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Davis v. Dollar Rent a Car Systems11/17/2004
ent to the intersection where the accident occurred. Davis v. Orange County Bd. of County Comm'rs, 852 So. 2d 370 (Fla. 5th DCA 2003).
This contractual issue could be significant to the instant case because the existence of such a contract may be evidence that Williams voluntarily undertook a duty to clear the obstructing foliage to reduce the danger to those entering and exiting the intersection. "It is clearly established that one who undertakes to act, even when under no obligation to do so, thereby becomes obligated to act with reasonable care." Union Park Mem'l Chapel v. Hutt, 670 So. 2d 64, 66-67 (Fla. 1996) (citations omitted); see also Clay Electric. In Union Park, the complaint alleged, as does Davis' complaint in the instant case, that the defendants "had a duty and/or assumed a duty . . . ." The court held that this allegation was sufficient to allege a duty that may have been voluntarily assumed. It is noteworthy that the court in Union Park applied the foreseeable zone of risk analysis adopted by the court in McCain. Hence, even if there had been no common law duty of care owed by Williams as a private landowner regarding foliage on her property, then summary judgment was still improper based on the possibility that Williams voluntarily assumed a duty via the alleged contract with Orange County. See Davis.
Conclusion
Davis' failure to answer the request for admissions did not support the entry of summary judgment against her because a request for admissions seeking an admission regarding a conclusion of law is not appropriate under rule 1.370 and thus does not require a response. We also conclude, pursuant to Whitt and McCain, that the foreseeable zone of risk standard must be applied to determine whether a duty of care was owed by a private landowner to a motorist injured in an accident allegedly caused by foliage on the owner's property that obstructed the motorist's view of the intersection. Having applied this standard, we further conclude that the facts as alleged would create a duty of care to the decedent under the particular circumstances of the instant case and that summary judgment for Williams was improper.
We express no opinion relating to the merits of Davis' case. See Clay Electric. We simply hold that the courthouse doors should be opened to Davis so she can litigate the merits of her claim. Whether the foliage was the proximate cause of the accident, what the standard of care should be in the instant case, and whether the decedent was solely at fault are matters that should be left either to the jury or to appropriate pretrial motions presented to the trial court.
We certify to the Florida Supreme Court as a matter of great public importance the following question:
DOES THE FORESEEABLE ZONE OF RISK ANALYSIS ESTABLISHED IN MCCAIN APPLY TO PRIVATE OWNERS OF NON-COMMERCIAL PROPERTY CONTAINING FOLIAGE THAT BLOCKS MOTORISTS' VIEW OF AN ADJACENT INTERSECTION AND CAUSES AN ACCIDENT WITH RESULTING INJURIES?
REVERSED.
PALMER, J., concurs.
GRIFFIN, J., concurs in part and dissents in part, with opinion.
GRIFFIN, J., concurring in part; dissenting in part.
I respectfully dissent from the opinion of the majority on the question whether the Williamses owed a duty to provide motorists a clear view of oncoming traffic across their property.
It is clear that Florida has not historically recognized any such duty. Bassett v. Edwards, 158 Fla. 848, 30 So. 2d 374, 376 (1947); Pedigo v. Smith, 395 So. 2d 615-16 (Fla. 5th DCA 1981); Evans v. Southern Holding Corp., 391 So. 2d 231 (Fla. 3d DCA 1980). There is also no doubt that a recent line of cas
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