Sewell v. Racetrac Petroleum, Inc. , 245 So. 3d 822 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed December 27, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-1218
Lower Tribunal No. 10-38782
________________
Crystal Sewell,
Appellant,
vs.
Racetrac Petroleum, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.
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.
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.
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.
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
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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.
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.”
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
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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.
Racetrac filed a motion to dismiss, 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.”).
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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.
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
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
1 Examples 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).
5
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.
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)).
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
6
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)).
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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.
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).
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,
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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).
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
9
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.
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.
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
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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.
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Crystal Sewell v. Racetrac Petroleum, Inc.
Case No. 3D16-1218
ROTHENBERG, C.J. (concurring in 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,
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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.
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
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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.
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
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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
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):
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.
As to the duty owed to invitees, the 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.
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
15
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.
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.
B. The law regarding a landowner’s duty to invitees
16
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).
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
17
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.
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
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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.
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.
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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.
C. 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.
In Hardin v. Jacksonville Terminal Co., 175 So. 226 (Fla. 1937), the issue
before the Florida Supreme Court was whether Jacksonville Terminal Co. (“the
20
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
21
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
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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.
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).
23
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.
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
24
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
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.
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.
Neither of those scenarios are present in this case. The plaintiff in the
25
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
26
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
27
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.
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
28
the roadway adjacent to Racetrac’s premises, but which was entirely owned,
maintained, and controlled by the County.
Crystal Sewell v. Racetrac Petroleum, Inc.
3D16-1218
EMAS, J., concurring in part and 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
29
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).
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.
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
30
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
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
2 A determination of the existence of a duty is linked to the concept of
foreseeability, and may arise from four general sources: legislative enactments or
31
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:
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
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.
32
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)).
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
3 For 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?
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
33
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.
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
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).
34
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)):
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.”
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
35
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).
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
36
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.
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.
37
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.
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:
Where a defendant's conduct creates a foreseeable zone of risk, the
law generally will recognize a duty placed upon defendant
{ "pageset": "S09
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
38
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.
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.
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
39
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.
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.
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.
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.
8. Based upon these false and misleading projections, the County approved
Racetrac’s request for a median cut in Campbell Drive, and Racetrac
40
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.
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.
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.
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.
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.
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.
41
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
42
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).
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
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
4 Foreseeability 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).
43
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.
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
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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
5 The 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.
45
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.
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