Lee County Department of Transportation v. The Island Water Association, Inc. , 218 So. 3d 974 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LEE COUNTY DEPARTMENT OF )
TRANSPORTATION, )
)
Appellant, )
)
v. ) Case No. 2D16-234
)
THE ISLAND WATER ASSOCIATION, )
INC., and ANNETTE CANTALUPO, )
)
Appellees. )
__________________________________ )
Opinion filed April 19, 2017.
Appeal from the Circuit Court for Lee County;
Elizabeth V. Krier, Judge.
James L. Holloway, III, Assistant County
Attorney, Lee County Attorney's Office,
Fort Myers, for Appellant.
Michael R. D'Lugo of Wicker, Smith,
O'Hara, McCoy & Ford, P.A., Orlando, for
Appellee The Island Water Association, Inc.
No appearance for Appellee Annette
Cantalupo.
SILBERMAN, Judge.
Annette Cantalupo tripped and fell over a water valve located on a county
road. As a result, she filed a negligence action against Lee County Department of
Transportation and The Island Water Association, Inc. Lee County appeals a final
summary judgment in favor of Island Water in which the trial court determined that
Island Water did not have a legal duty to repair the county road around its water valve
or warn the public. Lee County is also challenging the trial court's ruling to exclude
evidence of subsequent remedial measures. Because the trial court erred as a matter
of law in determining that Island Water did not have a legal duty, we reverse and
remand for further proceedings. We also address the issue regarding evidence of
subsequent remedial measures for purposes of remand. Based on this disposition, we
need not address Lee County's remaining issue raised on appeal.1
In her amended complaint against Lee County and Island Water,
Cantalupo alleged that on December 5, 2010, she was legally walking on a roadway
when she tripped and fell over a water valve cover (the valve) that was protruding in the
roadway, causing her to sustain injuries. The valve was on Captiva Drive in an area
used by pedestrians. Defendant Lee County owns Captiva Drive and Defendant Island
Water owns the valve and the pipes underneath it. Cantalupo alleged that Island Water
owed her a duty to exercise reasonable care for her safety. She further alleged that
Island Water breached that duty by negligently failing to maintain the valve in the
roadway, failing to inspect the valve to determine whether the protruding valve
constituted a hazard to pedestrians, failing to warn Cantalupo of the danger of the
protruding valve, and failing to correct the unreasonably dangerous condition of the
1
In a related appeal, Cantalupo raises the same issues Lee County raises
here, and for the reasons expressed in this opinion, we reverse and remand in
Cantalupo's appeal. See Cantalupo v. Island Water Ass'n, No. 2D16-363 (Fla. 2d DCA
April 19, 2017).
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valve. In addition, Cantalupo alleged that Island Water knew or should have known of
this foreseeably dangerous condition but failed to take any precautions to alleviate the
dangerous condition or warn of it.
At the time of Cantalupo's accident, the asphalt surrounding the valve had
separated from around the valve. It appeared that the asphalt had sunk such that the
asphalt was no longer flush with the valve, causing the valve to protrude above the
asphalt. Approximately three months after the accident, Island Water had repairs made
to the asphalt around the valve to bring the asphalt flush with the valve.
Island Water filed motions in limine on a number of matters, and after a
hearing, the trial court entered an order on motions in limine and on legal duties in
which it excluded evidence of subsequent remedial measures. In one of its motions in
limine, Island Water also sought to exclude evidence that it had a legal duty to maintain
the asphalt surrounding the valve. In its order, the trial court determined that Island
Water did not have a duty to Cantalupo to maintain the road surrounding the valve
based on its repair of the road around the valve after the accident or because it was
contractually obligated to maintain the valve.
Cantalupo filed a motion for reconsideration of the in-limine order, and
Island Water filed a motion for summary judgment as to the duty issue. Island Water
asserted that there was a pure issue of law as to whether Island Water had any legal
duty before the accident to maintain the asphalt surrounding the valve. The trial court
conducted one hearing on both motions. Cantalupo argued at the hearing that Island
Water had a legal duty in addition to its contractual duty. The trial court denied the
motion for reconsideration and entered a final summary judgment in favor of Island
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Water. The trial court relied on an agreement between Island Water and Lee County to
determine: (1) Island Water's only duty to the public was as to its equipment, and (2)
Island Water had no duty in a circumstance where there was a depression in the
asphalt around the valve and Island Water did not install the asphalt or damage it.
