 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Davis v. Dollar Rent A Car Systems9/1/2005
ON MOTION FOR REHEARING
The Appellee, Beverly Williams, has filed a motion for rehearing directed to our opinion rendered on November 17, 2004. We feel compelled to address the allegations and arguments made in the motion because it is obvious that Williams misunderstands and misstates the rationale of our decision. The motion for rehearing asserts that no duty was owed by Williams because the decision in Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001), has a very narrow reach and is limited to private property used commercially. Williams thus argues that we should apply a strict rule of no liability for private property owners like herself whose property is not used commercially, rather than the foreseeable zone of risk standard applied in Whitt. Indeed, the central issue in this case is whether the foreseeable zone of risk standard applies. The argument is also advanced that no duty of care should be owed based on the policy consideration that it would be "ruinous" and, therefore, unreasonable to expect private landowners to keep their property clear of foliage so that it does not obstruct the view of motorists entering and exiting an adjacent intersection.
Addressing first the assertions made regarding our application of the decision in Whitt, we did not say that Whitt is indistinguishable from the instant case. We did say, however, and correctly so, that Whitt is factually analogous because it involved private property containing foliage that obstructed the view of motorists attempting to negotiate the adjacent intersection. Obviously, the fact that the property in Whitt was commercial as opposed to non-commercial is a distinguishing feature. Nevertheless, Whitt is clear in holding that the foreseeable zone of risk standard adopted by the court in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), is the appropriate standard for us to apply to determine whether a duty is owed by private landowners, like Williams, to motorists whose view of the adjacent roadway is obstructed by foliage on their property. In this regard, it is beyond doubt that Whitt is indistinguishable from cases where the property, as in the instant case, is not used commercially. Indeed, the court in Whitt clearly stated that in negligence cases in general, the foreseeable zone of risk standard as explained in McCain must be applied to determine whether a common law duty was owed. Specifically, the court in Whitt stated that the purpose of the decision in McCain is to "restate the general principles of negligence law and clarify the role that foreseeability plays in evaluating the duty and proximate cause elements of a common law negligence claim." Whitt, 788 So. 2d at 216. The court further stated:
Importantly, subsequent decisions in accident cases resulting from visual obstructions to motorists have recognized and applied McCain's foreseeability analysis to determine whether the landowner owed a duty of care and whether that duty was breached in a particular instance. See Napoli v. Buchbinder, 685 So. 2d 46, 47 (Fla. 4th DCA 1996) (holding that plaintiff's wrongful death action alleging that design of parking lot and placement of stop sign which contributed to accident created a material question of fact as to whether defendant's alleged negligence placed plaintiff in a foreseeable zone of risk); Dykes v. City of Apalachicola, 645 So. 2d 50 (Fla. 1st DCA 1994) (holding that the test to determine whether city was liable for trees and bushes which allegedly contributed to an accident was whether defendant's conduct created a "foreseeable zone of risk"). Hence, it appears that McCain has been applied in most instances as we intended, as a restatement of the law of negligence.
Id. at 217-1
Page 1 2 3 4 5 6 7 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|