew or should have known that such turns presented
an unreasonable danger.
Racetrac filed a motion to dismiss,
which the trial court granted after briefing and an extensive argument. This
appeal followed.
which the trial court granted after briefing and an extensive argument. This
appeal followed.
II. Analysis
In reviewing a motion to dismiss,
the truth of the allegations is assumed. See Xavier v. Leviev
Boymelgreen Marquis Developers, LLC, 117 So. 3d 773, 775 (Fla. 3d DCA 2012)
(“In ruling on a motion to dismiss, all well-pled facts in the complaint are
accepted as true.”).
the truth of the allegations is assumed. See Xavier v. Leviev
Boymelgreen Marquis Developers, LLC, 117 So. 3d 773, 775 (Fla. 3d DCA 2012)
(“In ruling on a motion to dismiss, all well-pled facts in the complaint are
accepted as true.”).
The trial court dismissed the
complaint because it found that Racetrac owed no legal duty to Sewell. At the
outset, we note that while the tort of negligence requires the establishment of
duty, breach, proximate cause, and damages, it is for the court to determine
the existence of a duty. “Duty is the standard of conduct given to the jury for
gauging the defendant’s factual conduct.” McCain v. Florida Power Corp.,
593 So. 2d 500, 503 (Fla. 1992). It “exists as a matter of law and is not a
factual question for the jury to decide.” Id.
complaint because it found that Racetrac owed no legal duty to Sewell. At the
outset, we note that while the tort of negligence requires the establishment of
duty, breach, proximate cause, and damages, it is for the court to determine
the existence of a duty. “Duty is the standard of conduct given to the jury for
gauging the defendant’s factual conduct.” McCain v. Florida Power Corp.,
593 So. 2d 500, 503 (Fla. 1992). It “exists as a matter of law and is not a
factual question for the jury to decide.” Id.
The touchstone for determining
whether a duty exists is “foreseeability.” Id. “[W]here a person’s
conduct is such that it creates a ‘foreseeable zone of risk’ posing a general
threat of harm to others, a legal duty will ordinarily be recognized to ensure
that the underlying threatening conduct is carried out reasonably.” Williams
v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007). In a few “exceptional” areas
of the law, however, a legal duty is sometimes not recognized or is
substantially curtailed even if the risk is foreseeable. Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 7 (Am. Law Inst. 2010).1
whether a duty exists is “foreseeability.” Id. “[W]here a person’s
conduct is such that it creates a ‘foreseeable zone of risk’ posing a general
threat of harm to others, a legal duty will ordinarily be recognized to ensure
that the underlying threatening conduct is carried out reasonably.” Williams
v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007). In a few “exceptional” areas
of the law, however, a legal duty is sometimes not recognized or is
substantially curtailed even if the risk is foreseeable. Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 7 (Am. Law Inst. 2010).1
Regarding landowner liability, for
example, the Florida Supreme Court has held that an owner of residential
property in a rural area did not have a duty to cut trees contained entirely in
its property to ensure vehicles approaching an intersection from different
directions could see each other, even though it was foreseeable that the
blocked view might cause vehicles driven by negligent drivers to collide. Williams,
974 So. 2d at 1058-59. In that case the Court held that McCain‘s
foreseeability analysis did not create landowner liability in that context:
example, the Florida Supreme Court has held that an owner of residential
property in a rural area did not have a duty to cut trees contained entirely in
its property to ensure vehicles approaching an intersection from different
directions could see each other, even though it was foreseeable that the
blocked view might cause vehicles driven by negligent drivers to collide. Williams,
974 So. 2d at 1058-59. In that case the Court held that McCain‘s
foreseeability analysis did not create landowner liability in that context:
[W]hile we
have found there is no principled basis for not extending the law of negligence
set out in McCain to the conditions on private property that may
protrude into the public right-of-way so as to create a hazard to adjacent
traffic, we conclude that residential landowners who do not permit conditions
on their land to extend beyond its boundaries should not be subject to the same
liability.
have found there is no principled basis for not extending the law of negligence
set out in McCain to the conditions on private property that may
protrude into the public right-of-way so as to create a hazard to adjacent
traffic, we conclude that residential landowners who do not permit conditions
on their land to extend beyond its boundaries should not be subject to the same
liability.
Williams, 974 So. 2d at 1063.
Thus, as the law of Florida has held
for almost fifty years, “ ‘[d]uty’ is not sacrosanct in itself, but only an
expression of the sum total of those considerations of policy which lead the
law to say that the particular plaintiff is entitled to protection [or not].” Gracey
v. Eaker, 837 So. 2d 348, 354-55 (Fla. 2002) (quoting Rupp v. Bryant,
417 So. 2d 658, 667 (Fla. 1982)).
for almost fifty years, “ ‘[d]uty’ is not sacrosanct in itself, but only an
expression of the sum total of those considerations of policy which lead the
law to say that the particular plaintiff is entitled to protection [or not].” Gracey
v. Eaker, 837 So. 2d 348, 354-55 (Fla. 2002) (quoting Rupp v. Bryant,
417 So. 2d 658, 667 (Fla. 1982)).
As Gracey teaches, the
determination of whether a particular duty of care exists may depend on the
nature of the relationship between the parties. Cf. Limones v. Sch.
Dist. of Lee Cty., 161 So. 3d 384, 389 (Fla. 2015) (holding that because of
the nature of a school’s relationship to their juvenile students, a jury could
find that the school breached its duty of care by not providing student
athletes with defibrillators); Sells v. CSX Transp., Inc., 170 So. 3d
27, 33 (Fla. 1st DCA 2015) (finding that given the nature of the employer and
employee relationship, the employer had no duty to provide defibrillators to
employees working in remote locations); L.A. Fitness Int’l, LLC v. Mayer,
980 So. 2d 550, 552 (Fla. 4th DCA 2008) (holding that because of the nature of
the relationship between a commercial business and its client, the fitness club
had no duty to provide defibrillators).
determination of whether a particular duty of care exists may depend on the
nature of the relationship between the parties. Cf. Limones v. Sch.
Dist. of Lee Cty., 161 So. 3d 384, 389 (Fla. 2015) (holding that because of
the nature of a school’s relationship to their juvenile students, a jury could
find that the school breached its duty of care by not providing student
athletes with defibrillators); Sells v. CSX Transp., Inc., 170 So. 3d
27, 33 (Fla. 1st DCA 2015) (finding that given the nature of the employer and
employee relationship, the employer had no duty to provide defibrillators to
employees working in remote locations); L.A. Fitness Int’l, LLC v. Mayer,
980 So. 2d 550, 552 (Fla. 4th DCA 2008) (holding that because of the nature of
the relationship between a commercial business and its client, the fitness club
had no duty to provide defibrillators).
Turning to this case, the decision
of whether or not to improve roadways or upgrade traffic control devices often
pits the interests of some users of the roads against the interest of others.
For example, businesses and commuters may want traffic control devices that
speed up and facilitate the flow of traffic. Neighborhood groups, on the other
hand, may want traffic control devices that slow or divert traffic. The process
for making these decisions involves the quasi-political balancing of the
competing and conflicting needs of different parts of the community with the
limited resources available. For this reason, the law recognizes that these
matters involve the “judgmental, planning-level decisions” by the political
branches of government “which are not actionable.” Dep’t of Transp. v.
Konney, 587 So. 2d 1292, 1295 (Fla. 1991) (citing Trianon Park Condo.
Ass’n v. City of Hialeah, 468 So. 2d 912 (Fla. 1985) and Commercial
Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)).
of whether or not to improve roadways or upgrade traffic control devices often
pits the interests of some users of the roads against the interest of others.
For example, businesses and commuters may want traffic control devices that
speed up and facilitate the flow of traffic. Neighborhood groups, on the other
hand, may want traffic control devices that slow or divert traffic. The process
for making these decisions involves the quasi-political balancing of the
competing and conflicting needs of different parts of the community with the
limited resources available. For this reason, the law recognizes that these
matters involve the “judgmental, planning-level decisions” by the political
branches of government “which are not actionable.” Dep’t of Transp. v.
Konney, 587 So. 2d 1292, 1295 (Fla. 1991) (citing Trianon Park Condo.
Ass’n v. City of Hialeah, 468 So. 2d 912 (Fla. 1985) and Commercial
Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)).
By petitioning Miami-Dade County to
obtain the cut in the median, Racetrac entered into this planning process. As a
participant in this process, Racetrac could advocate freely — even fiercely —
for its own interests. Racetrac did not have a relationship with Sewell (or
others like her) that would create in Racetrac a legal duty to tailor its
petition to protect Sewell and other competing road users.
obtain the cut in the median, Racetrac entered into this planning process. As a
participant in this process, Racetrac could advocate freely — even fiercely —
for its own interests. Racetrac did not have a relationship with Sewell (or
others like her) that would create in Racetrac a legal duty to tailor its
petition to protect Sewell and other competing road users.
At best, Sewell alleged Racetrac
submitted expert traffic studies that were extremely one-sided and
unprofessionally skewed to support its application to have the median cut. Such
allegations, without more, are not actionable. This is not a case in which
Sewell alleges Racetrac petitioned the government for the primary purpose of
intentionally or maliciously harming Sewell or others like her. See, e.g.,
Londono v. Turkey Creek, Inc., 609 So. 2d 14, 18 (Fla. 1992). For this
reason, Racetrac’s application to have the median cut, whether riddled with
misrepresentations or not, constituted “the statements of a citizen to a
political authority regarding matters of public concern” shielded by a
“qualified privilege” that has “existed in the law of Florida for many
generations and [has] served to provide broad protection for freedom of
speech.” Nodar v. Galbreath, 462 So. 2d 803, 810 (Fla. 1984) (holding a
father’s statements to a school board criticizing his son’s teacher was not
malicious as a matter of law).
submitted expert traffic studies that were extremely one-sided and
unprofessionally skewed to support its application to have the median cut. Such
allegations, without more, are not actionable. This is not a case in which
Sewell alleges Racetrac petitioned the government for the primary purpose of
intentionally or maliciously harming Sewell or others like her. See, e.g.,
Londono v. Turkey Creek, Inc., 609 So. 2d 14, 18 (Fla. 1992). For this
reason, Racetrac’s application to have the median cut, whether riddled with
misrepresentations or not, constituted “the statements of a citizen to a
political authority regarding matters of public concern” shielded by a
“qualified privilege” that has “existed in the law of Florida for many
generations and [has] served to provide broad protection for freedom of
speech.” Nodar v. Galbreath, 462 So. 2d 803, 810 (Fla. 1984) (holding a
father’s statements to a school board criticizing his son’s teacher was not
malicious as a matter of law).
At some point, Sewell’s main theory
may well run afoul of the body of law that grants immunity under the First
Amendment to those petitioning government, whether or not their motives are
self-seeking or even unethical. See IGEN Int’l, Inc. v. Roche Diagnostics
GmbH, 335 F.3d 303, 310 (4th Cir. 2003) (“The Noerr-Pennington doctrine
grants First Amendment immunity to those who engage in petitioning activity.”);
United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670 (1965); Eastern
R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961).
may well run afoul of the body of law that grants immunity under the First
Amendment to those petitioning government, whether or not their motives are
self-seeking or even unethical. See IGEN Int’l, Inc. v. Roche Diagnostics
GmbH, 335 F.3d 303, 310 (4th Cir. 2003) (“The Noerr-Pennington doctrine
grants First Amendment immunity to those who engage in petitioning activity.”);
United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670 (1965); Eastern
R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961).
As a practical matter, to recognize
Sewell’s main legal theory would mean, for example, that homeowners could be
sued for false statements “negligently” made as part of a petition for specific
traffic control or traffic calming devices like speed bumps or traffic circles
which make roadways safer for some users but potentially more dangerous for
others. When the risks of unintended consequences are fully weighed, this case
presents an instance where, in the words of Judge, and later Justice, Alan
Lawson, it would be “unwise for the judiciary to expand causes of action to
reach conduct clearly beyond the scope historically recognized by law.” Walters
v. Blankenship, 931 So. 2d 137, 145 (Fla. 5th DCA 2006) (Lawson, J.
dissenting).
Sewell’s main legal theory would mean, for example, that homeowners could be
sued for false statements “negligently” made as part of a petition for specific
traffic control or traffic calming devices like speed bumps or traffic circles
which make roadways safer for some users but potentially more dangerous for
others. When the risks of unintended consequences are fully weighed, this case
presents an instance where, in the words of Judge, and later Justice, Alan
Lawson, it would be “unwise for the judiciary to expand causes of action to
reach conduct clearly beyond the scope historically recognized by law.” Walters
v. Blankenship, 931 So. 2d 137, 145 (Fla. 5th DCA 2006) (Lawson, J.
dissenting).
