City of Tamarac v. Garchar

• Decision Date: 01 May 1981
• Docket Number: 77-98,Nos. 77-97,s. 77-97
• Citation: 398 So.2d 889
• Parties: CITY OF TAMARAC, a Municipal Corporation, Appellant, v. Thomas John GARCHAR and Karen Garchar, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 889

398 So.2d 889

CITY OF TAMARAC, a Municipal Corporation, Appellant, v. Thomas John GARCHAR and Karen Garchar, his wife, Appellees.

Nos. 77-97, 77-98.

District Court of Appeal of Florida, Fourth District.

May 1, 1981.

Rehearing Denied June 11, 1981.

Sam Daniels of Daniels & Hicks, Miami, Druck, Grimmett, Scherer & James and Nancy Hoffmann, Fort Lauderdale, for appellant.

Rex Conrad of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellees.

ON PETITION FOR REHEARING

EN BANC.

The petition for rehearing is hereby granted and the following opinion issued En Banc.

This is an appeal by the defendant, City of Tamarac, from final judgments in favor of the plaintiffs, Thomas Garchar and Karen Garchar, in a personal injury action. Mr. Garchar was severely injured when his automobile struck a large boulder located on a median strip dividing a roadway. The suit was brought against defendants, Broward County, Leadership Housing Corporation, and the City of Tamarac. It was generally alleged that the County had negligently designed and constructed the road and that the City had negligently failed to remove the boulder and had improperly maintained the road and median strip. Leadership Housing Corporation (Leadership) was alleged to have negligently placed the boulder in the median strip knowing it to be dangerous.

On August 5, 1974, Mr. Garchar was driving his car on University Drive within the municipal limits of the City of Tamarac. The vehicle left the roadway and struck a large coral rock which was located at the beginning of the center median strip. Mr. Garchar sustained severe spinal cord injuries and at the time of trial was a quadriplegic. The accident occurred a few blocks from Mr. Garchar's residence and he was familiar with the highway. The coral boulder was located within six feet of the edge of the paved surface of the road and was one of several such boulders placed on the median strip by Leadership, a developer, as part of a project to beautify the median strips. The beautification project was pursuant to a city plan and agreement. The roadway was initially constructed by Broward County during the period of 1970-1972.

At trial a settlement was reached between the Garchars, Broward County and Leadership. The settlement amounted to $1,150,000 and was allocated $400,000 to Mr. Garchar's claim and $750,000 to Mrs. Garchar's claim for loss of consortium. This settlement left the City of Tamarac and its insurance carriers as the only remaining defendants.

The jury found the City of Tamarac 70% negligent and Mr. Garchar 30% negligent. The jury further found Mr. Garchar's damages to be $6,000,000 and Mrs. Garchar's damages to be $750,000. The jury's verdict applied the 30% comparative negligence finding and reduced Mr. Garchar's award to $4,200,000 and his wife's award to $525,000. ¹ In post-trial proceedings the judgment for Mrs. Garchar was ordered satisfied because the $750,000 settlement allocation between her and the settling defendants exceeded her adjusted verdict of $525,000 by some $225,000. The trial court denied a request by the City to set-off the $225,000 excess against Mr. Garchar's award. Mr. Garchar's award of $4,200,000 amounted to $3,800,000 after it was reduced by a $400,000 set-off based on his settlement.

One of the insurance carriers of the City of Tamarac paid $300,000, leaving a balance due of $3,500,000. The City filed post-trial motions for remittitur, for new trial, and renewed its motion for directed verdict. All of these post-trial motions were denied and the City appeals the final judgments entered in favor of Mr. and Mrs. Garchar, respectively.

The appellant City raises the following five points:

I. Whether the City of Tamarac owed Mr. Garchar a duty to provide a crashworthy median strip?

II. Whether the trial court committed reversible error in denying the City's requested jury instructions regarding alleged statutory violations by the plaintiff?

III. Whether the trial court correctly held inadmissible a statement by Mr. Garchar made in the hospital emergency room before the investigating police officer?

IV. Whether the $6,000,000 verdict is excessive?

V. Whether the trial court correctly held that $225,000 of the sums paid by the settling defendants could not be applied to reduce Mr. Garchar's judgment?

