 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Davis v. Dollar Rent a Car Systems11/17/2004
l duty, a trial court is required to examine the factual allegations that go to the question of whether a duty was foreseeable. See McCain, 593 So. 2d at 503 n.1. Facts to support foreseeability can be relevant to both the element of duty and the element of proximate causation. Florida Power & Light Co. v. Periera, 705 So. 2d 1359 (Fla. 1998) (citing McCain, 593 So. 2d at 502). The necessary examination of alleged facts, which the supreme court recognizes may be essential in determining whether or not a legal duty exists, does not convert the duty analysis into a jury question.
With these principles in mind, we examine the factual allegations. Davis alleged the following as to Williams in the third amended complaint:
72. That at all times material hereto, Defendants WILLIAMS were the owners of real property located at the northeast corner at or near the intersection of Sidney Hayes Road and Pine Street in Orlando, Orange County, Florida.
73. That on or about August 25, 1997, decedent Twanda Green was operating a vehicle at or near the above-described intersection when she was hit broadside by oncoming traffic resulting in her death.
74. That according to the Investigative Report of the Florida Highway Patrol, said property was overgrown with bushes and trees thereby obscuring the view for westbound traffic on Pine Street, of the northbound lane of Sidney Hayes Road, up to a distance of approximately 12 feet from the intersection.
75. Defendants WILLIAMS had a duty and/or assumed a duty to maintain the vegetation growing on their property so that the vegetation would not obstruct the vision of drivers lawfully operating vehicles at or near the intersection of Pine Street and Sidney Hayes Road, Orlando.
Pursuant to McCain, which we are bound to apply, we conclude that these allegations present a situation in which a foreseeable zone of risk was more likely than not created by Williams and that Williams owed a duty of care to Davis. It is undisputed that Williams owned the property adjacent to the intersection where the fatal accident occurred and Davis specifically alleges that the view of the highway at the intersection was obscured by overgrown foliage on Williams' property. Davis further alleges that because of this obstruction, the decedent was unable to clearly see the traffic at the intersection and this was a cause of the accident. Moreover, for purposes of the summary judgment proceedings in the trial court, we do not find in the record any evidence presented by Williams contesting the allegation that the foliage did obstruct the view of the intersection and, similar to Whitt, there is nothing in the record to indicate that it would have been unduly burdensome for Williams to have maintained the foliage to eliminate the danger. Even if we maintained any doubts about this issue, and we do not, pursuant to the standard of review we must apply to summary judgments, any doubts must be resolved in favor of Davis as the nonmoving party. See Clay Electric. Therefore, we cannot find a lack of duty in the instant case and the summary judgment must be reversed.
The record also indicates that there may be another basis upon which a duty of care may be established. Davis alleges that Williams had entered into a contract with Orange County to clear this foliage. The alleged existence of the contract gave rise to a separate action by Davis against the Orange County Board of County Commissioners. On appeal from a summary judgment in favor of Orange County, this court reversed for further proceedings on the issue whether Orange County had entered into a contract with Williams to clear the overgrown foliage on Williams' property adjac
Page 1 2 3 4 5 6 7 8 9 10 11 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|