The cases cited by Sewell do not
support her main legal theory that Racetrac’s petition to open the concrete
median in the roadway outside of its property rises to the level of a tort. In Whitt
v. Silverman, 788 So. 2d 210, 212 (Fla. 2001), the Florida Supreme Court
held that the owners of a gas station could be liable to pedestrians struck by
vehicles exiting the gas station whose views were unsafely and unreasonably
blocked by landscaping on the property. And in Thunderbird Drive-In Theatre,
Inc. v. Reed, 571 So. 2d 1341 (Fla. 4th DCA 1990), the Fourth District held
that a drive-in theater could be held liable for failing to hire off-duty
police to manage traffic buildup on the public road used to access its property
caused by starting multiple films at the same time. In Thunderbird, the
theater was on notice of the dangerous condition created on its property
because it had previously hired police for that purpose.
support her main legal theory that Racetrac’s petition to open the concrete
median in the roadway outside of its property rises to the level of a tort. In Whitt
v. Silverman, 788 So. 2d 210, 212 (Fla. 2001), the Florida Supreme Court
held that the owners of a gas station could be liable to pedestrians struck by
vehicles exiting the gas station whose views were unsafely and unreasonably
blocked by landscaping on the property. And in Thunderbird Drive-In Theatre,
Inc. v. Reed, 571 So. 2d 1341 (Fla. 4th DCA 1990), the Fourth District held
that a drive-in theater could be held liable for failing to hire off-duty
police to manage traffic buildup on the public road used to access its property
caused by starting multiple films at the same time. In Thunderbird, the
theater was on notice of the dangerous condition created on its property
because it had previously hired police for that purpose.
None of the cases cited by Sewell
found a property owner liable for making an application to a government entity
to effectuate a change in the roadway outside of his or her property. Instead,
each of those cases dealt with a property owner whose conduct on its own
property created dangers to persons on the adjacent rights of way.
found a property owner liable for making an application to a government entity
to effectuate a change in the roadway outside of his or her property. Instead,
each of those cases dealt with a property owner whose conduct on its own
property created dangers to persons on the adjacent rights of way.
In short, for the reasons stated
above, we hold that a person who petitions the government for a road
improvement outside of his or her property has no legal duty to guard against
the government making a decision that will create an allegedly unreasonably
dangerous road condition. Therefore, we find no legal error in the trial
court’s decision to dismiss that portion of the complaint.
above, we hold that a person who petitions the government for a road
improvement outside of his or her property has no legal duty to guard against
the government making a decision that will create an allegedly unreasonably
dangerous road condition. Therefore, we find no legal error in the trial
court’s decision to dismiss that portion of the complaint.
Sewell’s second theory of liability
concerns Racetrac’s duty to manage signs and pavement markings on its own
property to protect its customers and the public from the danger of cars
exiting the property by turning left and using the existing cut in the median
to go eastbound on Northeast 8th Street. The complaint alleges that Racetrac
knew or should have known that its conduct in this regard presented an
unreasonable danger. This theory is viable under the existing case law
recognized in Whitt, Thunderbird, and Napoli v. Buchbinder,
685 So. 2d 46, 47 (Fla. 4th DCA 1996) (holding that an owner can be liable if
negligent design of its parking lot and placement of a stop sign caused
accident with passing motorist). An owner can be liable for actions it takes or
fails to take on its own property that cause vehicles to exit in a manner that
the owner knew or should have known creates an unreasonable danger to vehicles
on the adjacent roadway. In this regard, the court erred in dismissing that
part of the complaint.
concerns Racetrac’s duty to manage signs and pavement markings on its own
property to protect its customers and the public from the danger of cars
exiting the property by turning left and using the existing cut in the median
to go eastbound on Northeast 8th Street. The complaint alleges that Racetrac
knew or should have known that its conduct in this regard presented an
unreasonable danger. This theory is viable under the existing case law
recognized in Whitt, Thunderbird, and Napoli v. Buchbinder,
685 So. 2d 46, 47 (Fla. 4th DCA 1996) (holding that an owner can be liable if
negligent design of its parking lot and placement of a stop sign caused
accident with passing motorist). An owner can be liable for actions it takes or
fails to take on its own property that cause vehicles to exit in a manner that
the owner knew or should have known creates an unreasonable danger to vehicles
on the adjacent roadway. In this regard, the court erred in dismissing that
part of the complaint.
Affirmed in part, reversed in part,
and remanded.
and remanded.
__________________
(ROTHENBERG, C.J., concurring in
part, dissenting in part.) Crystal Sewell (“Sewell”) appeals:
part, dissenting in part.) Crystal Sewell (“Sewell”) appeals:
(1) the dismissal of her negligence
action against Racetrac Petroleum, Inc. (“Racetrac”), a gas station located on
Northeast 8th Street in Homestead, Florida; (2) the denial of her motion to
plead punitive damages; and (3) the denial of her motion for spoliation
damages. I join the portion of the majority opinion affirming the denial of
Sewell’s motion to plead punitive damages, and motion for spoliation damages. I
also join the majority’s affirmance of the dismissal with prejudice of the
portions of Sewell’s negligence claim that are premised on Racetrac’s
application to the City of Homestead and/or Miami-Dade County (“the County”)
regarding the installation of an opening in the concrete median on Northeast
8th Street opposite the gas station. I do so because the majority correctly
determined that the decision whether to grant the request for the median
opening was made by the County, which owns, maintains, and is responsible for
all traffic control devices on public roadways within the County, and because
Racetrac owed Sewell no legal duty to protect her or the general public against
such road improvements, traffic devices, and road conditions approved and
maintained by the County. I, however, part ways with the majority regarding its
conclusion that Racetrac may be held liable for actions it failed to take to
warn public roadway users of the allegedly dangerous condition created by the
median opening, or Racetrac’s failure to take other corrective measures to
lessen the dangers created by the use of the median opening.
action against Racetrac Petroleum, Inc. (“Racetrac”), a gas station located on
Northeast 8th Street in Homestead, Florida; (2) the denial of her motion to
plead punitive damages; and (3) the denial of her motion for spoliation
damages. I join the portion of the majority opinion affirming the denial of
Sewell’s motion to plead punitive damages, and motion for spoliation damages. I
also join the majority’s affirmance of the dismissal with prejudice of the
portions of Sewell’s negligence claim that are premised on Racetrac’s
application to the City of Homestead and/or Miami-Dade County (“the County”)
regarding the installation of an opening in the concrete median on Northeast
8th Street opposite the gas station. I do so because the majority correctly
determined that the decision whether to grant the request for the median
opening was made by the County, which owns, maintains, and is responsible for
all traffic control devices on public roadways within the County, and because
Racetrac owed Sewell no legal duty to protect her or the general public against
such road improvements, traffic devices, and road conditions approved and
maintained by the County. I, however, part ways with the majority regarding its
conclusion that Racetrac may be held liable for actions it failed to take to
warn public roadway users of the allegedly dangerous condition created by the
median opening, or Racetrac’s failure to take other corrective measures to
lessen the dangers created by the use of the median opening.
Because I agree with the majority
opinion in all respects except for its reversal of the trial court’s order
dismissing Sewell’s negligence claim related to Racetrac’s failure to warn or
to take corrective measures to lessen the dangers allegedly created by the use
of the median opening, I will confine my dissent to this one area of
disagreement.
opinion in all respects except for its reversal of the trial court’s order
dismissing Sewell’s negligence claim related to Racetrac’s failure to warn or
to take corrective measures to lessen the dangers allegedly created by the use
of the median opening, I will confine my dissent to this one area of
disagreement.
BACKGROUND
Prior to purchasing the property in
question, Racetrac sought and obtained approval from the County for the
modification of the concrete median separating the eastbound and westbound
lanes of vehicular travel on Northeast 8th Street in front of the property
Racetrac was interested in purchasing. The modification provided for an opening
in the concrete median that would allow vehicles traveling east on Northeast
8th Street to turn left into the gas station and vehicles exiting the gas
station to turn left by passing through the opening and traveling east on
Northeast 8th Street.
question, Racetrac sought and obtained approval from the County for the
modification of the concrete median separating the eastbound and westbound
lanes of vehicular travel on Northeast 8th Street in front of the property
Racetrac was interested in purchasing. The modification provided for an opening
in the concrete median that would allow vehicles traveling east on Northeast
8th Street to turn left into the gas station and vehicles exiting the gas
station to turn left by passing through the opening and traveling east on
Northeast 8th Street.
Sewell, who was traveling in an
eastbound lane on Northeast 8th Street, alleges that a “phantom vehicle”
rapidly exited the gas station, crossed the two westbound lanes on Northeast
8th Street and, without stopping, passed through the opening in the median and
entered into her lane. Sewell, took evasive action, lost control of her
vehicle, and crashed into a palm tree. Although Sewell initially stated that
she had been travelling at 70 miles per hour (“mph”) in a 40 mph speed zone
because she was late for work, she subsequently changed her testimony and now
claims that she cannot remember if she was late for work or how fast she was
driving.
eastbound lane on Northeast 8th Street, alleges that a “phantom vehicle”
rapidly exited the gas station, crossed the two westbound lanes on Northeast
8th Street and, without stopping, passed through the opening in the median and
entered into her lane. Sewell, took evasive action, lost control of her
vehicle, and crashed into a palm tree. Although Sewell initially stated that
she had been travelling at 70 miles per hour (“mph”) in a 40 mph speed zone
because she was late for work, she subsequently changed her testimony and now
claims that she cannot remember if she was late for work or how fast she was
driving.
ANALYSIS
This dissent addresses the issue of
whether Racetrac, a commercial property owner, owed Sewell and the public at
large (as opposed to an invitee) a legal duty to warn and/or to take corrective
measures to lessen the dangers allegedly associated with the use of the opening
created in the County-owned and County-maintained median dividing the eastbound
and westbound lanes of Northeast 8th Street in front of Racetrac’s property. In
other words, does Racetrac, the owner of private property adjacent to a County
roadway, owe a legal duty to protect motorists traveling on the roadway in
front of its establishment? The majority contends that it does. But as will be
discussed below, no such duty existed at common law, the Florida Supreme Court
has not extended premises liability to non-invitees under the circumstances
presented here, and this Court should not be in the business of creating
exceptions to pre-existing law.
whether Racetrac, a commercial property owner, owed Sewell and the public at
large (as opposed to an invitee) a legal duty to warn and/or to take corrective
measures to lessen the dangers allegedly associated with the use of the opening
created in the County-owned and County-maintained median dividing the eastbound
and westbound lanes of Northeast 8th Street in front of Racetrac’s property. In
other words, does Racetrac, the owner of private property adjacent to a County
roadway, owe a legal duty to protect motorists traveling on the roadway in
front of its establishment? The majority contends that it does. But as will be
discussed below, no such duty existed at common law, the Florida Supreme Court
has not extended premises liability to non-invitees under the circumstances
presented here, and this Court should not be in the business of creating
exceptions to pre-existing law.
A.
Premises Liability Law in General
Premises Liability Law in General
The duties owed by a landowner to
those who come onto his property differ from the duties owed to those who do
not come on to his property. See Williams v. Davis, 974 So. 2d
1052, 1056 (Fla. 2007):
those who come onto his property differ from the duties owed to those who do
not come on to his property. See Williams v. Davis, 974 So. 2d
1052, 1056 (Fla. 2007):
Florida tort law has long recognized an entirely distinct
set of rules as to the duties owed by a landowner to those who come upon the
property, and the law has recognized limited, if any, duties owed by a
landowner to those who do not come upon the property.
set of rules as to the duties owed by a landowner to those who come upon the
property, and the law has recognized limited, if any, duties owed by a
landowner to those who do not come upon the property.
As to the duty owed to invitees, the
law is clear:
law is clear:
[A]
property owner or occupier owes two duties to an invitee: (1) the duty to use
reasonable care in maintaining the property in a reasonably safe condition,
and; (2) the duty to warn of latent or concealed dangers which are or should be
known to the owner and which are unknown to the invitee and cannot be
discovered through the exercise of due care.
property owner or occupier owes two duties to an invitee: (1) the duty to use
reasonable care in maintaining the property in a reasonably safe condition,
and; (2) the duty to warn of latent or concealed dangers which are or should be
known to the owner and which are unknown to the invitee and cannot be
discovered through the exercise of due care.
Grimes v. Family Dollar Stores of
Fla., Inc., 194 So. 3d 424, 427 (Fla. 3d DCA
2016); Denson v. SM-Planters Walk Apartments, 183 So. 3d 1048, 1050
(Fla. 1st DCA 2015); Tallent v. Pilot Travel Ctrs., LLC, 137 So. 3d 616,
617 (Fla. 2d DCA 2014). As will be discussed below, over time, the Florida
Supreme Court has extended the duty owed by a landowner to his invitees to
property off of the landowner’s premises where the landowner (or the possessor)
has exercised some measure of control over the property he does not own or when
he has impliedly encouraged his invitees to use the property of others in a
particular way.