Island Water's Legal Duty
Lee County contends that the trial court erred in determining that Island
Water had no duty to the public to warn of or correct a protruding water valve in a public
roadway. Our review is de novo because the determination of the duty element of
negligence is a question of law. Chirillo v. Granicz, 199 So. 3d 246, 248 (Fla. 2016). In
addition, the review of a summary judgment is de novo. Id. at 249. To uphold a
summary judgment, there must be no genuine issue of material fact and the moving
party must be entitled to a judgment as a matter of law. Cook v. Bay Area Renaissance
Festival of Largo, Inc., 164 So. 3d 120, 122 (Fla. 2d DCA 2015). If there is a possibility
of a genuine issue of material fact, summary judgment is inappropriate. See id.
In Chirillo, the Florida Supreme Court recognized that McCain v. Florida
Power Corp., 593 So. 2d 500 (Fla. 1992), is the starting point in negligence cases for an
analysis of the duty element. 199 So. 3d at 249. The McCain court explained that
foreseeability is related to both duty and proximate cause but in different ways. 593 So.
2d at 502. "The duty element of negligence focuses on whether the defendant's
conduct foreseeably created a broader 'zone of risk' that poses a general threat of harm
to others." Id. (quoting Kaisner v. Kolb, 543 So. 2d 732, 735 (Fla. 1989)). Duty "is a
minimal threshold legal requirement for opening the courthouse doors." Id. (footnote
omitted). The McCain court "described four sources of duty: statutes, judicial
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interpretation of statutes, other judicial precedent, and the general facts of the case."
Chirillo, 199 So. 3d at 250 (citing McCain, 593 So. 2d at 503 n.2). Here, the general
facts of the case give rise to the duty based on the principle that "a legal duty will arise
whenever a human endeavor creates a generalized and foreseeable risk of harming
others." McCain, 593 So. 2d at 503.
The issue of duty does not depend on ownership of the property. Cook,
164 So. 3d at 122; Metsker v. Carefree/Scott Fetzer Co., 90 So. 3d 973, 977 (Fla. 2d
DCA 2012). A party who has control over premises has a duty of care to keep the
premises in repair. Cook, 164 So. 3d at 122; Metsker, 90 So. 3d at 977. And when two
parties share control of the premises, both parties may have a duty of care. Metsker, 90
So. 3d at 977; Craig v. Gate Maritime Props., Inc., 631 So. 2d 375, 378 (Fla. 1st DCA
1994).
"As a general rule, utilities have 'a duty to exercise care, both in the
location or construction and in the use and maintenance of its lines,' poles, and
equipment." Webb v. Glades Elec. Coop., Inc., 521 So. 2d 258, 259 (Fla. 2d DCA
1988) (quoting Padgett v. W. Fla. Elec. Coop., Inc., 417 So. 2d 764, 766 (Fla. 1st DCA
1982)). Applying the McCain analysis, when Island Water decided to operate utilities in
a public roadway, it assumed a common law duty to maintain its valves to allow the
public to safely navigate on or around them. On the date of the accident, the valve was
sticking up one and a half to two inches above the asphalt. It was reasonably
foreseeable that someone would trip over a valve that was protruding above the
roadway.
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Even if the valve protruded due to the erosion of the asphalt around it,
Island Water is not absolved of its responsibility to keep the public safe from a known
tripping hazard. For instance, in City of Tampa v. Jorda, 445 So. 2d 699, 700 (Fla. 2d
DCA 1984), this court determined that the trial court properly submitted to the jury the
issue of the negligence of both the city and the landowner plaintiff. There, the plaintiff
fell when she stepped on the city's water meter box in her front yard. The meter box
had become tilted because some of the sand under the meter box had fallen away. The
meter box gave way when the plaintiff stepped on it, thus causing her to fall. Id.
Similarly, Island Water's valve became a hazard when it protruded above the pavement
when the asphalt around it eroded or settled. See Utter v. Jacksonville Utils. Mgmt.,
Inc., 363 So. 2d 829, 829 (Fla. 1st DCA 1978) (reversing dismissal of amended
complaint when it alleged a water utility's "negligent maintenance of its water meter and
the creation or failure to repair a hazardous hole surrounding it"); City of Niceville v.
Hardy, 160 So. 2d 535, 537 (Fla. 1st DCA 1964) (stating in a negligence case that the
plaintiff's theory of recovery for a dangerous and defective condition was sound when
the plaintiff's foot slid into a water meter box owned by the city and the meter box, due
to soil erosion, had become tilted so that the lid would not stay on the box).
