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Davis v. Dollar Rent a Car Systems11/17/2004
ve frequently stated, is governed by our pronouncements in McCain. In the instant case, the landowners were the owners of a commercial establishment, a service station, which by its very nature involves a continuous flow of traffic entering and exiting the premises for the commercial benefit of the landowners. In addition, it is undisputed that the landowners had exclusive control over the foliage and landscaping on the business premises, and it does not appear that it would have been unduly burdensome for the landowners to have maintained this foliage consistent with the safe egress and ingress of vehicles attracted to the business and persons affected thereby.
788 So. 2d at 222.
At the end of its analysis, the supreme court in Whitt was willing only to say that, where the landowner operates a commercial enterprise in an urban area that causes people to drive onto the property in cars and then leave in cars, the business owner has a duty to assure that this happens safely. In Whitt, it is not the ownership of land or the failure to trim or eliminate a hedge that creates the zone of risk, but the conduct of a drive-in/drive-out commercial enterprise on the property in proximity to the sidewalk that creates the zone of risk and gives rise to the duty to trim the foliage.
There is a second limitation to the holding in Whitt. The court expressly confined its holding to "urban" settings. In its discussion of the prevailing law, the court noted that the Restatement Second of Torts had expanded landowner liability to the extent of the condition of trees in an urban area. 788 So. 2d at 216. The court noted that use of the word "condition" had generally been interpreted not to include the tree's location, only the risk that debris from the tree might fall onto the roadway. Id at n.10. Although the court did not expressly accept the rural/urban dichotomy, it appears that this cautious expansion of liability to an urban setting was significant to the Whitt court. The absolute rhetoric of "foreseeable zone of risk" notwithstanding, this suggests that ultimately the negligence inquiry remains a classic balancing test: what is the foreseeability and likelihood that defendant's conduct will result in injury to another against the burden to the defendant of avoiding the injury and what are the social consequences of imposing such a burden?
In Whitt, the court implicitly determined that where the location is urban and commercial and cars will inevitably meet pedestrians where the driveway meets the sidewalk, the foreseeability and likelihood of injury are substantial. At the same time, given the size of the property, the nature of the obstruction and the profit motive of the owner, the burden on the commercial landowner to provide visibility for safe egress is slight, thereby giving rise to a duty to provide visibility.
Just months before our supreme court decided Whitt, a Massachusetts court was faced with a fact pattern very close to the one in this case. In Hackett v. Costa, 12 Mass. L. Rep. 420, 2000 WL 1862676 (Mass. Super. 2000), a motorcyclist injured when an automobile pulling a camper pulled out in front of him at an intersection, sued the adjacent property owner, alleging that his line of sight was impaired by shrubbery located entirely within the property on the corner and that the line of sight of the driver of the automobile was "shortened." The Massachusetts court reviewed the cases on both sides of this issue in other jurisdictions and rejected this claim of liability. Id. at *1. The court noted that the legislature had placed the burden of safely traversing an intersection on the motorists using the road and had imposed no duty on landowners at intersection
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