Krol v. City of Orlando

• Decision Date: 23 February 2001
• Docket Number: No. 5D00-209.,5D00-209.
• Citation: 778 So.2d 490
• Parties: Theresa KROL, et al., Appellants, v. CITY OF ORLANDO, Appellee.
• Court: Florida District Court of Appeals

778 So.2d 490

Theresa KROL, et al., Appellants, v. CITY OF ORLANDO, Appellee.

No. 5D00-209.

District Court of Appeal of Florida, Fifth District.

February 23, 2001.

Marc Jay Tannen of Abrams Anton, P.A., Hollywood, for Appellants.

Launa K. Rutherford and Jeremy K. Markman of Grower, Ketcham, More, Rutherford, Noecker, Bronson & Eide, P.A., Orlando, for Appellee.

SAWAYA, J.

The appellants, Robert and Theresa Krol, appeal a summary judgment entered in their personal injury lawsuit in favor of the appellee, City of Orlando (the City). The trial court entered summary judgment finding "that the City's decision to install a particular open throat storm drain with a particular alignment is a judgmental planning level function for which absolute immunity attaches." The trial court also held that the storm drain was open and obvious and summary judgment was appropriate as a matter of law pursuant to the decision in Rosenfeld v. Walt Disney World Co., 651 So.2d 811 (Fla. 5th DCA 1995) and its ancestry. We reverse.

There are two distinct issues that we must resolve in determining whether summary judgment is appropriate: 1) whether the sovereign, the City, is immune from liability and 2) whether judgment in favor of the City is appropriate as a matter of law pursuant to the obvious danger doctrine. We will discuss in separate sections of this opinion the following: the factual background of the instant case; the standard of review; the doctrine of sovereign immunity as it applies to the instant case; and the obvious danger doctrine.

Factual Background

This case originated when Theresa stepped off a median into an open storm water drain situated on Garland Avenue in the Church Street Station area of the City. As a result, she fell and broke her ankle. At the time Theresa stepped down from the median, it was dark and it had been lightly raining.

Karl McClary, the Supervisor of Storm Water Management for the City, testified that the City is responsible for maintaining the drainage systems on Garland Avenue and that the levels or slopes of throat openings vary depending on the "hydrology" (waterflow) of the particular location. The pictures of the particular drain that caused this incident show that as pedestrians step down from the sidewalk, they step directly onto a severely sloped area or plank of concrete leading directly into the drain opening which is reported to be slippery when wet. The pictures also show that this particular drain opening may be difficult to see as pedestrians approach the location.

Mr. McClary also testified that the drains located across the street from the location where Theresa fell had grate covers over them which prevented pedestrians from stepping into the throat of the drains. The pictures of these particular drains show that a corrugated metal plate has been placed on the curb over each drain opening in order to extend the location of any step down from the curb onto the road beyond the slope of the drain opening. In addition, some pictures showed that a corrugated metal plate was placed on the roadway over the sloped plank of concrete to make a level area for the pedestrian to step onto. These covered drains are maintained by Church Street Station.

Frank Occhipanti, a Construction Manager for Church Street Station, testified that he was involved in the decision to place the corrugated metal plates on the storm drains maintained by Church Street Station. He testified that he thought these corrective measures were necessary because the drain openings were too large and they presented a potential danger to pedestrians. He further testified that the City had been made aware of these corrective measures. Testimony in the record also reveals that the Director of Public Works for the City received a request from Church Street Station for authorization to modify the inlets to their storm drains with the corrugated metal plates and that the City gave its authorization. The testimony of the Bureau Chief for Project Construction for the City was that he knew of no other reason why Church Street Station would place metal coverings over their storm drains other than to protect pedestrians from stepping into them.