Here, based on the trial court's reliance on Lee County's agreement with
Island Water, the trial court found that Island Water had a duty to the public only as to
its equipment. Of course, the fact that the valve was protruding made that equipment a
hazard. Further, an agreement between two parties does not necessarily absolve a
party from a duty to the public.
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The trial court found that Island Water had no duty regarding the asphalt
around the valve because Island Water had not installed that asphalt and had not
damaged the asphalt during maintenance checks. But despite a contract, a party who
exercises control over property may have a duty to maintain a premises in a reasonably
safe condition. See Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 736 (Fla. 4th DCA
2012) (reversing summary judgment and stating that "a commercial tenant may have a
duty, independent of the landlord's duty, to maintain premises in a reasonably safe
condition regardless of whether the landlord has contractually assumed responsibility to
maintain the premises") (citing Levy v. Home Depot, Inc., 518 So. 2d 941, 942 (Fla. 3d
DCA 1987); Bovis v. 7-Eleven, Inc., 505 So. 2d 661, 664 (Fla. 5th DCA 1987)).
The trial court erred as a matter of law in determining that Island Water had no legal
duty to correct or warn of a protruding water valve that was a tripping hazard.
Therefore, we reverse the final summary judgment and remand for further proceedings.
Evidence of Subsequent Remedial Measures
Lee County contends that the trial court erred in granting Island Water's
motion in limine to exclude evidence of subsequent remedial repairs. Island Water
claims that its equipment did not cause the damage to the asphalt surrounding the
valve. But about three months after Cantalupo's trip and fall, Island Water repaired the
asphalt around the valve. Island Water successfully argued to the trial court that
evidence of the subsequent remedial measures was inadmissible under section 90.407,
Florida Statutes (2015), because the purpose of the evidence was to show negligence
or culpable conduct.
Section 90.407 provides as follows:
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Evidence of measures taken after an injury or harm caused
by an event, which measures if taken before the event would
have made injury or harm less likely to occur, is not
admissible to prove negligence, the existence of a product
defect, or culpable conduct in connection with the event.
This rule does not require the exclusion of evidence of
subsequent remedial measures when offered for another
purpose, such as proving ownership, control, or the
feasibility of precautionary measures, if controverted, or
impeachment.
Lee County argues that the exception in section 90.407 applies because the evidence
would be offered to show Island Water's control over the asphalt around the valve.
"It is well settled that a public or private entity which owns, operates, or
controls a property, including a roadway, owes a duty to maintain that property, and a
corresponding duty to warn of and correct dangerous conditions thereon." Pollock v.
Fla. Dept. of Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004). In Cook v. Bay Area
Renaissance Festival of Largo, Inc., 164 So. 3d 120, 122 (Fla. 2d DCA 2015), this court
also recognized that a party who exercises control over a premises has a corresponding
duty and reversed a summary judgment in favor of the defendant. There, the fact that
an employee of the defendant removed the pipe that caused the injury after the accident
was a factor in determining whether the defendant exercised control of the premises.
Id. at 123. In considering all the evidence, this court determined that issues of material
fact existed regarding whether the defendant exercised control of the area where the
plaintiff was injured. Id.
Here, the parties seem to dispute on appeal whether the issue of Island
Water's control of the roadway was controverted. Island Water acknowledged the ability
to control the roadway under circumstances when its equipment caused damage or
needed repairs. And the trial court found, "It is uncontroverted that [Island Water] has
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the ability to access and affect the road around the valve if such is required in order to
repair or maintain the valve." But the issue that Lee County raises is whether Island
Water had the ability to control the roadway around the valve absent the need for
repairs to Island Water's equipment.
This issue will need to be addressed on remand because we are reversing
on the issue of legal duty. Thus, on remand, the evidence of subsequent remedial
repairs would be admissible at trial to show control if Island Water denies that it had the
ability to control the roadway to make repairs in circumstances when its equipment did
not cause the damage or need repair.
In addition, Lee County argues that the subsequent remedial measures
are admissible as impeachment. On remand, if a witness testifies that Island Water did
not have control over the roadway to make the repairs to the asphalt, then evidence of
subsequent remedial measures would be admissible for impeachment. See § 90.407.
Conclusion
We reverse the final summary judgment in favor of Island Water and the
order of December 16, 2015, that sets forth findings on the motion for reconsideration
regarding subsequent remedial measures. We also reverse the order in limine of
December 1, 2015, as to the ruling on subsequent remedial measures and the legal
duty of Island Water. We remand for further proceedings in the trial court.
Reversed and remanded.
KELLY and WALLACE, JJ., Concur.
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