41 Fla. L. Weekly D554aTop of Form
Torts
— Trip and fall over raised brick on brick-paved sidewalk in defendant city —
Trial court erred in entering judgment on verdict in favor of plaintiff where
there was no evidence that city had actual knowledge of the sidewalk defect or
that sidewalk defect had existed long enough that city had constructive
knowledge of it — Color photograph of raised brick was not sufficient, by
itself, to infer that defect had existed for significant time to establish
city’s constructive notice of defect
— Trip and fall over raised brick on brick-paved sidewalk in defendant city —
Trial court erred in entering judgment on verdict in favor of plaintiff where
there was no evidence that city had actual knowledge of the sidewalk defect or
that sidewalk defect had existed long enough that city had constructive
knowledge of it — Color photograph of raised brick was not sufficient, by
itself, to infer that defect had existed for significant time to establish
city’s constructive notice of defect
CITY OF MIAMI, Appellant, vs. FACUNDA S. NAVARRO, Appellee.
3rd District. Case No. 3D14-3038. L.T. Case No. 13-8439. Opinion filed March 2,
2016. An appeal from the Circuit Court for Miami-Dade County, Antonio Arzola,
Judge. Counsel: Victoria Méndez, City Attorney, John A. Greco, Deputy City
Attorney, Richard Otruba, Senior Assistant City Attorney, and Forrest L. Andrews,
Assistant City Attorney, for appellant. Arnold R. Ginsberg; Robert Rossano, for
appellee.
3rd District. Case No. 3D14-3038. L.T. Case No. 13-8439. Opinion filed March 2,
2016. An appeal from the Circuit Court for Miami-Dade County, Antonio Arzola,
Judge. Counsel: Victoria Méndez, City Attorney, John A. Greco, Deputy City
Attorney, Richard Otruba, Senior Assistant City Attorney, and Forrest L. Andrews,
Assistant City Attorney, for appellant. Arnold R. Ginsberg; Robert Rossano, for
appellee.
(Before SUAREZ, C.J., and FERNANDEZ and LOGUE, JJ.)
(SUAREZ, C.J.) The City of Miami (the “City”) appeals a
final judgment entered on a jury verdict finding the City negligent based on a
raised brick paver in a sidewalk over which Appellant Facunda S. Navarro
tripped and fell. Ms. Navarro presented no evidence that the City had actual
notice of the raised brick, and the photograph of the area introduced at trial
in an attempt to prove constructive notice was legally insufficient to raise an
inference as to the length of time the raised brick paver had existed.
Therefore, we reverse.
final judgment entered on a jury verdict finding the City negligent based on a
raised brick paver in a sidewalk over which Appellant Facunda S. Navarro
tripped and fell. Ms. Navarro presented no evidence that the City had actual
notice of the raised brick, and the photograph of the area introduced at trial
in an attempt to prove constructive notice was legally insufficient to raise an
inference as to the length of time the raised brick paver had existed.
Therefore, we reverse.
This case arose when Ms. Navarro was injured after she
tripped and fell over a raised brick while walking on a brick-paved sidewalk in
the City of Miami. In order to maintain a prima facie case of negligence
against the City, Ms. Navarro had to prove either that the City had actual
knowledge of the sidewalk defect, of which there was no evidence, or
constructive knowledge through some evidence that the sidewalk defect existed
long enough that the City should have known of it. Leon v. City of Miami,
312 So. 2d 518, 519 (Fla. 3d DCA 1975). In an attempt to establish the City’s
negligence, Ms. Navarro relied upon a color photograph of the raised brick that
she argued was sufficient, by itself, to infer that the defect had existed for
a significant period of time to establish the City’s constructive notice of the
defect. Ms. Navarro did not provide any testimony as to the length of time it
would take for a brick paver to raise up in the manner she claimed the
photograph demonstrated.1
tripped and fell over a raised brick while walking on a brick-paved sidewalk in
the City of Miami. In order to maintain a prima facie case of negligence
against the City, Ms. Navarro had to prove either that the City had actual
knowledge of the sidewalk defect, of which there was no evidence, or
constructive knowledge through some evidence that the sidewalk defect existed
long enough that the City should have known of it. Leon v. City of Miami,
312 So. 2d 518, 519 (Fla. 3d DCA 1975). In an attempt to establish the City’s
negligence, Ms. Navarro relied upon a color photograph of the raised brick that
she argued was sufficient, by itself, to infer that the defect had existed for
a significant period of time to establish the City’s constructive notice of the
defect. Ms. Navarro did not provide any testimony as to the length of time it
would take for a brick paver to raise up in the manner she claimed the
photograph demonstrated.1
The trial court found that the photograph was legally
sufficient and denied the City’s motion for directed verdict, thus allowing the
issue of whether the defect had existed for a sufficient length of time to go
to the jury. This was error. The issue of whether a photograph alone is legally
sufficient to show negligence through the passage of time was answered by the
Supreme Court in Hannewacker v. City of Jacksonville Beach, 419 So. 2d
308 (Fla. 1982). There the Court stated:
sufficient and denied the City’s motion for directed verdict, thus allowing the
issue of whether the defect had existed for a sufficient length of time to go
to the jury. This was error. The issue of whether a photograph alone is legally
sufficient to show negligence through the passage of time was answered by the
Supreme Court in Hannewacker v. City of Jacksonville Beach, 419 So. 2d
308 (Fla. 1982). There the Court stated:
If
the photograph portrays a condition that has some distinguishing feature which
clearly shows that the defect has existed for a long period of time, it may
afford the jury a basis to infer that a significant period of time has passed.
