City of Sarasota v. Eppard, 83-1883

• Decision Date: 12 September 1984
• Docket Number: No. 83-1883,83-1883
• Citation: 455 So.2d 623
• Parties: CITY OF SARASOTA, Appellant, v. Brenda K. EPPARD, Appellee.
• Court: Florida District Court of Appeals

Page 623

455 So.2d 623

CITY OF SARASOTA, Appellant, v. Brenda K. EPPARD, Appellee.

No. 83-1883.

District Court of Appeal of Florida,

Second District.

Sept. 12, 1984.

Douglas P. Lawless of Hereford, Taylor & Lawless, Sarasota, for appellant.

Michael R. Karp of Wood, Whitesell, Karp, Wellbaum, Miller & Seitl, P.A., Sarasota, for appellee.

SCHOONOVER, Judge.

The City of Sarasota, Florida, has appealed from an adverse final judgment in a personal injury action. We find that appellant did not breach any duty owed to the appellee, Brenda K. Eppard, and therefore reverse.

This action arose out of an automobile accident occurring in Sarasota, Florida, at approximately 5:00 a.m. on September 20 1979. Appellee and her two passengers were on their way home from an all-night bottle club when appellee drove her car into a bridge controlled and maintained by appellant.

At the location of the accident, a curb ran parallel to the road approaching the bridge, and a grass shoulder dropped off from the roadway down into a bayou. The City of Sarasota possessed, controlled, and maintained the bridge, road, curb, and shoulder for approximately twenty years prior to the accident. During that time the city did not make any changes within one hundred feet of the bridge.

All accidents within the city of Sarasota were reported to the city's engineering department. For the more than seventeen years that the city engineer was employed by the city, the department received no reports of any other accidents occuring at the heavily traveled location.

During the course of the trial, appellee testified that she was familiar with the area but that at the time of the accident she did not notice the thirty-six inch guardrail on the bridge or the bridge itself. She also testified that she did not jump the curb with her automobile but apparently veered off to the right and hit the railing. Her two passengers did not testify.

Appellee's expert testified that in his opinion the automobile, while approaching the bridge, went off the edge of the roadway over the curb, and its wheels dropped into a depressed area. This action prevented appellee from recovering control. The curb then guided the automobile into the bridge abutment.

Appellant's motion for a directed verdict at the close of appellee's case-in-chief, renewed at the close of all the evidence, was denied. Thereafter, the jury returned a verdict in favor of appellee. Appellant then filed a timely notice of appeal from the judgment entered pursuant to the jury's verdict.

We find the trial court erred in denying appellant's motion for directed verdict. Appellee claims that the city breached its duty to warn her of a dangerous condition that was created due to, among other things, the city's failure to install proper warning devices and failure to keep the grass at a height that would prevent obstruction of a driver's view. We agree that if a municipality has actual or constructive knowledge of a dangerous condition, it has a duty to warn the public of, or protect them from, such a condition. City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982); Town of Belleair v. Taylor, 425 So.2d 669 (Fla. 2d DCA 1983); State, Department of Transportation v. Manning, 288 So.2d 289 (Fla. 2d DCA 1974), cert. denied, 295 So.2d 307 (Fla.1974); City of Jacksonville v. DeRay, 418 So.2d 1035 (Fla. 1st DCA 1982), cert. denied, 429 So.2d 5 (Fla.1983); Hodges v. City of Winter Park, 433 So.2d 1257 (Fla. 5th DCA 1983), cert. denied, 444 So.2d 416 (Fla.1984). But even where there is a duty to exercise the highest degree of care, the possessor of the duty is required to guard against only those occurrences that can reasonably be anticipated through use of the utmost foresight. Stark v. Holtzclaw, ...