CSX Transp., Inc. v. Whittler
| Decision Date | 17 July 1991 |
| Docket Number | Nos. 89-0033,89-0112 and 90-2390,s. 89-0033 |
| Citation | 584 So.2d 579 |
| Parties | CSX TRANSPORTATION, INC. and City of West Palm Beach, Appellants, v. Jerry C. WHITTLER and Marsha Whittler, his wife, and Paul L. Maddock, Jr., and Judith Cady Maddock, as Personal Representatives of the Estate of Paul L. Maddock, Sr., Appellees. 584 So.2d 579, 16 Fla. L. Week. D1839 |
| Court | Florida District Court of Appeals |
John Wilbur of Coe & Broberg, Palm Beach and John Beranek of Aurell Radey, Hinkle & Thomas, Tallahassee, for appellant-CSX Transp., Inc.
Charles W. Musgrove, West Palm Beach, for appellant-City of West Palm Beach.
Richard D. Schuler of Schuler Wilkerson & Halvorson, P.A., and Philip M. Burlington, of Edna L. Caruso, P.A., West Palm Beach, for appellees-Jerry and Marsha Whittler.
Robert G. Merkel of Adams Coogler Watson & Merkel, P.A., and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., West Palm Beach, for appellees-Paul L. Maddock, Jr., and Judith Cady Maddock, as Personal Representatives of the Estate of Paul L. Maddock, Sr.
This appeal arises out of a negligence action in which the jury awarded appellees, Jerry C. and Marsha Whittler, damages for personal injuries Mr. Whittler suffered while working for CSX Transportation, Inc. ("CSX"), when he was struck by a van owned by the City of West Palm Beach ("the city"). We affirm.
At the direction of his supervisor, Whittler drove a CSX vehicle to a private motor vehicle repair garage on Elizabeth Avenue in West Palm Beach for repair of the vehicle. The CSX supervisor had visited the garage on previous occasions and had contracted with its personnel for service and repair of CSX vehicles. Another CSX employee followed Whittler in a separate vehicle to provide Whittler transportation back to his work site. When Whittler reached the garage, a tow truck was parked in the entrance to the premises. The coworker parked across the street and remained in the vehicle. When the garage personnel told Whittler that they could not begin repairs for at least an hour, Whittler walked outside to convey this information to his coworker. Whittler testified that as he walked across the parking lot of the garage he saw his coworker on the driver's side in a reclining position, perhaps asleep. He shouted but the coworker did not respond. Whittler then approached the street curb at a point immediately adjacent to a large city-owned garbage dumpster to again attempt to shout to his coworker. At this point Whittler was suddenly struck in the head by an oncoming city van approaching from the other side of the dumpster. Whittler denied ever intending to cross the street or leave the curb. He recalled that he was standing beside the dumpster, approximately two to three feet behind the curb, just before he was hit. Both the van driver and Whittler denied seeing the other before the actual impact.
Whittler sued CSX, the city, and the owner of the garage. Whittler claimed CSX was negligent by failing to provide him with a reasonably safe place to work, i.e., the garage premises, and by his coemployee's failing to warn him of the approaching van. Whittler sued the city on two theories of negligence: one was the city's liability for its employee who drove the vehicle which struck him; and another was its replacing the dumpster in a location which obstructed the vision of motorists and pedestrians. Whittler also sought recovery from the garage owners for placement of the dumpster.
The jury returned a verdict in Whittler's favor and apportioned responsibility as follows:
Whittler 27%
CSX 35%
Garage Owner 2%
City re: conduct of van driver 0%
City re: placement of dumpster 36%
A judgment was entered on this verdict, and another was entered in favor of the garage owner for indemnity against the city.
The city asserts error in the court's denial of its motion for directed verdict on sovereign immunity grounds, and also contends that the position of the dumpster was open and obvious, thereby warranting judgment in its favor as a matter of law.
