Bovio v. City of Miami Springs

• Decision Date: 26 April 1988
• Docket Number: No. 86-2777,86-2777
• Citation: 523 So.2d 1247,13 Fla. L. Weekly 1023
• Parties: 13 Fla. L. Weekly 1023 Frances BOVIO and Alex Bovio, Appellants, v. The CITY OF MIAMI SPRINGS, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 1247

523 So.2d 1247

13 Fla. L. Weekly 1023

Frances BOVIO and Alex Bovio, Appellants, v. The CITY OF MIAMI SPRINGS, a municipal corporation, Appellee.

No. 86-2777.

District Court of Appeal of Florida Third District.

April 26, 1988.

Paul J. Kneski, Miami, for appellants.

Weintraub, Weintraub, Seiden, Press & Orshan and Eliot R. Weitzman, Miami, for appellee.

Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.

JORGENSON, Judge.

Frances and Alex Bovio appeal from a summary final judgment entered in favor of the City of Miami Springs. We affirm based upon our finding, as a matter of law, that the city fulfilled its duty toward Bovio.

Frances Bovio was standing on a Miami Springs city sidewalk waiting to cross the street when an out-of-control automobile collided with a newspaper vending machine situated on the sidewalk in a group of several newspaper dispensers. The impact catapulted the machine against Frances Bovio, and she was seriously injured. Bovio and her husband brought a negligence action against the city, alleging improper maintenance of the sidewalk. ¹ The trial court granted the city's motion for summary final judgment.

The Bovios claim on appeal that the trial court erred in granting summary final judgment for the city where substantial issues of material fact have not been resolved. The Bovios argue that the owner of the newspaper vending machine properly requested and received permission from the city to place its machine on the sidewalk and that the city, therefore, violated its own ordinance governing the placement of newspaper vending machines "in such a manner as not to obstruct traffic." ² However the city's alleged failure to enforce its ordinance cannot serve as a predicate for the Bovios' negligence action since a city owes no tort duty to any specific individual to enforce its laws and is not liable to any individual due to its failure to do so. Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912, 919 (Fla.1985); Everton v. Willard, 468 So.2d 936, 938 (Fla.1985); Carter v. City of Stuart, 468 So.2d 955, 957 (Fla.1985). The city's liability turns on its common law duty to maintain its sidewalks; thus, the dispute between the city and the Bovios concerning the city's authorization of the placement of the vending machine and the question of whether the city enjoys sovereign immunity for its decision on the placement of such machines are not genuine issues of material fact which preclude a summary disposition of this cause.

We also disagree with the Bovios' contention that the question of the placement of the newspaper dispenser constitutes a genuine issue of material fact. Pursuant to established principles of negligence, a city has a duty to maintain its streets and sidewalks in a reasonably safe condition. However, it is not an insurer of the safety of pedestrians who traverse its streets. Mullis v. City of Miami, 60 So.2d 174 (Fla.1952); City of St. Petersburg v. Roach, 148 Fla. 316, 4 So.2d 367 (1941); Leon v. City of Miami, 312 So.2d 518 (Fla. 3d DCA 1975); Schutzer v. City of Miami, 105 So.2d 492 (Fla. 3d DCA 1958). In our view, the city did not breach any duty owed to Bovio in permitting a newspaper dispenser to be placed on the sidewalk. The newspaper dispenser did not represent a defective condition in the sidewalk notwithstanding the Bovios' allegation that the vending machine was inadequately secured. The cases cited by the Bovios are inapposite since they involve defective conditions on the sidewalks which occasioned the plaintiffs' injuries, e.g., overgrown foliage which obstructed stop sign, Armas v. Metropolitan Dade County, 429 So.2d 59 (Fla. 3d DCA 1983); iron rods extending over sidewalk, State Dept. of Transp. v. Kennedy, 429 So.2d 1210 (Fla. 2d DCA 1983). The above conditions are wholly dissimilar to a newspaper dispenser positioned on a sidewalk along with other newspaper dispensers. It was not the newspaper dispenser qua dispenser which injured Bovio; rather, an out-of-control automobile turned the newspaper dispenser into a projectile which, in turn, forcefully struck and injured Bovio. The city cannot be regarded as having created a dangerous condition by permitting a newspaper dispenser to remain on a sidewalk in a busy intersection. See Barnes v. Gulf Power Co., 517 So.2d 717 (Fla. 1st DCA 1987) (Ervin, J., specially concurring) (where telephone repairmen were forced to complete job after dark due to power company's delay in repairing electrical lines and were attacked by unknown assailants at jobsite, power company's conduct could not be considered substantial factor in bringing about harm suffered; summary judgment for power company affirmed); Huff v. Goldcoast Jet Ski Rentals, Inc., 515 So.2d 1349 (Fla. 4th DCA 1987) (city did not create dangerous condition by issuing license to operate jet ski rental business; to hold city liable because it knew or should have known that some person might operate a ski or a boat at such a speed as to create a wake and endanger other boaters is "an unjustified quantum leap we decline to take."); Coudry v. City of Titusville, 438 So.2d 197, 199 (Fla. 5th DCA 1983) (city's right to inspect work of independent contractor did not change city into active participant liable for negligence; "the city is not an insurer against the independent negligent acts of others, including its own independent contractor, merely because their negligence occurs on or in a city street.").

Because we find as a matter of law that the city committed no breach of duty, we decline to reach the foreseeability argument advanced by the Bovios. We, therefore, affirm the summary final judgment entered in favor of Miami Springs.

Affirmed.

DANIEL S. PEARSON, J., concurs.

NESBITT, Judge (dissentin...