Acosta v. City of Hialeah

• Decision Date: 21 March 2001
• Docket Number: No. 3D00-958.,3D00-958.
• Parties: Migdalia ACOSTA and Cecilio Acosta, Appellants, v. CITY OF HIALEAH, Florida, Appellee.
• Court: Florida District Court of Appeals

780 So.2d 300

Migdalia ACOSTA and Cecilio Acosta, Appellants, v. CITY OF HIALEAH, Florida, Appellee.

No. 3D00-958.

District Court of Appeal of Florida, Third District.

March 21, 2001.

Friedman & Friedman and John S. Seligman; Lauri Waldman Ross and Theresa L. Girten, for appellants.

William M. Grodnick and Alan Krueger; Akerman, Senterfitt & Eidson and Nina K. Brown and D.A. Jeremy Telman, for appellees.

Before SCHWARTZ, C.J. and GODERICH and FLETCHER, JJ.

FLETCHER, Judge.

Migdalia and Cecelio Acosta appeal a summary judgment in favor of the City of Hialeah in a slip-and-fall action. We reverse.

After picking up her grandchildren who were attending summer camp at the YMCA in Hialeah, Mrs. Acosta attempted to walk across a paved swale area to get to her car which she had parked in the parking lot of an adjacent commercial building. In doing so, she fell after stepping into one of several potholes in the area which had been filled with water from a recent rain storm. Mrs. Acosta and her husband subsequently filed this action against the owner of the commercial building and the City of Hialeah for their negligent failure to inspect, maintain and repair the area where she fell. At his deposition, the City's superintendent of streets identified the area where Mrs. Acosta fell as a swale area within the public right-of-way. He testified that the City had neither paved the area nor issued a permit authorizing its pavement. Although the superintendent further stated that swales are typically maintained by the adjacent property owner, he admitted that if notified the City would have repaired any potholes in the area.

The City contends that the trial court properly granted summary judgment relieving it from responsibility for two reasons: (1) because, as a matter of law, it cannot be responsible for an area illegally paved over by a third party, and (2) because it had no notice of any defect. We conclude that neither of these reasons is appropriate for entry of the summary judgment under the circumstances.

We recently held in Jauma v. City of Hialeah, 758 So.2d 696 (Fla. 3d DCA 2000) that the City had a non-delegable duty to maintain its roads, sidewalks, and rights-of-way in a reasonably safe condition even where the defective condition was created by a third party.¹ Likewise, the fact that a third party's paving of the area in question herein may have contributed to the defective condition does not relieve the City of its duty to maintain its right-of-way. See also Camillo v. Dep't of Transp., 546 So.2d 4 (Fla. 3d DCA 1988)

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