When the accident occurred, the dumpster was located on the public right-of-way, about a foot away from the curb adjacent to the garage premises. It is uncontroverted that while standing beside the eight-foot tall, four-foot wide dumpster, Whittler could neither see nor be seen by oncoming traffic. Over a period of time, the dumpster had "moved" from its original location on the private garage premises toward the street and onto the sidewalk. On one occasion, this movement prompted a request by the garage that the city return the dumpster to its original location away from the curb. Within a few days, the city complied with this request. However, with the passage of time, the dumpster again "moved" back onto the sidewalk and remained there for several years before the accident.
The duty of placing dumpsters throughout the city rested with the city sanitation department. The city's superintendent of sanitation admitted that the dumpster was improperly placed on the public right-of-way. A former director of public works testified that in placing the dumpster on a public right-of-way, the city violated its own code provisions. These provisions required the city to place dumpsters on private property unless it secured permission The city was the only entity legally authorized to remove the dumpster in question. A dumpmaster driver for the city, who at one time serviced the Elizabeth Avenue section, testified to having seen dumpsters located next to the curb on the grassy strip between the curb and the sidewalk. The city used specialized equipment to pick up, empty, and replace the dumpsters. Garbage truck drivers were instructed not to place the dumpsters between the sidewalk and the curb. Any driver who noted that a dumpster was in the wrong place was required to notify his supervisor and request direction as to its possible removal.
from the director of public works to place them on public property like the right-of-way. One objective underlying the code provision was to ensure the unobstructed vision of pedestrians and motorists. A trial witness who began working at one of the three businesses on the premises ten days before the accident testified that in that short time she had experienced several near accidents as she exited the driveway because the dumpster had obstructed her vision. A seven-year employee of another business on the premises testified that the dumpster was always located very close to the road
In City of Delray Beach v. Watts, 461 So.2d 142 (Fla. 4th DCA 1984), we reversed a judgment against a city and held that the placement of a garbage dumpster was a planning level decision, and an open and obvious condition requiring judgment for the city as a matter of law. While the opinion may have been directed only to the initial placement of the dumpster, we cannot discern that fact from the face of the opinion. No factual circumstances are set out in the opinion. However, we conclude here that the negligent moving and replacing of a dumpster to an unsafe position does not constitute a planning level activity. Rather, in our view, the act or omission by the dumpmaster driver in placing the dumpster in a hazardous position on the public right-of-way in violation of the city code, constituted operational level conduct by those employees. We see little difference between the alleged misconduct here and a situation where a dumpmaster driver negligently causes the dumpster to fall on a vehicle or pedestrian while moving the dumpster. See, e.g., Scheckler v. City of Mount Dora, 395 So.2d 1188 (Fla. 5th DCA 1981).
The city also maintains that it was improperly held liable here because the location of the dumpster was open and obvious, and therefore, the location of the dumpster was not the proximate cause of the accident. On this issue we believe the trial court properly submitted the issue of comparative negligence to the jury. See Stewart v. Boho, Inc., 493 So.2d 95 (Fla. 4th DCA 1986). Here, there was evidence of a violation of a city ordinance which evidently had underlying safety concerns in eliminating obstructions to the vision of motorists and pedestrians alike. Also, there was evidence presented from which a jury could have reasonably found that the dumpster did, in fact, constitute a hazard. See Scheckler. Of course, there was also evidence that the plaintiff was negligent and, in fact, the jury found the plaintiff to be comparatively negligent.
Although there may be no actual conflict, depending on the facts in Watts, by this en banc opinion we recede from any statements in Watts contrary to our holding here. 1
Whittler's claim against CSX is based on the Federal Employers' Liability Act (FELA), 45 U.S.C. Sec. 51. In Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 507-508, 77 S.Ct. 443, 449, 1 L.Ed.2d 493, 500 (1957), the supreme court summarized the congressional intent underlying the FELA:
The law [FELA] was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due (Emphasis added). Under the Act, the employer has the duty to provide a safe place to work, whether it be on railroad premises or other premises to which the employee has reported to perform job-related duties. Shenker v. Baltimore and Ohio Railroad Co., 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963).
in whole or in part to the employer's negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than a single question whether negligence of the employer played any part, however small, in the...To continue reading
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