Fla., Inc., 194 So. 3d 424, 427 (Fla. 3d DCA
2016); Denson v. SM-Planters Walk Apartments, 183 So. 3d 1048, 1050
(Fla. 1st DCA 2015); Tallent v. Pilot Travel Ctrs., LLC, 137 So. 3d 616,
617 (Fla. 2d DCA 2014). As will be discussed below, over time, the Florida
Supreme Court has extended the duty owed by a landowner to his invitees to
property off of the landowner’s premises where the landowner (or the possessor)
has exercised some measure of control over the property he does not own or when
he has impliedly encouraged his invitees to use the property of others in a
particular way.
Landowners and possessors may also
be held legally liable for injuries sustained by non-invitees off of the
premises under very limited circumstances. A landowner or possessor may be
subject to liability if he has permitted conditions on his land to
extend outside the land which he knew or should have known created an
unreasonable risk of harm to others not on his land.
be held legally liable for injuries sustained by non-invitees off of the
premises under very limited circumstances. A landowner or possessor may be
subject to liability if he has permitted conditions on his land to
extend outside the land which he knew or should have known created an
unreasonable risk of harm to others not on his land.
Neither of these circumstances or
exceptions to general premises liability law are present here. First, Sewell
was not an invitee. She was not on Racetrac’s property or on her way to or from
Racetrac’s property when she was injured. Thus, the cases involving invitees
injured on or near a landowner’s property do not apply to the instant case.
Second, the allegedly dangerous condition was the opening to the concrete
median located on the County’s roadway, not on Racetrac’s property. Thus, the
cases addressing liability for dangerous conditions on a landowner’s property
that extend outside the property also do not apply to the instant case. Because
neither the Legislature nor the Florida Supreme Court has imposed a legal duty
upon a landowner where the injured party was not an invitee or where the
dangerous condition did not originate on the premises and extend past
the premises, nor should we.
exceptions to general premises liability law are present here. First, Sewell
was not an invitee. She was not on Racetrac’s property or on her way to or from
Racetrac’s property when she was injured. Thus, the cases involving invitees
injured on or near a landowner’s property do not apply to the instant case.
Second, the allegedly dangerous condition was the opening to the concrete
median located on the County’s roadway, not on Racetrac’s property. Thus, the
cases addressing liability for dangerous conditions on a landowner’s property
that extend outside the property also do not apply to the instant case. Because
neither the Legislature nor the Florida Supreme Court has imposed a legal duty
upon a landowner where the injured party was not an invitee or where the
dangerous condition did not originate on the premises and extend past
the premises, nor should we.
B.
The law regarding a landowner’s duty to invitees
The law regarding a landowner’s duty to invitees
As previously stated, a landowner
owes a duty to invitees who come onto his property to maintain the premises in
a reasonably safe condition. Additionally, a landowner has a duty to warn
invitees of latent and concealed perils which are or should have been known to
the owner, and which were not known and could not have been known by an invitee
who exercises due care. See Hickory House v. Brown, 77 So. 2d
249, 252 (Fla. 1955).
owes a duty to invitees who come onto his property to maintain the premises in
a reasonably safe condition. Additionally, a landowner has a duty to warn
invitees of latent and concealed perils which are or should have been known to
the owner, and which were not known and could not have been known by an invitee
who exercises due care. See Hickory House v. Brown, 77 So. 2d
249, 252 (Fla. 1955).
The Fourth District Court of Appeal
was not the first Florida court to extend the duties owed to invitees on the
premises to invitees off of the premises. See Chateloin v. Flanigan’s
Enters. Inc., 423 So. 2d 1002 (Fla. 3d DCA 1982) (addressing whether to
extend liability to a tavern owner to a situation where a patron shot another
patron after leaving the tavern, but declining to do so in that case after
finding that the shooting which occurred several miles from the tavern and a
considerable time after the patrons had left the tavern, was too remote as to
both time and place). The Fourth District did, however, apply liability for
off-premises injuries to invitees in Holiday Inns, Inc. v. Shelburne,
576 So. 2d 322 (Fla. 4th DCA 1991), disapproved of on other grounds by Angrand
v. Key, 576 So. 2d 322 (Fla. 1995). In Shelburne, several patrons
who had been drinking at the bar, left the bar, and as they were heading
towards their respective vehicles, a fight broke out in an adjacent lot, three
of the patrons were shot, and one patron died from his wounds. Shelburne,
576 So. 2d at 324. Importantly, the Fourth District noted that the shooting
occurred only a few feet from the bar and only a few minutes after the patrons
had exited the bar, id. at 328; one of the injured patrons had been
directed by a bar employee to park on the adjacent lot where the shooting
occurred, id. at 324; and fights had occurred with some regularity at or
near the bar, id. at 328.
was not the first Florida court to extend the duties owed to invitees on the
premises to invitees off of the premises. See Chateloin v. Flanigan’s
Enters. Inc., 423 So. 2d 1002 (Fla. 3d DCA 1982) (addressing whether to
extend liability to a tavern owner to a situation where a patron shot another
patron after leaving the tavern, but declining to do so in that case after
finding that the shooting which occurred several miles from the tavern and a
considerable time after the patrons had left the tavern, was too remote as to
both time and place). The Fourth District did, however, apply liability for
off-premises injuries to invitees in Holiday Inns, Inc. v. Shelburne,
576 So. 2d 322 (Fla. 4th DCA 1991), disapproved of on other grounds by Angrand
v. Key, 576 So. 2d 322 (Fla. 1995). In Shelburne, several patrons
who had been drinking at the bar, left the bar, and as they were heading
towards their respective vehicles, a fight broke out in an adjacent lot, three
of the patrons were shot, and one patron died from his wounds. Shelburne,
576 So. 2d at 324. Importantly, the Fourth District noted that the shooting
occurred only a few feet from the bar and only a few minutes after the patrons
had exited the bar, id. at 328; one of the injured patrons had been
directed by a bar employee to park on the adjacent lot where the shooting
occurred, id. at 324; and fights had occurred with some regularity at or
near the bar, id. at 328.
In determining whether the owner of
the bar owed a duty of care to his invitees while the invitees were on the
adjacent lot, the Shelburne court considered: the extent of control over
the off-premises area exercised by the owner of the bar, the fact that the
bar’s employee had directed the bar’s invitees to park in the adjacent lot, the
economic benefit derived from the off-premises adjacent property, and the
foreseeability that an invitee could be injured while in the adjacent lot.
the bar owed a duty of care to his invitees while the invitees were on the
adjacent lot, the Shelburne court considered: the extent of control over
the off-premises area exercised by the owner of the bar, the fact that the
bar’s employee had directed the bar’s invitees to park in the adjacent lot, the
economic benefit derived from the off-premises adjacent property, and the
foreseeability that an invitee could be injured while in the adjacent lot.
Since Shelburne, however, the
standard for analyzing the duty owed by landowners to their invitees has
synthesized into a more workable standard: the foreseeable zone of risk
standard. For example, in Johnson v. Howard Mark Productions, Inc., 608
So. 2d 937, 938 (Fla. 2d DCA 1992), the Second District Court of Appeal applied
the foreseeable zone of risk standard when it reversed the trial court’s order,
which had granted summary judgment in favor of Howard Mark Productions, Inc.
(“HM Productions”) and found, as a matter of law, that HM Productions did not
owe a duty of care to protect its invitees on property adjacent to its
property. The amended complaint alleged the following. HM Productions operated
a teenage nightclub. Johnson, an invitee, was struck and killed by a motorist
while attempting to cross U.S. Highway 41 to patronize HM Productions’ teenage
nightclub. The teenage nightclub’s parking was “woefully insufficient” and, as
a result, teenagers (invitees), including Johnson, parked on the opposite side
of U.S. 41 and walked across the highway in the dark to patronize HM
Productions’ teenage nightclub. This inadequate parking was a dangerous
conditions which HM Productions knew or should have known existed. Id.
at 938.
standard for analyzing the duty owed by landowners to their invitees has
synthesized into a more workable standard: the foreseeable zone of risk
standard. For example, in Johnson v. Howard Mark Productions, Inc., 608
So. 2d 937, 938 (Fla. 2d DCA 1992), the Second District Court of Appeal applied
the foreseeable zone of risk standard when it reversed the trial court’s order,
which had granted summary judgment in favor of Howard Mark Productions, Inc.
(“HM Productions”) and found, as a matter of law, that HM Productions did not
owe a duty of care to protect its invitees on property adjacent to its
property. The amended complaint alleged the following. HM Productions operated
a teenage nightclub. Johnson, an invitee, was struck and killed by a motorist
while attempting to cross U.S. Highway 41 to patronize HM Productions’ teenage
nightclub. The teenage nightclub’s parking was “woefully insufficient” and, as
a result, teenagers (invitees), including Johnson, parked on the opposite side
of U.S. 41 and walked across the highway in the dark to patronize HM
Productions’ teenage nightclub. This inadequate parking was a dangerous
conditions which HM Productions knew or should have known existed. Id.
at 938.
The Second District Court of Appeal
concluded that under the common law, landowners have the duty to protect their
invitees; this duty extends to cover a “wide spectrum of circumstances”; and
this duty to protect invitees may extend to “nearby property if the landowner’s
foreseeable zone of risk extends beyond the boundaries of its property.” Id.
at 938. The Second District, therefore, reversed the summary judgment entered
in HM Productions’ favor and remanded for further proceedings.
concluded that under the common law, landowners have the duty to protect their
invitees; this duty extends to cover a “wide spectrum of circumstances”; and
this duty to protect invitees may extend to “nearby property if the landowner’s
foreseeable zone of risk extends beyond the boundaries of its property.” Id.
at 938. The Second District, therefore, reversed the summary judgment entered
in HM Productions’ favor and remanded for further proceedings.
The Fourth District Court of Appeal
applied the same foreseeable zone of risk standard in two similar cases: Gunlock
v. Gill Hotels Co., 622 So. 2d 163, 164 (Fla. 4th DCA 1993), and Almarante
v. Art Institute of Fort Lauderdale, Inc., 921 So. 2d 703, 705 (Fla. 4th
DCA 2006). In Gunlock, the Fourth District Court of Appeal reversed a
dismissal which had been granted for failure to state a cause of action. In Gunlock,
the hotel placed its buildings on both sides of highway A1A. The decedent was
struck and killed by a motorist as he crossed from the hotel’s bar on the east
side of A1A to his room located on the west side of A1A. The Fourth District
concluded that the hotel “owed a duty to exercise reasonable care for the
safety of its invitees in passing over the highway to and from appellee’s hotel
facilities.” Gunlock, 622 So. 2d at 164. Similarly, in Almarante,
the Fourth District concluded that the defendant, a private school, owed a duty
of care to its students which could extend beyond the physical boundaries of
the school’s property if the defendant’s conduct foreseeably created a risk of
harm. Almarante, 921 So. 2d at 705.
applied the same foreseeable zone of risk standard in two similar cases: Gunlock
v. Gill Hotels Co., 622 So. 2d 163, 164 (Fla. 4th DCA 1993), and Almarante
v. Art Institute of Fort Lauderdale, Inc., 921 So. 2d 703, 705 (Fla. 4th
DCA 2006). In Gunlock, the Fourth District Court of Appeal reversed a
dismissal which had been granted for failure to state a cause of action. In Gunlock,
the hotel placed its buildings on both sides of highway A1A. The decedent was
struck and killed by a motorist as he crossed from the hotel’s bar on the east
side of A1A to his room located on the west side of A1A. The Fourth District
concluded that the hotel “owed a duty to exercise reasonable care for the
safety of its invitees in passing over the highway to and from appellee’s hotel
facilities.” Gunlock, 622 So. 2d at 164. Similarly, in Almarante,
the Fourth District concluded that the defendant, a private school, owed a duty
of care to its students which could extend beyond the physical boundaries of
the school’s property if the defendant’s conduct foreseeably created a risk of
harm. Almarante, 921 So. 2d at 705.
As these cases reflect, in Florida,
a landowner owes its invitees a duty of care, which may extend beyond the
landowner’s premises if the landowner has created a dangerous condition or a
foreseeable zone of risk to its invitees that extends beyond the
landowner’s premises. But, the common thread in these cases is that the duty
owed was limited to the landowner’s invitees.
a landowner owes its invitees a duty of care, which may extend beyond the
landowner’s premises if the landowner has created a dangerous condition or a
foreseeable zone of risk to its invitees that extends beyond the
landowner’s premises. But, the common thread in these cases is that the duty
owed was limited to the landowner’s invitees.
C.
Landowner liability to non-invitees
Landowner liability to non-invitees
A landowner may also be subject to
liability if it has permitted conditions on its land to extend outside
the land which it knew or should have known created an unreasonable risk of
harm to others not on its land.
liability if it has permitted conditions on its land to extend outside
the land which it knew or should have known created an unreasonable risk of
harm to others not on its land.
