Tieder v. Little

Citation502 So.2d 923,12 Fla. L. Weekly 203
Decision Date06 January 1987
Docket NumberNos. 85-1278,85-1681,s. 85-1278
Parties37 Ed. Law Rep. 1005, 12 Fla. L. Weekly 203 Sheila M. TIEDER and Richard J. Tieder, Administrators of the Estate of Trudi Beth Tieder, deceased, Appellants, v. Robert M. LITTLE and the University of Miami, a non-profit corporation, Appellees.
CourtCourt of Appeal of Florida (US)

Nancy Little Hoffmann, Fort Lauderdale, Bryan Scott Henry, Lauderhill, for appellants.

Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley and Lee P. Marks; Talburt, Kubicki, Bradley & Draper and Betsy E. Gallagher, Miami, for appellees.

Before HUBBART and PEARSON, DANIEL S., and FERGUSON, JJ.

HUBBART, Judge.

This is a consolidated appeal by the plaintiffs from (1) a final order dismissing a complaint as to one defendant, and (2) a final summary judgment entered in favor of a second defendant, in a wrongful death action. The trial court concluded that the defendants' alleged negligence was not, as a matter of law, a proximate cause of the death of the plaintiffs' decedent. For the reasons which follow, we disagree and reverse.

I

The facts of this case, as alleged in the operative complaint and as developed by the discovery and affidavits filed in the record, may be briefly stated as follows. It should be noted, however, that these facts are stated, as required by established case law, in a light most favorable to the plaintiffs, inasmuch as this appeal is taken from a dismissal of a complaint and an adverse final summary judgment. See, e.g., Pizzi v. Central Bank & Trust Co., 250 So.2d 895, 897 (Fla.1971); Holl v. Talcott, 191 So.2d 40 (Fla.1966).

On January 7, 1983, at approximately 9:00 P.M., the plaintiffs' decedent, Trudi Beth Tieder, was struck by an automobile, pinned up against a brick wall, and killed when the wall collapsed on her--as she walked out the front door of Eaton Hall dormitory on the University of Miami campus. At the time, two students were attempting to clutch-start an automobile in the circular drive in front of Eaton Hall--one student was pushing the car while the other student was in the car behind the wheel--when, suddenly, the student behind the wheel lost control of the car. The automobile left the circular driveway, lurched over a three-inch curb onto a grassy area, and travelled some thirty-three feet across the front lawn parallel to Eaton Hall. The automobile collided with an elevated walkway leading out of the front door of Eaton Hall, jumped onto the walkway, and struck the plaintiffs' decedent as she walked out the front door of the dormitory. The automobile continued forward, pinning the decedent against a high brick wall that supported a concrete canopy at the entrance to the dormitory. Because the wall was negligently designed and constructed without adequate supports required by the applicable building code, the entire wall came off intact from its foundation and crushed her to death. Dr. Joseph Davis, the Dade County Medical Examiner, averred by affidavit that in his opinion the decedent would not have died merely from the automobile impact; in his opinion, she died as a result of the brick wall falling intact and in one piece upon her. Two affidavits of professional engineers were also filed below detailing the negligent design and construction of the subject brick wall.

The plaintiffs Sheila M. Tieder and Richard J. Tieder, administrators of the estate of Trudi Beth Tieder, brought a wrongful death action against: (1) the owner and the operator of the automobile (not parties to this appeal), (2) Robert M. Little, the architect who designed the allegedly defective brick wall, and (3) the University of Miami, which caused the said brick wall to be erected and maintained. The amended complaint charged the defendant Little and the University of Miami with various acts of negligent conduct including negligence in the design and construction of the brick wall. The defendant Little moved to dismiss the complaint against him and urged that his alleged negligence was not, as a matter of law, the proximate cause of the decedent's death because the entire accident was so bizarre as to be entirely unforeseeable; the University of Miami moved for a summary judgment in its favor and made the same argument. The trial court agreed and granted both motions, relying in part on Food Fair, Inc. v. Gold, 464 So.2d 1228 (Fla. 3d DCA), pet. for rev. denied, 476 So.2d 673 (Fla.1985), and Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA 1961). The plaintiffs appeal.

