Coudry v. City of Titusville

• Citation: 438 So.2d 197
• Decision Date: 06 October 1983
• Docket Number: No. 82-886,82-886
• Parties: Diane M. COUDRY and Thomas Coudry, her husband, Appellants, v. CITY OF TITUSVILLE, etc., and Insurance Company of North America, etc., Appellees.
• Court: Court of Appeal of Florida (US)

Page 197

438 So.2d 197

Diane M. COUDRY and Thomas Coudry, her husband, Appellants, v. CITY OF TITUSVILLE, etc., and Insurance Company of North America, etc., Appellees.

No. 82-886.

District Court of Appeal of Florida,

Fifth District.

Oct. 6, 1983.

Michael L. Reda of Cianfrogna, Telfer, Evans & Reda, P.A., Titusville, for appellants.

G.B. McVay Voght of Pitts, Eubanks & Ross, Orlando, for appellees.

COWART, Judge.

This case involves the question of whether under the facts of this case a city can be legally liable for injuries allegedly caused by a dangerous condition created in a city street by an independent contractor while constructing certain improvements under contract with the city and, if so, under what circumstances and what theory can the city be responsible.

In this case the city contracted with an independent contractor to construct certain improvements including surface water drains and sewers. Allegedly the contractor dug a ditch near the edge of a street and piled a mound of dirt in the street and left it without adequate barricades or warnings. Attempting to drive a vehicle between the dirt mound and the edge of the street the plaintiffs' vehicle slid into the ditch, struck a telephone pole and the plaintiff Diane Coudry was injured. The plaintiffs appeal from a summary judgment in favor of the city arguing that a city cannot delegate or relinquish its duty to maintain its streets and to keep them in safe repair. They rely on cases such as Woods v. City of Palatka, 63 So.2d 636 (Fla.1953), Singleton v. City of Jacksonville, 107 So.2d 47 (Fla. 1st DCA 1958), and Finkelstein v. Brooks Paving Company, 107 So.2d 205 (Fla. 3d DCA 1958), as support for this position. ¹

However, it can be seen from the plaintiff's own pleadings that this case does not involve injuries resulting from a defect in the street and does not involve injuries resulting from a breach of a city's duty to make repairs to its street in order to eliminate an unsafe condition caused by defects in the street. Nor does it involve a case where a city is attempting to avoid its own responsibility for injuries resulting from its failure to repair street defects by trying to place responsibility on a contractor it has hired to correct these same defects for which it is already responsible. Therefore the quoted rule of law and the cases cited in support of it, are inapplicable to this case. Here, the dangerous condition was allegedly affirmatively created by the independent contractor while performing work under a contract with the city. The independent contractor remains a defendant in the pending action. The public street is the mere situs of the dangerous condition allegedly created by the contractor. The situation here is analogous to where a gas company or telephone company or anyone else hires an independent contractor to lay a gas pipe line or a cable or build anything. The gas company, telephone company or other contracting party would not be liable for the negligence of its independent contractor who, in performing its contract, created the exact dangerous condition alleged in this case to have been created by the city's independent contractor. Nor would the city wherein the independent contractor was working, be liable for the negligence of such independent contractor merely because the dangerous condition was created on or in one of its streets. The fact that here the city is both the entity that contracted with the independent contractor to do construction work and was also the governmental owner of the public street does not create a liability that does not follow from either circumstance alone.

While a city is liable for injuries resulting from defects in its streets resulting from its failure to maintain them in accordance with their original design ² and for its own negligence in failing to eliminate such defects by making repairs (and remains liable for such injuries notwithstanding that faulty maintenance or repair efforts made by the city or its contractor fail to correct such defects) 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. In our existing society it is absolutely essential that many entities, private, quasi public and public, construct and maintain in, on, under and above streets, roads and highways a vast number of pipes for transmission of drinking water, surface drainage water, waste water, raw sewage, treated sewage effluent, gas, oil and other fluids and cables for electricity and telephone and other power and communication transmission systems. The mere fact that a city or other governmental entity owning the street or road gives permission for normal construction activities to occur should not be held to thereby place a duty on the city to constantly supervise all activity of others in order to prevent, or warn the traveling public of, all danger resulting from such construction activity. The liability of the contractor should be enough. Otherwise the city is, effectively, being made a surety or insurer of safety as to all construction work in, along or across all of its streets. Rather than assume such responsibility and liability the city would naturally and normally just deny permission for such work or impose oppressive and suppressive conditions on contractors contrary to the interests of the public in having the construction work performed. Alleging first that it was the city's agents that created the alleged dangerous and unsafe condition the plaintiffs in paragraph 12 of their second amended complaint also alleged generally that the city "had a duty to warn members of the public of potentially dangerous and unsafe conditions on its streets or rights of way contiguous to the streets involved." We do not necessarily agree that the city had such a broad duty unqualified as to whether or not the city knew of the alleged dangerous condition. Assuming, however, that a city has a duty to warn motorists of known dangerous conditions created by the negligence of third parties in the area of a public street, surely a general warning, such as "This city warns motorists that city streets are potentially dangerous and unsafe" would be totally inadequate.

The shopkeeper or storeowner has a duty to periodically survey the limited area of his business premises to ascertain that they remain safe for business invitees if it is foreseeable that a dangerous condition may have been caused by third parties such as other business invitees. By analogy does a city owe a comparable duty to make itself aware of, and to eliminate or warn of, all dangerous conditions created by third parties on all city streets? If a city is to be held to such a duty, it would likewise be entitled to a reasonable time to take action to learn of dangerous conditions and to either abate them or warn or otherwise protect motorists from them. In this particular the summary judgment is correct because the second amended complaint fails to allege that the dangerous condition was known to the defendant city or had existed for a sufficient length of time so that the defendant city should have known of it, assuming, without here deciding, that it had a duty to learn.

While a city cannot, by delegating its duties to maintain and repair to an independent contractor, exonerate or insulate itself from responsibility for injuries caused by defects in streets for which it is liable, nevertheless, the same as anyone...