In Hardin v. Jacksonville
Terminal Co., 175 So. 226 (Fla. 1937), the issue before the Florida Supreme
Court was whether Jacksonville Terminal Co. (“the defendant”) could be held
liable to a pedestrian (Hardin) who was injured when he slipped and fell on a
slick and slippery substance on the pavement he was walking on even though the
pavement was not on the defendant’s property nor owned, controlled, or
maintained by the defendant. Apparently, the pavement had become slippery as a
result of “liquids” running off of a retaining wall on the defendant’s property
and onto the street, which over time became slippery and unsafe. Id. at
226-27. The Florida Supreme Court concluded that an owner or the possessor of
land may be subject to liability for bodily injuries caused to others
off-premises by an artificial condition created thereon, such as changes caused
by excavations, structures, and fillings. Id. at 227. However, since
there were no allegations or facts to suggest that the defendant in this case
had permitted a condition to occur on his land which he knew or should have
known created an unreasonable risk of harm to others outside his land, the
Florida Supreme Court held that the trial court correctly entered judgment in
the defendant’s favor. Id. at 228.
Terminal Co., 175 So. 226 (Fla. 1937), the issue before the Florida Supreme
Court was whether Jacksonville Terminal Co. (“the defendant”) could be held
liable to a pedestrian (Hardin) who was injured when he slipped and fell on a
slick and slippery substance on the pavement he was walking on even though the
pavement was not on the defendant’s property nor owned, controlled, or
maintained by the defendant. Apparently, the pavement had become slippery as a
result of “liquids” running off of a retaining wall on the defendant’s property
and onto the street, which over time became slippery and unsafe. Id. at
226-27. The Florida Supreme Court concluded that an owner or the possessor of
land may be subject to liability for bodily injuries caused to others
off-premises by an artificial condition created thereon, such as changes caused
by excavations, structures, and fillings. Id. at 227. However, since
there were no allegations or facts to suggest that the defendant in this case
had permitted a condition to occur on his land which he knew or should have
known created an unreasonable risk of harm to others outside his land, the
Florida Supreme Court held that the trial court correctly entered judgment in
the defendant’s favor. Id. at 228.
Although the conditions addressed in
Hardin were artificial conditions, in 2001 the Florida Supreme Court
extended the duty of care to commercial landowners who allow “natural”
conditions, such as foliage and landscaping on their premises, to obstruct the
view of motorists or pedestrians on the adjacent sidewalks and roadways. See
Whitt v. Silverman, 788 So. 2d 210, 212 (Fla. 2001). Instead of applying
the “agrarian rule,” previously relied on in prior cases and which provided
that a landowner owed no duty to persons who are not on the landowner’s
property and who were therefore not responsible for any harm caused to them by
natural conditions on the land, id. at 213, the Whitt Court
applied the “foreseeable zone of risk” standard the Court had adopted in McCain
v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992). Whitt, at 222.
Applying the foreseeable zone of risk standard, the Florida Supreme Court
concluded that it was undisputed that the landowner had exclusive control over
the foliage and landscaping on the business premises; it would not have been
unduly burdensome for the landowner to have maintained the foliage to allow for
safe ingress and egress from the property; and the failure to do so created a
foreseeable zone of risk posing a general threat of harm toward patrons of the
business as well as to the pedestrians and motorists using the abutting streets
and sidewalks. Thus, the landowner had a duty of care. Id. at 222.
Hardin were artificial conditions, in 2001 the Florida Supreme Court
extended the duty of care to commercial landowners who allow “natural”
conditions, such as foliage and landscaping on their premises, to obstruct the
view of motorists or pedestrians on the adjacent sidewalks and roadways. See
Whitt v. Silverman, 788 So. 2d 210, 212 (Fla. 2001). Instead of applying
the “agrarian rule,” previously relied on in prior cases and which provided
that a landowner owed no duty to persons who are not on the landowner’s
property and who were therefore not responsible for any harm caused to them by
natural conditions on the land, id. at 213, the Whitt Court
applied the “foreseeable zone of risk” standard the Court had adopted in McCain
v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992). Whitt, at 222.
Applying the foreseeable zone of risk standard, the Florida Supreme Court
concluded that it was undisputed that the landowner had exclusive control over
the foliage and landscaping on the business premises; it would not have been
unduly burdensome for the landowner to have maintained the foliage to allow for
safe ingress and egress from the property; and the failure to do so created a
foreseeable zone of risk posing a general threat of harm toward patrons of the
business as well as to the pedestrians and motorists using the abutting streets
and sidewalks. Thus, the landowner had a duty of care. Id. at 222.
However, in Williams v. Davis,
974 So. 2d 1052, 1054 (Fla. 2007), the Florida Supreme Court declined to
further extend the McCain foreseeable zone of risk standard to
residential landowners who permit conditions on their land that negatively
impact motorists or pedestrians who are off-premises unless those conditions
actually extend into the public right-of-way so as to create a foreseeable
hazard to traffic. For example, when a limb or branch of a tree extends past
the owner’s property and obstructs a traffic control sign, a landowner may be
tortiously liable. Id. at 1059. Specifically, the Florida Supreme Court
stated:
974 So. 2d 1052, 1054 (Fla. 2007), the Florida Supreme Court declined to
further extend the McCain foreseeable zone of risk standard to
residential landowners who permit conditions on their land that negatively
impact motorists or pedestrians who are off-premises unless those conditions
actually extend into the public right-of-way so as to create a foreseeable
hazard to traffic. For example, when a limb or branch of a tree extends past
the owner’s property and obstructs a traffic control sign, a landowner may be
tortiously liable. Id. at 1059. Specifically, the Florida Supreme Court
stated:
We
conclude that these prior decisions can best be reconciled by a recognition
that ordinarily a private residential landowner should be held accountable
under the zone of risk analysis principles of McCain 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.
conclude that these prior decisions can best be reconciled by a recognition
that ordinarily a private residential landowner should be held accountable
under the zone of risk analysis principles of McCain 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.
Id. at 1062.
In reaching this conclusion, the
Court noted that “motorists in Florida have a continuing duty to use reasonable
care on the roadways to avoid accidents and injury to themselves and others,” id.
at 1063, and this “continuing duty of motorists is not affected by our holding
today.” Id.; see also Birge v. Charron, 107 So. 3d 350,
361 n.19 (Fla. 2012) (holding that “drivers on Florida’s roadways owe a duty of
reasonable care not only to those driving in front of them, but also to those
who are following, and all other individuals within the foreseeable zone of
danger”); Bellere v. Madsen, 114 So. 2d 619, 621 (Fla. 1959) (concluding
that “the driver of an automobile — a dangerous instrumentality — is charged
with the responsibility of having his vehicle under control at all times,
commensurate with the circumstances and the locale, and to maintain a sharp and
attentive lookout in order to keep himself prepared to meet the exigencies of
an emergency within reason and consistent with reasonable care and caution)
(internal quotation omitted); Wallace v. Nat’l Fisheries, Inc., 768 So.
2d 17, 19 (Fla. 3d DCA 2000) (drivers have the duty to drive carefully and to
avoid hitting other drivers).
Court noted that “motorists in Florida have a continuing duty to use reasonable
care on the roadways to avoid accidents and injury to themselves and others,” id.
at 1063, and this “continuing duty of motorists is not affected by our holding
today.” Id.; see also Birge v. Charron, 107 So. 3d 350,
361 n.19 (Fla. 2012) (holding that “drivers on Florida’s roadways owe a duty of
reasonable care not only to those driving in front of them, but also to those
who are following, and all other individuals within the foreseeable zone of
danger”); Bellere v. Madsen, 114 So. 2d 619, 621 (Fla. 1959) (concluding
that “the driver of an automobile — a dangerous instrumentality — is charged
with the responsibility of having his vehicle under control at all times,
commensurate with the circumstances and the locale, and to maintain a sharp and
attentive lookout in order to keep himself prepared to meet the exigencies of
an emergency within reason and consistent with reasonable care and caution)
(internal quotation omitted); Wallace v. Nat’l Fisheries, Inc., 768 So.
2d 17, 19 (Fla. 3d DCA 2000) (drivers have the duty to drive carefully and to
avoid hitting other drivers).
This Court has consistently applied
these principles. In Garcia v. City of Hialeah, 550 So. 2d 1158 (Fla. 3d
DCA 1989), the plaintiff was injured as he exited a gas station and struck a
vehicle on Okeechobee Road. The plaintiff claimed that his visibility was obscured
by shrubbery. Id. at 1159. This Court noted that in those cases in which
no invitee duty is involved, a “chance motorist” is injured on a public roadway
while passing a landowner’s property, and the accident is alleged to have been
caused by shrubbery growing high but remaining solely on the landowner’s
property, the landowner is not liable for the resulting damages. Id. at
1159 n.1. Further, in Silver Palm Properties, Inc. v. Sullivan, 541 So.
2d 624, 624 (Fla. 3d DCA 1989), this Court also held that a landowner does not
have a duty to retard the subterranean root growth of trees on his property
which may extend beneath an adjacent public right-of-way. This Court concluded
that because the County, not Silver Palm Properties, owned and maintained the
roadway shoulder and surface in the area of the accident, and Silver Palm
Properties had no right to alter or repair the surface of the roadway, and it
had no duty to undertake root trenching or tree topping to retard subterranean
root growth. Silver Palm, 941 So. 2d at 627.
these principles. In Garcia v. City of Hialeah, 550 So. 2d 1158 (Fla. 3d
DCA 1989), the plaintiff was injured as he exited a gas station and struck a
vehicle on Okeechobee Road. The plaintiff claimed that his visibility was obscured
by shrubbery. Id. at 1159. This Court noted that in those cases in which
no invitee duty is involved, a “chance motorist” is injured on a public roadway
while passing a landowner’s property, and the accident is alleged to have been
caused by shrubbery growing high but remaining solely on the landowner’s
property, the landowner is not liable for the resulting damages. Id. at
1159 n.1. Further, in Silver Palm Properties, Inc. v. Sullivan, 541 So.
2d 624, 624 (Fla. 3d DCA 1989), this Court also held that a landowner does not
have a duty to retard the subterranean root growth of trees on his property
which may extend beneath an adjacent public right-of-way. This Court concluded
that because the County, not Silver Palm Properties, owned and maintained the
roadway shoulder and surface in the area of the accident, and Silver Palm
Properties had no right to alter or repair the surface of the roadway, and it
had no duty to undertake root trenching or tree topping to retard subterranean
root growth. Silver Palm, 941 So. 2d at 627.
Similarly, in Ruiz v. Taracomo
Townhomes Condominium Ass’n, 525 So. 2d 445, 446 (Fla. 3d DCA 1988), this
Court affirmed the trial court’s order granting summary judgment in favor of
the Association landowner. Id. In that case, the plaintiff, who was
driving on a street adjacent to the Association’s property, was struck by a
“phantom” motorist exiting the driveway to the Association. Id. This
Court held that because it was undisputed that the “phantom” vehicle had an
unobstructed view of the roadway where the plaintiff was driving, the
Association had no liability. Id.
Townhomes Condominium Ass’n, 525 So. 2d 445, 446 (Fla. 3d DCA 1988), this
Court affirmed the trial court’s order granting summary judgment in favor of
the Association landowner. Id. In that case, the plaintiff, who was
driving on a street adjacent to the Association’s property, was struck by a
“phantom” motorist exiting the driveway to the Association. Id. This
Court held that because it was undisputed that the “phantom” vehicle had an
unobstructed view of the roadway where the plaintiff was driving, the
Association had no liability. Id.
D.
Application of the case law to the instant case
Application of the case law to the instant case
The law in Florida is clear.
Landowners owe their invitees a duty to use due care to maintain the
premises in a reasonably safe condition and to protect them from foreseeable
harm. Williams, 974 So. 2d at 1057 n.3 (citing Markowitz v. Helen
Homes of Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002)). This duty may
extend off the landowner’s premises if he has exercised some measure of control
over the property he does not own or when he has impliedly encouraged his
invitees to use the property of others.
Landowners owe their invitees a duty to use due care to maintain the
premises in a reasonably safe condition and to protect them from foreseeable
harm. Williams, 974 So. 2d at 1057 n.3 (citing Markowitz v. Helen
Homes of Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002)). This duty may
extend off the landowner’s premises if he has exercised some measure of control
over the property he does not own or when he has impliedly encouraged his
invitees to use the property of others.
The duties owed by a landowner “to
those who come upon the property” differ from “those who do not come on the
property.” Williams, 974 So. 2d at 1056. A landowner may be subject to
liability if he permits either artificial or natural conditions on his land to
extend outside his premises which he knew or should have known created an
unreasonable risk of harm to others not on his premises, commonly referred to
as a foreseeable zone of risk.
those who come upon the property” differ from “those who do not come on the
property.” Williams, 974 So. 2d at 1056. A landowner may be subject to
liability if he permits either artificial or natural conditions on his land to
extend outside his premises which he knew or should have known created an
unreasonable risk of harm to others not on his premises, commonly referred to
as a foreseeable zone of risk.