We conclude that reversible error has been demonstrated and remand for a new trial on liability. In view of this remand, it is necessary for us to consider and rule upon all issues presented.

I.

As to Point I, we agree with appellant that there is no duty required of a public authority to provide a crashworthy median strip; however, this is simply not the issue presented in this case. The plaintiffs' theory of liability against the City was not that the City had failed to provide a crashworthy median strip. Instead, plaintiffs allege that the City had assumed the care and control of the median strip and roadway and that the boulder placed at the head of the median strip constituted an intentionally placed hazard or trap. They further alleged that: (1) the road had been improperly designed, built and maintained so that vehicular traffic was channelled or led into the median strip; (2) the City knew this and therefore, together with the developer, (Leadership), was responsible for the boulder being placed in a position so that cars would either hit the boulder or (if they saw it) avoid the boulder and also avoid the median strip; (3) the boulder was meant to be a barrier rather than a step in beautification; (4) the City officials knew the boulder was dangerous because they knew its purpose; and (5) the danger had even been discussed at public City meetings.

We find ample evidence supporting the plaintiffs' theory of liability as enunciated above. The roadway where the accident happened was a divided highway with a grass median strip in the middle. Although wide enough for two lanes plus a turn lane, there were in fact no traffic or turn lanes marked. The boulder was located at the head of the median strip where an approaching turn lane abruptly ended. There was no road at this break in the median and no need for that turn lane which was unmarked. The roadway was initially built by the County and the area later annexed into the City. From the time of annexation the City exercised control over the roadway and the median strips. The City placed street lights in the area and installed stop signs. The City roped off and barricaded certain areas of the median strips to keep traffic off. The boulder was placed there for the same purpose. A City ordinance controlled the creation of breaks in the median strip and required a City permit for the creation of a break. A City ordinance also prohibited parking or driving on the medians. The City Director of Public Safety assumed responsibility for safety evaluation of the medians and under his direction City employees removed and trimmed bushes and trees in the median which were felt to constitute hazards to traffic. The City mowed and maintained the medians and entered into a contract with the developer Leadership for beautification of the medians. A City "beautification" committee supervised the beautification project which included safety considerations.

After the landscaping was completed, the City refused to accept certain portions and a dispute occurred between the City and the developer concerning areas where vehicular encroachment had damaged grass and shrubbery on the medians. At the site of the accident, cars routinely ran off the edge of the road onto the median preventing grass from growing along a narrow strip. Because of its dispute with the developer, the City refused to resume maintenance of this particular area. To expedite City approval and take-over of maintenance, the developer placed large boulders where the damaged grass indicated motorists often strayed. The City beautification committee was aware of the boulders and reported to the City Manager and City Council that they were dangerous to motorists. The City's consulting engineer recognized the hazard to vehicular safety and reported such to the City Manager. At trial the Director of Public Safety testified he was aware that the boulders were placed at the ends of the medians where there were no lane markings on the road. The dispute between City and developer continued and for several months preceding the accident, neither the City nor the developer was caring for the accident site. The boulder remained in its hazardous position at the head of the abruptly widened median.

There was evidence that the road had been improperly designed and maintained. The misdesign had the effect of channelling vehicular traffic onto the median strip. ² In view of the road configuration, cars continually ran over the median strip damaging the grass. To protect the grass the boulder was installed. As we indicated earlier, there was clear evidence from which the jury could have found that the City knew and appreciated the extent of the danger. Indeed, this was arguably the intentional creation of a dangerous condition rather than a mere negligent act.

It is clear that governmental entities may have a duty to exercise reasonable care to maintain travelled portions of highways in a safe condition. Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975). Appellant relies upon City of Tallahassee v. Coles, 148 Fla. 606, 4 So.2d 874 (1941); City of Miami Beach v. Quinn, 149 Fla. 326, 5 So.2d 593 (1942); City of Fort Lauderdale v. Duchine, 70 So.2d 897 (Fla.1954), and other similar cases holding that a City owes no duty to provide pedestrians with reasonably safe parkways and roadways. Appellant reasons that if a median strip need not be made safe to walk upon, then it surely need not be made safe to drive upon. This leads to appellant's first point on appeal asserting the non-existence of any duty to provide crashworthy areas adjacent to roadways. Such...