Standard Of Review

The proper standard of review of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000). In order to determine the propriety of a summary judgment, this court must resolve whether there is any "genuine issue as to any material fact" and whether "the moving party is entitled to a judgment as a matter of law." Fla.R.Civ.P. 1.510(c). Generally, "[t]he party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact." City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). We must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party, the Appellants, and if the slightest doubt exists, the summary judgment must be reversed. See Sierra. We will apply this standard of review to each issue, beginning with the issue relating to sovereign immunity.

Sovereign Immunity

There has been much litigation against governmental entities relating to injuries incurred by citizens utilizing capital improvements. As a result, some general principles have emerged from the case law. One principle provides that planning and designing capital improvements are discretionary functions of government which are immune from tort liability and do not fall within the ambit of the waiver provisions of section 768.28, Florida Statutes (Supp.1996). See Perez v. Department of Transp., 435 So.2d 830 (Fla.1983)

; Department of Transp. v. Neilson, 419 So.2d 1071 (Fla.1982); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982). It is this general principle that the trial court utilized to impose summary judgment against the Appellants in the instant case.

There is, however, an exception to the general rule of immunity regarding decisions relating to the planning and designing of capital improvements that the trial court failed to apply. This exception provides that once a governmental entity creates a known dangerous condition which may not be readily apparent to those who could be injured by it, then the government must take steps to correct the dangerous condition or warn those who may be injured by it. Bailey Drainage Dist. v. Stark, 526 So.2d 678 (Fla.1988); Collom, Neilson. The court in Collom explained, "[W]e find it unreasonable to presume that a governmental entity, as a matter of policy in making a judgmental, planning-level decision, should knowingly create a trap or a dangerous condition and intentionally fail to warn or protect the users of that improvement from the risk." 419 So.2d at 1086. Generally, the courts speak in terms of a known danger when they enunciate the exception. However, actual or constructive knowledge will suffice. Allen v. Port Everglades Auth., 553 So.2d 1341 (Fla. 4th DCA 1989); Feldstein v. City of Key West, 512 So.2d 217, 219 n. 5 (Fla. 3d DCA 1987).

The testimony in the record reveals that the City was notified by Church Street Station that a potential dangerous condition may exist regarding the storm drains in that area and that Church Street Station intended to modify its storm drains to correct the problem. We conclude that this evidence raises a disputed issue of material fact, namely whether application of the exception to the rule of immunity relating to planning and designing capital improvements is appropriate in the instant case. We next turn to the obvious danger doctrine.

The Obvious Danger Doctrine

The first inquiry in a negligence action is whether the defendant owed a duty to the plaintiff. Under the facts of this case, Theresa occupies the status of an invitee. This court has consistently held that the duty owed to invitees is 1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely warning of latent or concealed perils which are known or should be known by the owner or occupier. Spaulding v. City of Melbourne, 473 So.2d 226 (Fla. 5th DCA 1985); Hylazewski v. Wet `N Wild, Inc., 432 So.2d 1371 (Fla. 5th DCA 1983); Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980); see also Milton v. Broxson, 514 So.2d 1116 (Fla. 1st DCA 1987)

; Lynch v. Brown, 489 So.2d 65 (Fla. 1st DCA 1986); Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981).

The City contends that the condition of the premises which caused Theresa's injury is neither latent nor concealed but rather open and obvious. Therefore, the City argues that the legal duty owed to Theresa as an invitee does not require it to give notice or warning of this obvious condition. The City asserts that this court's decisions in Rosenfeld and Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA 1992), support application of the obvious danger doctrine in the instant case.

The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that the invitee will perceive that which would be obvious to them upon the ordinary use of their own senses.¹ Aventura Mall Venture v. Olson, 561 So.2d 319 (Fla. 3d DCA 1990); Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990); see also Rosenfeld; Gorin.

This court and others have applied this doctrine to myriad factual situations in which the conditions that caused the injury were "simply so open and obvious, so common and so ordinarily innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition." Circle K Convenience Stores, Inc., 556 So.2d at 1208 (finding that an uneven parking lot surface located at a convenience store does not constitute a hidden dangerous condition); see also Casby v....