Neither of those scenarios are
present in this case. The plaintiff in the instant case, Sewell, was not an
invitee. She was a motorist driving on the public right-of-way adjacent to the
defendant Racetrac’s property. She was actually driving three lanes away from
Racetrac’s property when she allegedly swerved to avoid another motorist who
she claims suddenly exited Racetrac’s property, crossed two lanes of travel,
and entered Sewell’s lane of travel on the opposite side of the street. The
break or cut in the concrete median that separates the eastbound and westbound
lanes on that public right-of-way, which allowed the “phantom” motorist to
cross the roadway at that point, was not owned or maintained by Racetrac or an
extension of Racetrac’s property, and Racetrac had no control over the median
cut or any other traffic device on the public right-of-way. Nothing on
Racetrac’s property obstructed the view of its invitees or the public at large.
This accident occurred either because an invitee of the gas station failed to
yield the right-of-way or use due caution when exiting Racetrac’s property, or
because Sewell was driving too fast or was not herself using due caution as she
approached the median cut.
present in this case. The plaintiff in the instant case, Sewell, was not an
invitee. She was a motorist driving on the public right-of-way adjacent to the
defendant Racetrac’s property. She was actually driving three lanes away from
Racetrac’s property when she allegedly swerved to avoid another motorist who
she claims suddenly exited Racetrac’s property, crossed two lanes of travel,
and entered Sewell’s lane of travel on the opposite side of the street. The
break or cut in the concrete median that separates the eastbound and westbound
lanes on that public right-of-way, which allowed the “phantom” motorist to
cross the roadway at that point, was not owned or maintained by Racetrac or an
extension of Racetrac’s property, and Racetrac had no control over the median
cut or any other traffic device on the public right-of-way. Nothing on
Racetrac’s property obstructed the view of its invitees or the public at large.
This accident occurred either because an invitee of the gas station failed to
yield the right-of-way or use due caution when exiting Racetrac’s property, or
because Sewell was driving too fast or was not herself using due caution as she
approached the median cut.
There is no case cited by Sewell or
in these opinions, and I have not found such a case, where liability has been
extended to a landowner for a non-invitee who was injured where the allegedly
dangerous condition or foreseeable zone of risk did not exist on the
premises and then extend outside the premises and into the public right-of-way.
Even Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So. 2d 1341 (Fla.
4th DCA 1990), relied on by Sewell and the concurring, in part, and dissenting,
in part opinion offered by my colleague, does not extend the duty under such a
scenario. Thunderbird’s negligence allegedly resulted from the design and
maintenance of the entrance to its theatre, which caused its invitees, who
were waiting to enter the theatre’s premises, to back up onto Sunrise Boulevard
and create a dangerous condition on the roadway. Id. at 1342-43. Thus,
the dangerous condition was caused by a condition (the design and maintenance
of Thunderbird’s entrance) on Thunderbird’s premises which extended
onto the roadway. In the instant case, there is no claim that the design or
maintenance of Racetrac’s entrance/exit was faulty or that anything on its
premises obstructed the visibility of any motorist or pedestrian entering or
exiting its property or traveling on an adjacent sidewalk or roadway.
in these opinions, and I have not found such a case, where liability has been
extended to a landowner for a non-invitee who was injured where the allegedly
dangerous condition or foreseeable zone of risk did not exist on the
premises and then extend outside the premises and into the public right-of-way.
Even Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So. 2d 1341 (Fla.
4th DCA 1990), relied on by Sewell and the concurring, in part, and dissenting,
in part opinion offered by my colleague, does not extend the duty under such a
scenario. Thunderbird’s negligence allegedly resulted from the design and
maintenance of the entrance to its theatre, which caused its invitees, who
were waiting to enter the theatre’s premises, to back up onto Sunrise Boulevard
and create a dangerous condition on the roadway. Id. at 1342-43. Thus,
the dangerous condition was caused by a condition (the design and maintenance
of Thunderbird’s entrance) on Thunderbird’s premises which extended
onto the roadway. In the instant case, there is no claim that the design or
maintenance of Racetrac’s entrance/exit was faulty or that anything on its
premises obstructed the visibility of any motorist or pedestrian entering or
exiting its property or traveling on an adjacent sidewalk or roadway.
Although the “foreseeable zone of
risk” standard is the standard to be applied in premises liability cases, that
standard is subject to prescribed premises liability jurisprudence. To hold
businesses liable for traffic conditions resulting from traffic control devices
owned, maintained, and controlled by a county, a municipality, or the state
would create a new liability not yet imposed in this state. Creation of new
duties and responsibilities is a legislative function, not a judicial function.
To extend liability as Sewell and the majority invite us to do, would make all
commercial landowners the insurers of all invitees who fail to obey traffic
laws when entering or exiting the premises onto the public right-of-way and the
insurers of all non-invitees who are injured when struck by an exiting patron,
where neither the patron nor the passing motorist had an obstructed view.
risk” standard is the standard to be applied in premises liability cases, that
standard is subject to prescribed premises liability jurisprudence. To hold
businesses liable for traffic conditions resulting from traffic control devices
owned, maintained, and controlled by a county, a municipality, or the state
would create a new liability not yet imposed in this state. Creation of new
duties and responsibilities is a legislative function, not a judicial function.
To extend liability as Sewell and the majority invite us to do, would make all
commercial landowners the insurers of all invitees who fail to obey traffic
laws when entering or exiting the premises onto the public right-of-way and the
insurers of all non-invitees who are injured when struck by an exiting patron,
where neither the patron nor the passing motorist had an obstructed view.
Additionally, business owners do not
have a duty to warn their invitees to use caution and to yield the right-of-way
when exiting the business owner’s premises. These duties have already been
imposed upon all motorists by law. Racetrac also had no authority to prohibit
its invitees from making a lawful exit onto Northeast 8th Street and using the
opening in the median to make a left turn on Northeast 8th Street in order to
travel east on Northeast 8th Street, because the median opening was created and
approved by the County for that very purpose. Thus, Sewell’s negligence claim,
which was premised on Racetrac’s duty to warn or to take corrective measures on
its own property to lessen the danger posed by an invitee who fails to use
proper caution when exiting its premises, was properly dismissed by the trial
court.
have a duty to warn their invitees to use caution and to yield the right-of-way
when exiting the business owner’s premises. These duties have already been
imposed upon all motorists by law. Racetrac also had no authority to prohibit
its invitees from making a lawful exit onto Northeast 8th Street and using the
opening in the median to make a left turn on Northeast 8th Street in order to
travel east on Northeast 8th Street, because the median opening was created and
approved by the County for that very purpose. Thus, Sewell’s negligence claim,
which was premised on Racetrac’s duty to warn or to take corrective measures on
its own property to lessen the danger posed by an invitee who fails to use
proper caution when exiting its premises, was properly dismissed by the trial
court.
CONCLUSION
For the reasons expressed herein, I
respectfully disagree with, and therefore dissent from, the panel conclusion
reversing that portion of the trial court’s order dismissing the portion of
Sewell’s negligence action against Racetrac that was founded on the theory that
Racetrac had a duty to warn or to take other corrective action to lessen the
dangers allegedly created by the use of the median opening on the roadway
adjacent to Racetrac’s premises, but which was entirely owned, maintained, and
controlled by the County.
respectfully disagree with, and therefore dissent from, the panel conclusion
reversing that portion of the trial court’s order dismissing the portion of
Sewell’s negligence action against Racetrac that was founded on the theory that
Racetrac had a duty to warn or to take other corrective action to lessen the
dangers allegedly created by the use of the median opening on the roadway
adjacent to Racetrac’s premises, but which was entirely owned, maintained, and
controlled by the County.
__________________
(EMAS, J., concurring in part and
dissenting in part.)
dissenting in part.)
INTRODUCTION
Appellant Crystal Sewell appealed
three orders of the trial court: 1) the denial of her motion to plead punitive
damages; 2) the denial of her motion to seek damages for spoliation; and 3) the
dismissal with prejudice of her one-count negligence action against Racetrac.
three orders of the trial court: 1) the denial of her motion to plead punitive
damages; 2) the denial of her motion to seek damages for spoliation; and 3) the
dismissal with prejudice of her one-count negligence action against Racetrac.
The majority affirmed the first two
trial court orders described above, and I concur in that portion of the
majority opinion. As to the trial court’s dismissal of Sewell’s negligence
action, the majority affirmed in part and reversed in part. The majority held
that the trial court erred in dismissing Sewell’s negligence claim insofar as
the claim was premised upon Racetrac’s duty to manage signage and pavement
markings on its own property. Notwithstanding this, the majority also held that
Sewell may not seek to establish a negligence claim against Racetrac on her
“main theory of liability”: that Racetrac was negligent “for making an
application to a government entity to effectuate a change in the roadway
outside of [Racetrac’s] property” (Maj. op. at *9).
trial court orders described above, and I concur in that portion of the
majority opinion. As to the trial court’s dismissal of Sewell’s negligence
action, the majority affirmed in part and reversed in part. The majority held
that the trial court erred in dismissing Sewell’s negligence claim insofar as
the claim was premised upon Racetrac’s duty to manage signage and pavement
markings on its own property. Notwithstanding this, the majority also held that
Sewell may not seek to establish a negligence claim against Racetrac on her
“main theory of liability”: that Racetrac was negligent “for making an
application to a government entity to effectuate a change in the roadway
outside of [Racetrac’s] property” (Maj. op. at *9).
I agree with the majority that the
trial court erred in dismissing Sewell’s negligence claim with regard to
Racetrac’s duty to manage signage and pavement markings on its own property.
However, I dissent from the majority’s holding that Sewell cannot allege and
seek to prove a claim of negligence on the basis of Racetrac’s actions with
regard to the roadway changes.
trial court erred in dismissing Sewell’s negligence claim with regard to
Racetrac’s duty to manage signage and pavement markings on its own property.
However, I dissent from the majority’s holding that Sewell cannot allege and
seek to prove a claim of negligence on the basis of Racetrac’s actions with
regard to the roadway changes.
The operative complaint alleged a
single count for negligence against Racetrac. Nevertheless, the majority parses
out individual factual allegations contained within that single count, and
determines that, as a matter of law, the allegations surrounding Racetrac’s
actions in seeking, procuring and installing the median cut cannot be properly
pleaded or relied upon by Sewell for its negligence claim against Racetrac. It
is this determination by the majority with which I take issue and from which I
dissent. I write to further explain my reasoning.
single count for negligence against Racetrac. Nevertheless, the majority parses
out individual factual allegations contained within that single count, and
determines that, as a matter of law, the allegations surrounding Racetrac’s
actions in seeking, procuring and installing the median cut cannot be properly
pleaded or relied upon by Sewell for its negligence claim against Racetrac. It
is this determination by the majority with which I take issue and from which I
dissent. I write to further explain my reasoning.
THE MAJORITY’S VIEW: THE MEDIAN CUT ALLEGATIONS SET FORTH A
SEPARATE BUT IMPROPER THEORY OF LIABILITY
SEPARATE BUT IMPROPER THEORY OF LIABILITY
The majority determined that, while
Sewell’s complaint set forth a valid claim against Racetrac for negligence, the
allegations regarding Racetrac’s actions in seeking, obtaining approval for,
and installing the median cut (the “Median Cut Allegations”) cannot form a
separate theory of liability for negligence. The majority opinion misapprehends
the nature and purpose of these allegations. The Median Cut Allegations do not
constitute an alternative theory of liability; rather, they serve to
demonstrate that Racetrac knew of the dangerous nature of the condition it
created by its own conduct and actions, and was aware of the foreseeable zone
of risk this condition would pose to others. These allegations are relevant to,
inter alia, the question of foreseeability and Racetrac’s knowledge of the
condition and its dangerous nature, which are inextricably intertwined with the
determination of the existence and scope of the legal duty owed, and breached,
by Racetrac.2 I would reverse the dismissal order
in its entirety, and therefore respectfully dissent from the majority opinion
to the extent that it affirms a portion of the trial court’s order of
dismissal.
Sewell’s complaint set forth a valid claim against Racetrac for negligence, the
allegations regarding Racetrac’s actions in seeking, obtaining approval for,
and installing the median cut (the “Median Cut Allegations”) cannot form a
separate theory of liability for negligence. The majority opinion misapprehends
the nature and purpose of these allegations. The Median Cut Allegations do not
constitute an alternative theory of liability; rather, they serve to
demonstrate that Racetrac knew of the dangerous nature of the condition it
created by its own conduct and actions, and was aware of the foreseeable zone
of risk this condition would pose to others. These allegations are relevant to,
inter alia, the question of foreseeability and Racetrac’s knowledge of the
condition and its dangerous nature, which are inextricably intertwined with the
determination of the existence and scope of the legal duty owed, and breached,
by Racetrac.2 I would reverse the dismissal order
in its entirety, and therefore respectfully dissent from the majority opinion
to the extent that it affirms a portion of the trial court’s order of
dismissal.