If the photograph is ambiguous on this point and what is shown makes it
questionable whether a significant period has passed, the jury would
necessarily be required to indulge in speculation to determine the duration of
the condition. In such a case the photograph without live testimony is
insufficient. This is no different than if a witness testifies to the condition
of a defect at the time of an accident and there are no distinguishing features
or other testimony to indicate its duration. In such instance the trial judge
is entitled to direct a verdict on the question of constructive notice. Since
that is the law in effect for testimonial evidence, it should be the same when
the witness is a photograph. But there are photographs which may constitute
tangible evidence of the scene of an accident sufficient to raise an inference
as to the length of time the defect was present. While this depends entirely on
the condition sought to be depicted, the photograph must clearly demonstrate
that a significant period of time has passed.
the photograph portrays a condition that has some distinguishing feature which
clearly shows that the defect has existed for a long period of time, it may
afford the jury a basis to infer that a significant period of time has passed.
If the photograph is ambiguous on this point and what is shown makes it
questionable whether a significant period has passed, the jury would
necessarily be required to indulge in speculation to determine the duration of
the condition. In such a case the photograph without live testimony is
insufficient. This is no different than if a witness testifies to the condition
of a defect at the time of an accident and there are no distinguishing features
or other testimony to indicate its duration. In such instance the trial judge
is entitled to direct a verdict on the question of constructive notice. Since
that is the law in effect for testimonial evidence, it should be the same when
the witness is a photograph. But there are photographs which may constitute
tangible evidence of the scene of an accident sufficient to raise an inference
as to the length of time the defect was present. While this depends entirely on
the condition sought to be depicted, the photograph must clearly demonstrate
that a significant period of time has passed.
Id. at 311-12 (emphasis added).
The photograph provided by Ms. Navarro failed to satisfy the
requirements of Hannewacker. While the photograph did show a raised
brick paver, that was all that it showed. There is nothing contained in the
photograph itself that demonstrates, much less clearly demonstrates, the
passage of any time relative to the raising of the brick. In order to arrive at
the decision that a significant time had passed, the jury would have had to
speculate about the duration of the condition. Such speculation is not
permitted under Hannewacker. In the absence of any other evidence on
that issue, the trial court should have directed a verdict in favor of the
City. Reversed and remanded for entry of a directed verdict in favor of the
City of Miami.
requirements of Hannewacker. While the photograph did show a raised
brick paver, that was all that it showed. There is nothing contained in the
photograph itself that demonstrates, much less clearly demonstrates, the
passage of any time relative to the raising of the brick. In order to arrive at
the decision that a significant time had passed, the jury would have had to
speculate about the duration of the condition. Such speculation is not
permitted under Hannewacker. In the absence of any other evidence on
that issue, the trial court should have directed a verdict in favor of the
City. Reversed and remanded for entry of a directed verdict in favor of the
City of Miami.
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1Appellant did provide some testimony
regarding the sinking of brick pavers, but that was not pertinent to the
question at issue. Likewise, Appellant’s photographs of an entirely separate
area of a nearby sidewalk were also not pertinent to the issue.
regarding the sinking of brick pavers, but that was not pertinent to the
question at issue. Likewise, Appellant’s photographs of an entirely separate
area of a nearby sidewalk were also not pertinent to the issue.
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