II

It is settled law that to maintain a cause of action sounding in negligence, such as the wrongful death action herein, the plaintiff must plead and prove three elements:

(1) The existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff;

(2) A failure on the part of the defendant to perform that duty; and

(3) An injury or damage to the plaintiff proximately caused by such failure. 1

In the instant case, the parties appear to agree that, for complaint dismissal and summary judgment purposes, the first two elements of the plaintiff's negligence (wrongful death) action are shown on this record. It is solely the third element of "proximate cause" which is in dispute in this case. The defendants contended below, and the trial court agreed, that the defendants' negligence in designing and constructing the brick wall was not, as a matter of law, the proximate cause of the death of the plaintiffs' decedent. The plaintiffs, on the other hand, contend that the complaint alleges sufficient facts, and the record raises sufficient issues of material fact, that a jury issue is presented on the proximate cause element. It is therefore necessary to consult the applicable Florida law on "proximate cause" in negligence actions as applied to the facts presented herein.

A

At the outset, the "proximate cause" element of a negligence action embraces, as a sine qua non ingredient, a causation-in-fact test, that is, the defendant's negligence must be a cause-in-fact of the plaintiff's injuries. Generally speaking, Florida courts have followed a "but for" causation-in-fact test, that is, "to constitute proximate cause there must be such a natural, direct and continuous sequence between the negligent act [or omission] and the [plaintiff's] injury that it can be reasonably said that but for the [negligent] act [or omission] the injury would not have occurred." Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 230 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961), relying on Seaboard Air Line Ry. v. Mullin, 70 Fla. 450, 70 So. 467, 470 (1915). 2 There is, however, a "substantial factor" exception to the "but for" test where two causes concur to bring about an event in fact, either one of which would have been sufficient to cause the identical result. Stahl v. Metropolitan Dade County, 438 So.2d 14, 18-19 (Fla. 3d DCA 1983). In that narrow circumstance, it is settled that a "[d]efendant's conduct in an action for personal injuries is considered a cause [in fact] of the event if it was a material and substantial factor in bringing it about." Loftin v. Wilson, 67 So.2d 185, 191 (Fla.1953).

B

In addition to the causation-in-fact test, the "proximate cause" element of a negligence action includes a second indispensable showing. This showing is designed to protect defendants from tort liability for results which, although caused-in-fact by the defendant's negligent act or omission, seem to the judicial mind highly unusual, extraordinary, or bizarre, or, stated differently, seem beyond the scope of any fair assessment of the danger created by the defendant's negligence. The courts here have required a common sense, fairness showing that the accident in which the plaintiff suffered his injuries was within the scope of the danger created by the defendant's negligence, Stahl v. Metropolitan Dade County, 438 So.2d 14, 19 (Fla. 3d DCA 1983), or stated differently, that the said accident was a reasonably foreseeable consequence of the defendant's negligence. Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980); Cone v. InterCounty Telephone & Telegraph Co., 40 So.2d 148, 149 (Fla.1949); Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 229 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961).

It is not necessary, however, that the defendant foresee the exact sequence of events which led to the accident sued upon; it is only necessary that the general type of accident which has occurred was within the scope of the danger created by the defendant's negligence, or, stated differently, it must be shown that the said general-type accident was a reasonably foreseeable consequence of the defendant's negligence. Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980); K-Mart Enterprises of Florida, Inc. v. Keller, 439 So.2d 283, 286 (Fla. 3d DCA 1983), rev. denied, 450 So.2d 487 (Fla.1984); Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA), rev. denied sub. nom, City of Fort Pierce v. Crislip, 411 So.2d 380 (Fla.1981). For example, it has been held that injuries sustained by business patrons while attempting to escape from a fire in a cafeteria or a hotel were within the scope of the danger and a reasonably foreseeable consequence of the cafeteria or hotel's negligence in failing to have adequate fire exits--even though the exact sequence of events which led to the fire, namely, a mad arsonist setting the building aflame, was entirely unforeseeable. Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977); Mozer v. Semenza, 177 So.2d 880 (Fla. 3d DCA 1965). Moreover, it has long been held that "proximate cause" issues are generally for juries to decide using their common sense upon appropriate instructions, although occasionally when reasonable people cannot differ,...

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