RELEVANT PROPOSITIONS OF LAW
The following propositions of law
are applicable to this discussion:
are applicable to this discussion:
The duty element of negligence
centers on whether the defendant’s conduct foreseeably created a “zone of risk”
that posed a general threat of harm to others. McCain v. Fla. Power Corp.,
593 So. 2d 500, 502 (Fla. 1992). In McCain, the Florida Supreme Court
recognized that, in Florida, “a legal duty will arise whenever a human endeavor
creates a generalized and foreseeable risk of harming others.” Id. The McCain
Court noted that one who creates a risk must exercise prudent foresight when
others may be injured, and “this requirement of reasonable, general foresight
is the core of the duty element.” Id. at 503. “The trial courts cannot
find a lack of duty if a foreseeable zone of risk more likely than not was
created by the defendant.” Id.
centers on whether the defendant’s conduct foreseeably created a “zone of risk”
that posed a general threat of harm to others. McCain v. Fla. Power Corp.,
593 So. 2d 500, 502 (Fla. 1992). In McCain, the Florida Supreme Court
recognized that, in Florida, “a legal duty will arise whenever a human endeavor
creates a generalized and foreseeable risk of harming others.” Id. The McCain
Court noted that one who creates a risk must exercise prudent foresight when
others may be injured, and “this requirement of reasonable, general foresight
is the core of the duty element.” Id. at 503. “The trial courts cannot
find a lack of duty if a foreseeable zone of risk more likely than not was
created by the defendant.” Id.
If a landowner creates a condition
that he knows or should know is dangerous, a duty is imposed by which that
landowner must act either to lessen the danger, or to warn the public of that
danger. As the Florida Supreme Court has recognized and reaffirmed: “Where a
defendant’s conduct creates a foreseeable zone of risk, the law
generally will recognize a duty placed upon defendant either to lessen the risk
or see that sufficient precautions are taken to protect others from the harm
that the risk poses.” McCain, 593 So. 2d at 503 (quoting Kaisner v.
Kolb, 543 So. 2d 732, 735 (Fla. 1989)).
that he knows or should know is dangerous, a duty is imposed by which that
landowner must act either to lessen the danger, or to warn the public of that
danger. As the Florida Supreme Court has recognized and reaffirmed: “Where a
defendant’s conduct creates a foreseeable zone of risk, the law
generally will recognize a duty placed upon defendant either to lessen the risk
or see that sufficient precautions are taken to protect others from the harm
that the risk poses.” McCain, 593 So. 2d at 503 (quoting Kaisner v.
Kolb, 543 So. 2d 732, 735 (Fla. 1989)).
The duty of care owed by a landowner
is commensurate with the foreseeable zone of risk created by the actions and
conduct of that landowner. Given that the property at issue is a gas station,
we look to cases that discuss this concept in the context of a commercial
landowner.3
is commensurate with the foreseeable zone of risk created by the actions and
conduct of that landowner. Given that the property at issue is a gas station,
we look to cases that discuss this concept in the context of a commercial
landowner.3
The McCain zone of risk
analysis has been applied in determining the existence of a duty of a
commercial landowner when the creation of a foreseeable zone of risk on the
commercial property causes an injury off the property. For example, in Whitt
v. Silverman, 788 So. 2d 210 (Fla. 2001), two pedestrians walking on the
sidewalk abutting a gas station were struck by a vehicle exiting that gas
station. The driver of the vehicle alleged he could not see the pedestrians
because his view was obstructed by dense foliage growing on the gas station
property.
analysis has been applied in determining the existence of a duty of a
commercial landowner when the creation of a foreseeable zone of risk on the
commercial property causes an injury off the property. For example, in Whitt
v. Silverman, 788 So. 2d 210 (Fla. 2001), two pedestrians walking on the
sidewalk abutting a gas station were struck by a vehicle exiting that gas
station. The driver of the vehicle alleged he could not see the pedestrians
because his view was obstructed by dense foliage growing on the gas station
property.
The Court noted that the property
involved was a gas station, a commercial business “which by its very nature
involves a continuous flow of traffic entering and exiting the premises for the
commercial benefit of the landowners.” Id. at 222. It was undisputed
that the landowners had exclusive control over the foliage on the property, and
it was not unduly burdensome to have maintained the foliage consistent with a
safe egress and ingress into and out of the property. The question was whether
the commercial landowner owed a duty of care to persons who might be injured as
a result of natural conditions (e.g., landscaping) existing on the landowner’s
property, even where the injury occurs on the sidewalk immediately abutting the
commercial property. The Whitt Court, applying the McCain
“foreseeable zone of risk” analysis, concluded that the commercial landowner
owed a duty of care to the pedestrians, even though the foliage was a natural
condition and even though the injury occurred beyond the property’s boundaries.
The Whitt Court acknowledged that a case-by-case factual analysis is
required to determine whether a commercial landowner owes a duty of care under
these circumstances.
involved was a gas station, a commercial business “which by its very nature
involves a continuous flow of traffic entering and exiting the premises for the
commercial benefit of the landowners.” Id. at 222. It was undisputed
that the landowners had exclusive control over the foliage on the property, and
it was not unduly burdensome to have maintained the foliage consistent with a
safe egress and ingress into and out of the property. The question was whether
the commercial landowner owed a duty of care to persons who might be injured as
a result of natural conditions (e.g., landscaping) existing on the landowner’s
property, even where the injury occurs on the sidewalk immediately abutting the
commercial property. The Whitt Court, applying the McCain
“foreseeable zone of risk” analysis, concluded that the commercial landowner
owed a duty of care to the pedestrians, even though the foliage was a natural
condition and even though the injury occurred beyond the property’s boundaries.
The Whitt Court acknowledged that a case-by-case factual analysis is
required to determine whether a commercial landowner owes a duty of care under
these circumstances.
Further, a commercial landowner has
a duty to provide invitees with safe ingress into, and egress from, its
commercial premises. As recognized in Thompson v. Gallo, 680 So. 2d 441,
443 (Fla. 1st DCA 1996) (quoting IRE Fla. Income Partners, Ltd. v. Scott,
381 So. 2d 1114, 1117 (Fla. 1st DCA 1979)):
a duty to provide invitees with safe ingress into, and egress from, its
commercial premises. As recognized in Thompson v. Gallo, 680 So. 2d 441,
443 (Fla. 1st DCA 1996) (quoting IRE Fla. Income Partners, Ltd. v. Scott,
381 So. 2d 1114, 1117 (Fla. 1st DCA 1979)):
The duty to keep the premises safe for invitees extends to
all portions of the premises that are included in the invitation and that are
necessary or convenient for the invitee to visit or use in the course of the
business for which the invitation was extended. . . . “The duty extends to
approaches to the premises which are open to invitees in connection with their
business on the premises, and which are so located and constituted as to
represent an invitation to visit the place of business and to use such means of
approach.”
all portions of the premises that are included in the invitation and that are
necessary or convenient for the invitee to visit or use in the course of the
business for which the invitation was extended. . . . “The duty extends to
approaches to the premises which are open to invitees in connection with their
business on the premises, and which are so located and constituted as to
represent an invitation to visit the place of business and to use such means of
approach.”
The commercial landowner’s duty
extends to approaches to the premises which are located in such a way as to
represent an invitation to visit the place of business and to use such means of
approach. See Garcia v. City of Hialeah, 550 So. 2d 1158, 1159
(Fla. 3d DCA 1989) (holding that liability can be “derived from the fact that
[the commercial landowner] owed a duty to provide reasonably safe ingress and
egress to business invitees using his gasoline station.”)
extends to approaches to the premises which are located in such a way as to
represent an invitation to visit the place of business and to use such means of
approach. See Garcia v. City of Hialeah, 550 So. 2d 1158, 1159
(Fla. 3d DCA 1989) (holding that liability can be “derived from the fact that
[the commercial landowner] owed a duty to provide reasonably safe ingress and
egress to business invitees using his gasoline station.”)
A commercial landowner abutting a
public highway may owe a duty to passing motorists for creating a dangerous
condition on the highway. Florida Specialty, Inc. v. H 2 Ology, Inc.,
742 So. 2d 523, 526 (Fla. 1st DCA 1999) (reversing dismissal order where
complaint sufficiently alleged the existence of a duty by alleging that the
landowner’s actions in discharging corrosive solution onto an abutting roadway
created a foreseeable zone of risk to employees of neighboring businesses
driving on the roadway to get to and from work).
public highway may owe a duty to passing motorists for creating a dangerous
condition on the highway. Florida Specialty, Inc. v. H 2 Ology, Inc.,
742 So. 2d 523, 526 (Fla. 1st DCA 1999) (reversing dismissal order where
complaint sufficiently alleged the existence of a duty by alleging that the
landowner’s actions in discharging corrosive solution onto an abutting roadway
created a foreseeable zone of risk to employees of neighboring businesses
driving on the roadway to get to and from work).
Finally, a commercial landowner who
creates a foreseeable zone of risk outside of its premises has a duty to lessen
that risk or see that sufficient precautions are taken to protect others from
the harm that the risk poses. In Thunderbird Drive-In Theatre, Inc. v. Reed
By and Through Reed, 571 So. 2d 1341 (Fla. 4th DCA 1990) (receded from on
other grounds in Love v. Garcia, 611 So. 2d 1270 (Fla. 4th DCA 1992)),
the Fourth District affirmed a jury verdict in favor of a driver injured by the
negligence of a drive-in theater that failed to adequately control traffic
congestion caused by the theater’s operations, resulting in an auto accident.
The drive-in theater had seven movie screens and, on the day of the accident,
seven different movies commenced simultaneously, including an “early bird
special” for those arriving between 7:30 and 8:00 p.m.
creates a foreseeable zone of risk outside of its premises has a duty to lessen
that risk or see that sufficient precautions are taken to protect others from
the harm that the risk poses. In Thunderbird Drive-In Theatre, Inc. v. Reed
By and Through Reed, 571 So. 2d 1341 (Fla. 4th DCA 1990) (receded from on
other grounds in Love v. Garcia, 611 So. 2d 1270 (Fla. 4th DCA 1992)),
the Fourth District affirmed a jury verdict in favor of a driver injured by the
negligence of a drive-in theater that failed to adequately control traffic
congestion caused by the theater’s operations, resulting in an auto accident.
The drive-in theater had seven movie screens and, on the day of the accident,
seven different movies commenced simultaneously, including an “early bird
special” for those arriving between 7:30 and 8:00 p.m.
A motorcyclist (Reed) collided with
the driver of a vehicle (Coyman) who had negligently attempted to enter the
Thunderbird drive-in theater. Coyman was driving eastbound, moved into the left
turn lane, and was waiting to turn into the theater entrance. However, there
was a long line of cars in the right lane of westbound traffic also waiting to
turn into the theater. Coyman saw what he thought was an opening into the
theater entrance and began making his left turn crossing into the three lanes
of the westbound traffic. However, he was forced to stop in the middle of the
westbound lanes because a car in the right lane of westbound traffic moved into
the theater entrance, blocking Coyman from entering into that space. This left
Coyman’s vehicle exposed and in the path of Reed’s motorcycle (traveling in a
westbound lane) which could not stop in time, resulting in a collision.
the driver of a vehicle (Coyman) who had negligently attempted to enter the
Thunderbird drive-in theater. Coyman was driving eastbound, moved into the left
turn lane, and was waiting to turn into the theater entrance. However, there
was a long line of cars in the right lane of westbound traffic also waiting to
turn into the theater. Coyman saw what he thought was an opening into the
theater entrance and began making his left turn crossing into the three lanes
of the westbound traffic. However, he was forced to stop in the middle of the
westbound lanes because a car in the right lane of westbound traffic moved into
the theater entrance, blocking Coyman from entering into that space. This left
Coyman’s vehicle exposed and in the path of Reed’s motorcycle (traveling in a
westbound lane) which could not stop in time, resulting in a collision.
Reed sued Coyman as well as
Thunderbird Drive-In, contending, inter alia, that the theater was negligent in
the design and maintenance of its entrance to the theater; that this negligence
caused traffic to build up on the abutting highway, creating a known dangerous
condition; that the theater failed to lessen this dangerous condition (for
example, by hiring additional police to control traffic); and that such
negligence was a proximate cause of the accident.
Thunderbird Drive-In, contending, inter alia, that the theater was negligent in
the design and maintenance of its entrance to the theater; that this negligence
caused traffic to build up on the abutting highway, creating a known dangerous
condition; that the theater failed to lessen this dangerous condition (for
example, by hiring additional police to control traffic); and that such
negligence was a proximate cause of the accident.
The theater argued, inter alia, that
it had no notice of any dangerous condition (no prior similar accidents had
occurred), and that a slowdown in traffic by the congregation of its customers
in the highway could not serve to impose liability on the theater as the
property owner.
it had no notice of any dangerous condition (no prior similar accidents had
occurred), and that a slowdown in traffic by the congregation of its customers
in the highway could not serve to impose liability on the theater as the
property owner.
The jury returned a verdict which
found Thunderbird (as well as Coyman and Reed) liable. Thunderbird appealed and
the Fourth District affirmed, determining that the theater could be held liable
for the dangerous condition it created, even though the dangerous condition was
created on the highway abutting the theater’s property. The court noted that
while the question of foreseeability (as it relates to the issue of proximate
cause) was a question to be answered by the jury, the question of Thunderbird’s
duty was clear:
found Thunderbird (as well as Coyman and Reed) liable. Thunderbird appealed and
the Fourth District affirmed, determining that the theater could be held liable
for the dangerous condition it created, even though the dangerous condition was
created on the highway abutting the theater’s property. The court noted that
while the question of foreseeability (as it relates to the issue of proximate
cause) was a question to be answered by the jury, the question of Thunderbird’s
duty was clear:
Where a
defendant’s conduct creates a foreseeable zone of risk, the law generally will
recognize a duty placed upon defendant either to lessen the risk or see that
sufficient precautions are taken to protect others from the harm that the risk
poses. See Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983)
(citing Crislip v. Holland, 401 So.2d 1115, 1117 (Fla. 4th DCA), review
denied sub nom. City of Fort Pierce v. Crislip, 411 So.2d 380
(Fla.1981)).
defendant’s conduct creates a foreseeable zone of risk, the law generally will
recognize a duty placed upon defendant either to lessen the risk or see that
sufficient precautions are taken to protect others from the harm that the risk
poses. See Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983)
(citing Crislip v. Holland, 401 So.2d 1115, 1117 (Fla. 4th DCA), review
denied sub nom. City of Fort Pierce v. Crislip, 411 So.2d 380
(Fla.1981)).
Id. at 1343-44 (quoting Kaisner, 543 So. 2d at 735-36).
THE “MEDIAN CUT ALLEGATIONS” OF THE COMPLAINT
As recognized by the majority, the
trial court disposed of Sewell’s complaint at the motion to dismiss stage. As a
result, both the trial court and this court must accept all well-pleaded
allegations of the complaint as true, as well as reasonable inferences arising
from those allegations. In short, the allegations and inferences therefrom must
be construed in a light most favorable to the plaintiff. See The
Florida Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006); Rolle v. Cold
Stone Creamery, Inc., 212 So. 3d 1073 (Fla. 3d DCA 2017). With that (and
the previously-discussed legal propositions) in mind, we turn to the specific
allegations of complaint that are at issue in this discussion, the so-called
“Median Cut Allegations”:
trial court disposed of Sewell’s complaint at the motion to dismiss stage. As a
result, both the trial court and this court must accept all well-pleaded
allegations of the complaint as true, as well as reasonable inferences arising
from those allegations. In short, the allegations and inferences therefrom must
be construed in a light most favorable to the plaintiff. See The
Florida Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006); Rolle v. Cold
Stone Creamery, Inc., 212 So. 3d 1073 (Fla. 3d DCA 2017). With that (and
the previously-discussed legal propositions) in mind, we turn to the specific
allegations of complaint that are at issue in this discussion, the so-called
“Median Cut Allegations”:
1. Racetrac entered into a contract for the purchase of
unimproved property located on the north side of Campbell Drive in Homestead,
Florida. Racetrac intended to build a gas station at the location. However, at
the time of the purchase, the portion of Campbell Drive abutting the property
contained an unbroken concrete median separating eastbound and westbound
traffic. As a result, only westbound traffic would be able to access the
property. The median prevented eastbound traffic from making a left-hand turn
to enter the property. The existing median also prevented vehicles from exiting
the property to proceed eastbound; instead vehicles could proceed only
westbound on Campbell Drive.
unimproved property located on the north side of Campbell Drive in Homestead,
Florida. Racetrac intended to build a gas station at the location. However, at
the time of the purchase, the portion of Campbell Drive abutting the property
contained an unbroken concrete median separating eastbound and westbound
traffic. As a result, only westbound traffic would be able to access the
property. The median prevented eastbound traffic from making a left-hand turn
to enter the property. The existing median also prevented vehicles from exiting
the property to proceed eastbound; instead vehicles could proceed only
westbound on Campbell Drive.
2. Racetrac desired to build a “full access” station — one
that would allow both eastbound and westbound vehicles to access the gas
station, and would permit exiting vehicles to access both the eastbound and
westbound lanes of Campbell Drive.
that would allow both eastbound and westbound vehicles to access the gas
station, and would permit exiting vehicles to access both the eastbound and
westbound lanes of Campbell Drive.
3. Racetrac determined it would not purchase the property
(and construct a gas station) unless a “median cut” was made in Campbell Drive
to create the desired full access for both eastbound and westbound travelers.
The purchase contract included a clause that the purchase was contingent on
Racetrac obtaining “approval from all necessary Governmental agencies to construct
a median cut on Campbell Drive . . . designed to allow direct ingress and
egress between [Racetrac] and the Eastbound lane of Campbell Drive [allowing
for left turns into and out of Racetrac], without necessitating a u-turn.”
(and construct a gas station) unless a “median cut” was made in Campbell Drive
to create the desired full access for both eastbound and westbound travelers.
The purchase contract included a clause that the purchase was contingent on
Racetrac obtaining “approval from all necessary Governmental agencies to construct
a median cut on Campbell Drive . . . designed to allow direct ingress and
egress between [Racetrac] and the Eastbound lane of Campbell Drive [allowing
for left turns into and out of Racetrac], without necessitating a u-turn.”
4. In order to make a median cut in Campbell Drive, Racetrac
required approval from Miami-Dade County. In order to obtain a permit for the
median cut, Racetrac was required to conduct a traffic study and submit to
Miami-Dade County a projection of: a) the volume of traffic which would be
generated by the existence of the gas station; and b) the effect this projected
traffic volume would have on the surrounding roadways.
required approval from Miami-Dade County. In order to obtain a permit for the
median cut, Racetrac was required to conduct a traffic study and submit to
Miami-Dade County a projection of: a) the volume of traffic which would be
generated by the existence of the gas station; and b) the effect this projected
traffic volume would have on the surrounding roadways.
5. Thereafter, and in furtherance of its intent to acquire a
“full access” gas station, Racetrac knowingly submitted false and misleading
traffic projections to Miami-Dade County in order to obtain approval for the
median cut in Campbell Drive.
“full access” gas station, Racetrac knowingly submitted false and misleading
traffic projections to Miami-Dade County in order to obtain approval for the
median cut in Campbell Drive.
6. Racetrac knew, from its own internal data and other
sources, that the projections it provided to Miami-Dade County drastically
understated the traffic volume its gas station would actually generate.
sources, that the projections it provided to Miami-Dade County drastically
understated the traffic volume its gas station would actually generate.
7. However, Racetrac also knew that these false and
misleading projections (which greatly understated the traffic volume and
associated impact generated by the gas station) greatly increased Racetrac’s
chances of obtaining approval for the median cut and its desired “full access”
gas station.
misleading projections (which greatly understated the traffic volume and
associated impact generated by the gas station) greatly increased Racetrac’s
chances of obtaining approval for the median cut and its desired “full access”
gas station.
8. Based upon these false and misleading projections, the
County approved Racetrac’s request for a median cut in Campbell Drive, and Racetrac
thereafter constructed its gas station with a median cut, thereby permitting
full access by eastbound and westbound traffic on Campbell Drive.
County approved Racetrac’s request for a median cut in Campbell Drive, and Racetrac
thereafter constructed its gas station with a median cut, thereby permitting
full access by eastbound and westbound traffic on Campbell Drive.
9. Had Racetrac provided Miami-Dade County with accurate and
valid projections of the traffic impact generated by the gas station, no median
cut would have been permitted.
valid projections of the traffic impact generated by the gas station, no median
cut would have been permitted.
10. The presence of the median cut in that portion of
Campbell Drive abutting the gas station created a foreseeable and undue risk of
harm to the motoring public.
Campbell Drive abutting the gas station created a foreseeable and undue risk of
harm to the motoring public.
11. Racetrac knew or should have known that the opening of
the median to permit “full access” (ingress and egress) to and from the gas
station created an undue risk of harm to the motoring public.
the median to permit “full access” (ingress and egress) to and from the gas
station created an undue risk of harm to the motoring public.
12. Racetrac knew or should have known that the median cut to
allow “full access” would create “18 major conflict points” (by allowing left
turns into and out of Racetrac through the median cut), posing an undue risk of
harm to the motoring public that would not be present but for the placement of
the median cut.
allow “full access” would create “18 major conflict points” (by allowing left
turns into and out of Racetrac through the median cut), posing an undue risk of
harm to the motoring public that would not be present but for the placement of
the median cut.
13. Racetrac knew or should have known that the design,
construction, or maintenance of the gas station and median cut posed an undue
risk of harm to the motoring public because the median cut was too narrow for
cars to safely stop in the median when exiting Racetrac and turning left onto
Campbell Drive. As a result, vehicles exiting Racetrac would have to “rapidly
and perpendicularly cross the heavily-traveled fast moving westbound traffic
lanes,” drive through the median break without stopping, and “suddenly intrude”
into the eastbound traffic lanes.
construction, or maintenance of the gas station and median cut posed an undue
risk of harm to the motoring public because the median cut was too narrow for
cars to safely stop in the median when exiting Racetrac and turning left onto
Campbell Drive. As a result, vehicles exiting Racetrac would have to “rapidly
and perpendicularly cross the heavily-traveled fast moving westbound traffic
lanes,” drive through the median break without stopping, and “suddenly intrude”
into the eastbound traffic lanes.
14. Prior similar accidents at the accident site placed
Racetrac on notice that the median cut created a zone of risk (for motorists
like Sewell) which extended beyond the physical boundaries of Racetrac’s gas
station.
Racetrac on notice that the median cut created a zone of risk (for motorists
like Sewell) which extended beyond the physical boundaries of Racetrac’s gas
station.
DISCUSSION
The majority opinion characterizes
the Median Cut Allegations as the main theory of liability, and concludes that
“[t]he cases cited by Sewell do not support her main legal theory that
Racetrac’s petition to open the concrete median in the roadway outside of its
property rises to the level of a tort.” Maj. op. at *9. The majority opinion
then concludes: “[W]e hold that a person who petitions the government for a
road improvement outside of his or her property has no legal duty to guard against
the government making a decision that will create an allegedly unreasonably
dangerous road condition.” Id. at *10. However, Sewell’s one-count
complaint is for simple negligence and is grounded upon the allegation that
Racetrac, by placing a median cut in the highway abutting its commercial
property, knowingly creating a dangerous condition and a foreseeable zone of
risk of injury to others. This case is most assuredly not, as the majority
apparently perceives, a tort grounded upon Racetrac’s petitioning for a median
cut, or Miami-Dade County’s actions in approving the permit for the median cut.
Rather, under the well-pleaded allegations, Racetrac placed a cut in the median
of the highway which (as detailed in the Median Cut Allegations) Racetrac
knew or should have known created a foreseeable and undue risk of harm.
This knowledge is evidenced by the allegation that, in an effort to ensure the
planned gas station permitted “full access” to and from its commercial
property, Racetrac knowingly submitted a traffic study containing false and
misleading projections, to obtain approval for a median cut in the abutting
highway.
the Median Cut Allegations as the main theory of liability, and concludes that
“[t]he cases cited by Sewell do not support her main legal theory that
Racetrac’s petition to open the concrete median in the roadway outside of its
property rises to the level of a tort.” Maj. op. at *9. The majority opinion
then concludes: “[W]e hold that a person who petitions the government for a
road improvement outside of his or her property has no legal duty to guard against
the government making a decision that will create an allegedly unreasonably
dangerous road condition.” Id. at *10. However, Sewell’s one-count
complaint is for simple negligence and is grounded upon the allegation that
Racetrac, by placing a median cut in the highway abutting its commercial
property, knowingly creating a dangerous condition and a foreseeable zone of
risk of injury to others. This case is most assuredly not, as the majority
apparently perceives, a tort grounded upon Racetrac’s petitioning for a median
cut, or Miami-Dade County’s actions in approving the permit for the median cut.
Rather, under the well-pleaded allegations, Racetrac placed a cut in the median
of the highway which (as detailed in the Median Cut Allegations) Racetrac
knew or should have known created a foreseeable and undue risk of harm.
This knowledge is evidenced by the allegation that, in an effort to ensure the
planned gas station permitted “full access” to and from its commercial
property, Racetrac knowingly submitted a traffic study containing false and
misleading projections, to obtain approval for a median cut in the abutting
highway.
The Median Cut Allegations are
relevant because they tend to show that Racetrac knew from the inception the
sought-after median cut would be dangerous and would pose a foreseeable risk of
harm to the motoring public attempting to enter or exit its gas station through
the median cut (or to others injured by motorists attempting to enter or exit
its gas station). “Relevant evidence is evidence tending to prove or disprove a
material fact.” § 90.402, Fla. Stat. (2017).
relevant because they tend to show that Racetrac knew from the inception the
sought-after median cut would be dangerous and would pose a foreseeable risk of
harm to the motoring public attempting to enter or exit its gas station through
the median cut (or to others injured by motorists attempting to enter or exit
its gas station). “Relevant evidence is evidence tending to prove or disprove a
material fact.” § 90.402, Fla. Stat. (2017).
Therefore, while Sewell may indeed
be able to prove her simple negligence claim by relying on the remaining
allegations of her operative complaint (which, as the majority holds, states a
valid cause of action), this does not and should not foreclose Sewell from also
relying on the Median Cut Allegations, as they bear on Racetrac’s knowledge of
the condition and on the question of foreseeability as it relates to the issues
of duty and proximate cause.4
be able to prove her simple negligence claim by relying on the remaining
allegations of her operative complaint (which, as the majority holds, states a
valid cause of action), this does not and should not foreclose Sewell from also
relying on the Median Cut Allegations, as they bear on Racetrac’s knowledge of
the condition and on the question of foreseeability as it relates to the issues
of duty and proximate cause.4
Our sister court, in Almarante v.
Art Inst. of Fort Lauderdale, Inc., 921 So. 2d 703, 705 (Fla. 4th DCA
2006), held that a landowner can be held liable in negligence where it creates
a dangerous condition beyond the physical boundaries of its premises. The
defendant in that case, a private school, built two separate dormitory
buildings, one on each side of a busy highway. One of the two buildings
contained the school’s common facilities, housing the cafeteria, mail center,
and bus stop. The other building housed students, who were routinely required
to cross the busy highway to access the services and facilities in the other
building. However, the school did not install a pedestrian signal, cross-walk,
bridge, or other safety device within the general vicinity of the two buildings
to facilitate a safe crossing of the highway. Two previous pedestrian accidents
put the school on notice as to the dangerous condition created by the need to
cross the busy highway between the two buildings. In seeking the installation
of appropriate safety devices between the buildings from the Florida Department
of Transportation (DOT), the DOT advised the school that it was the school’s
responsibility to conduct a traffic study before the DOT would install the
traffic signal at the school’s expense.
Art Inst. of Fort Lauderdale, Inc., 921 So. 2d 703, 705 (Fla. 4th DCA
2006), held that a landowner can be held liable in negligence where it creates
a dangerous condition beyond the physical boundaries of its premises. The
defendant in that case, a private school, built two separate dormitory
buildings, one on each side of a busy highway. One of the two buildings
contained the school’s common facilities, housing the cafeteria, mail center,
and bus stop. The other building housed students, who were routinely required
to cross the busy highway to access the services and facilities in the other
building. However, the school did not install a pedestrian signal, cross-walk,
bridge, or other safety device within the general vicinity of the two buildings
to facilitate a safe crossing of the highway. Two previous pedestrian accidents
put the school on notice as to the dangerous condition created by the need to
cross the busy highway between the two buildings. In seeking the installation
of appropriate safety devices between the buildings from the Florida Department
of Transportation (DOT), the DOT advised the school that it was the school’s
responsibility to conduct a traffic study before the DOT would install the
traffic signal at the school’s expense.
The plaintiff, a student residing in
one of the dormitory buildings, was hit by a vehicle when crossing the highway.
The school contended that it had “no legal duty under Florida law to provide
reasonably safe passage across a public highway not owned, maintained, or
controlled [by the defendant].” Id. at 704. The trial court agreed and
dismissed the action with prejudice.
one of the dormitory buildings, was hit by a vehicle when crossing the highway.
The school contended that it had “no legal duty under Florida law to provide
reasonably safe passage across a public highway not owned, maintained, or
controlled [by the defendant].” Id. at 704. The trial court agreed and
dismissed the action with prejudice.
On appeal, the Fourth District
reversed. In doing so, the court applied McCain to determine whether the
school foreseeably created a zone of risk of harm to pedestrians (i.e., the
students who crossed the street between the two buildings). Id. at 705.
In its analysis, the court cited to its decision in Gunlock v. Gill Hotels
Co., Inc., 622 So. 2d 163, 164 (Fla. 4th DCA 1993), which held that “a
landowner’s conduct can give rise to a zone of risk extending beyond the
physical boundaries of his property when harm reaching outside those boundaries
is foreseeable.”5 The court in Almarante
reversed the lower court’s dismissal order, holding that the school’s decision
to place its dormitory buildings on both sides of a busy highway, requiring its
students to cross the highway regularly for meals and other student functions,
created a foreseeable zone of danger for its students. Almarante, 921
So. 2d at 705.
reversed. In doing so, the court applied McCain to determine whether the
school foreseeably created a zone of risk of harm to pedestrians (i.e., the
students who crossed the street between the two buildings). Id. at 705.
In its analysis, the court cited to its decision in Gunlock v. Gill Hotels
Co., Inc., 622 So. 2d 163, 164 (Fla. 4th DCA 1993), which held that “a
landowner’s conduct can give rise to a zone of risk extending beyond the
physical boundaries of his property when harm reaching outside those boundaries
is foreseeable.”5 The court in Almarante
reversed the lower court’s dismissal order, holding that the school’s decision
to place its dormitory buildings on both sides of a busy highway, requiring its
students to cross the highway regularly for meals and other student functions,
created a foreseeable zone of danger for its students. Almarante, 921
So. 2d at 705.
I find helpful parallels between the
facts in Almarante and the allegations in the instant case. Like the
dangerous condition and foreseeable zone of risk created by the school when it
constructed buildings on opposite sides of a highway without taking any steps
to ensure that students could safely cross the highway to access the two
buildings, the placement of the median cut in the highway to secure “full access”
to Racetrac’s gas station was a dangerous condition, creating a foreseeable
zone of risk to motorists. Moreover, like the students in Almarante who
were required to cross the highway to utilize the services, and participate in
activities, offered by the school, Racetrac’s invitees were required to use the
median cut for ingress and egress when making left turns into and out of
Racetrac. Sewell has properly pleaded that Racetrac’s actions created a
foreseeable zone of risk and that Racetrac therefore owed a duty, to those
within the foreseeable zone of risk, to either lessen the risk of harm or to
warn of the dangerous condition it created on the highway abutting its
commercial property.
facts in Almarante and the allegations in the instant case. Like the
dangerous condition and foreseeable zone of risk created by the school when it
constructed buildings on opposite sides of a highway without taking any steps
to ensure that students could safely cross the highway to access the two
buildings, the placement of the median cut in the highway to secure “full access”
to Racetrac’s gas station was a dangerous condition, creating a foreseeable
zone of risk to motorists. Moreover, like the students in Almarante who
were required to cross the highway to utilize the services, and participate in
activities, offered by the school, Racetrac’s invitees were required to use the
median cut for ingress and egress when making left turns into and out of
Racetrac. Sewell has properly pleaded that Racetrac’s actions created a
foreseeable zone of risk and that Racetrac therefore owed a duty, to those
within the foreseeable zone of risk, to either lessen the risk of harm or to
warn of the dangerous condition it created on the highway abutting its
commercial property.
For these reasons, I respectfully
concur in part and dissent in part, and would reverse in its entirety that
portion of the trial court’s order which dismisses with prejudice Sewell’s
negligence claim.
concur in part and dissent in part, and would reverse in its entirety that
portion of the trial court’s order which dismisses with prejudice Sewell’s
negligence claim.
__________________
1Examples
include, but are not limited to, the infliction of emotional distress, Metro.
Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985); sovereign
immunity, Commercial Carrier Corp. v. Indian River Cty., 371 So. 2d
1010, 1013 (Fla. 1979); and parental immunity, Ard v. Ard, 414 So. 2d
1066, 1066 (Fla. 1982).
include, but are not limited to, the infliction of emotional distress, Metro.
Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985); sovereign
immunity, Commercial Carrier Corp. v. Indian River Cty., 371 So. 2d
1010, 1013 (Fla. 1979); and parental immunity, Ard v. Ard, 414 So. 2d
1066, 1066 (Fla. 1982).
2A
determination of the existence of a duty is linked to the concept of
foreseeability, and may arise from four general sources: legislative enactments
or administrative regulations; judicial interpretations of such enactments or
regulations; other judicial precedent; and a duty arising from the general
facts of the case. McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n. 2
(Fla. 1992).
determination of the existence of a duty is linked to the concept of
foreseeability, and may arise from four general sources: legislative enactments
or administrative regulations; judicial interpretations of such enactments or
regulations; other judicial precedent; and a duty arising from the general
facts of the case. McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n. 2
(Fla. 1992).
The allegations are also relevant to
a determination of whether, in light of its own actions and its knowledge of
the dangerous condition it created, Racetrac breached a legal duty to exercise
reasonable care. See Clay Elec. Co-op., Inc. v. Johnson, 873 So.
2d 1182, 1185 (Fla. 2003) (a traditional negligence claim is comprised of four
elements: legal duty, breach of that duty by failure to exercise reasonable
care, proximate cause, and actual loss or damage). The concept of
foreseeability is relevant to a determination of both legal duty and proximate
cause. See discussion infra at *14-15.
a determination of whether, in light of its own actions and its knowledge of
the dangerous condition it created, Racetrac breached a legal duty to exercise
reasonable care. See Clay Elec. Co-op., Inc. v. Johnson, 873 So.
2d 1182, 1185 (Fla. 2003) (a traditional negligence claim is comprised of four
elements: legal duty, breach of that duty by failure to exercise reasonable
care, proximate cause, and actual loss or damage). The concept of
foreseeability is relevant to a determination of both legal duty and proximate
cause. See discussion infra at *14-15.
3For this
very reason, the majority’s reliance on Williams v. Davis, 974 So. 2d
1052 (Fla. 2007) is simply misplaced. That case involved a residential
landowner, not a commercial landowner. The holding in Williams is
inapplicable to the question presented in this case: does Racetrac, a
commercial landowner, owe a duty of reasonable care for a dangerous condition
it created (and an injury it caused) beyond the physical boundaries of its
property?
very reason, the majority’s reliance on Williams v. Davis, 974 So. 2d
1052 (Fla. 2007) is simply misplaced. That case involved a residential
landowner, not a commercial landowner. The holding in Williams is
inapplicable to the question presented in this case: does Racetrac, a
commercial landowner, owe a duty of reasonable care for a dangerous condition
it created (and an injury it caused) beyond the physical boundaries of its
property?
The significance of the distinction
between a residential landowner’s duty and a commercial landowner’s duty is
fairly self-evident: a commercial landowner’s success is directly dependent on
customers coming into its business and purchasing its goods or services. To the
extent that, by its actions, the business expressly or implicitly invites
customers onto its property, the commercial landowner has a corresponding duty
which may extend beyond the precise boundaries of the commercial property “to
include approaches to the premises which are open to invitees in connection
with their business on the premises, and which are so located and constituted
as to represent an invitation to visit the place of business and to use such
means of approach.” IRE Fla. Income Partners, Ltd. v. Scott, 381 So. 2d
1114, 1117 (Fla. 1st DCA 1979). See also Garcia v. City of Hialeah,
550 So. 2d 1158, 1159 (Fla. 3d DCA 1989) (holding that a commercial landowner
owed a duty to provide reasonably safe ingress and egress to business invitees
using his gasoline station).
between a residential landowner’s duty and a commercial landowner’s duty is
fairly self-evident: a commercial landowner’s success is directly dependent on
customers coming into its business and purchasing its goods or services. To the
extent that, by its actions, the business expressly or implicitly invites
customers onto its property, the commercial landowner has a corresponding duty
which may extend beyond the precise boundaries of the commercial property “to
include approaches to the premises which are open to invitees in connection
with their business on the premises, and which are so located and constituted
as to represent an invitation to visit the place of business and to use such
means of approach.” IRE Fla. Income Partners, Ltd. v. Scott, 381 So. 2d
1114, 1117 (Fla. 1st DCA 1979). See also Garcia v. City of Hialeah,
550 So. 2d 1158, 1159 (Fla. 3d DCA 1989) (holding that a commercial landowner
owed a duty to provide reasonably safe ingress and egress to business invitees
using his gasoline station).
4Foreseeability
arises in two contexts: in determining the existence of a duty of care, the
trial court must consider whether the conduct of the defendant created a
foreseeable zone of risk. McCain, 593 So. 2d at 504. As it relates to
proximate cause, the question of foreseeability is generally for the factfinder
to consider and resolve. Id. See also Fla. Power & Light
Co. v. Periera, 705 So. 2d 1359, 1361 (Fla. 1998).
arises in two contexts: in determining the existence of a duty of care, the
trial court must consider whether the conduct of the defendant created a
foreseeable zone of risk. McCain, 593 So. 2d at 504. As it relates to
proximate cause, the question of foreseeability is generally for the factfinder
to consider and resolve. Id. See also Fla. Power & Light
Co. v. Periera, 705 So. 2d 1359, 1361 (Fla. 1998).
5The Gunlock
court, in reversing a trial court’s order dismissing a cause of action under
similar circumstances, found that a commercial landowner whose hotel property
encompassed a bar on one side of the highway and hotel rooms on the other side
of the highway, owed a duty to its invitees in passing over the highway to and
from the hotel’s facilities. Gunlock, 622 So. 2d at 164.
court, in reversing a trial court’s order dismissing a cause of action under
similar circumstances, found that a commercial landowner whose hotel property
encompassed a bar on one side of the highway and hotel rooms on the other side
of the highway, owed a duty to its invitees in passing over the highway to and
from the hotel’s facilities. Gunlock, 622 So. 2d at 164.
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