Drady v. Hillsborough County Aviation Authority

• Decision Date: 30 November 1966
• Docket Number: No. 5964,5964
• Citation: 193 So.2d 201
• Parties: George M. DRADY, Jr., Appellant, v. HILLSBOROUGH COUNTY AVIATION AUTHORITY, Appellee.
• Court: Florida District Court of Appeals

Page 201

193 So.2d 201

George M. DRADY, Jr., Appellant, v. HILLSBOROUGH COUNTY AVIATION AUTHORITY, Appellee.

No. 5964.

District Court of Appeal of Florida, Second District.

Nov. 30, 1966.

Rehearing Denied Jan. 23, 1967.

J. Bert Grandoff, Jr., of Hardee, Ott & Hamilton, Tampa, for appellant.

Thomas C. MacDonald, Jr., of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellee.

OVERTON, BEN F., Associate Judge.

Appellant-plaintiff below brings this timely appeal from a trial court order dismissing with prejudice his fourth amended complaint against the appellee, Hillsborough County Aviation Authority, one of two defendants below. The complaint of the appellant was not dismissed as to the defendant, City of Tampa. Plaintiff filed his action against the defendant-appellee Aviation Authority and the defendant, City of Tampa, alleging that he was operating his vehicle at night in a southerly direction on Lois Avenue near its intersection with Douglas Avenue in the City of Tampa. At this location Lois Avenue comes to a dead end. The plaintiff alleges that he drove his automobile across said Douglas Avenue south on what he reasonably believed to be the continuation of Lois Avenue, and into and through a low and obscure concrete abutment. The plaintiff asserts that because of a bridge or span across a drainage ditch, together with the existing grade of Lois Avenue as it would have been extended, that said Lois Avenue appeared to the plaintiff to continue on and extend on and across south of Douglas Avenue. Plaintiff further alleges that the defendants negligently failed to errect adequate lights, signs, barricades or other warnings to reasonably place persons traveling south on Lois Avenue on notice of the termination of Lois Avenue at said intersection.

The trial court, in granting the appellee Aviation Authority's motion to dismiss, stated:

'There is no duty shown on this defendant toward travelers on a public highway which highway is not on its property nor positioned in relation thereto in any way creating any such responsibility on the facts alleged.'

Appellant contends that under the allegations of the complaint there was a duty on the appellee to exercise reasonable care to see that there was no danger to travelers on the public street known as Lois Avenue who were misled into believing that Lois Avenue extended across Douglas Avenue onto said appellee's property.

The general rule concerning the liability of an owner of land adjacent to a highway toward those using the highway is stated in Section 367, Restatement of Torts, towit:

'A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway is subject to liability for bodily harm caused to them while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.'

Appellant relies heavily upon the case of Louisville & N. R. Co. v. Anderson, 39 F.2d 403 (5 C.C.A.1930), which was a personal injury action arising from a plaintiff's judgment in the United States District Court for the Northern District of Florida. In said case the plaintiff was driving early one dark and foggy morning when he accidentally strayed from the public street onto the defendant's premises. After driving 57 feet on defendant's premises, the plaintiff drove into a railroad track that was depressed. The street upon which the plaintiff was traveling was paved with black dirt, and the defendant's property adjacent thereto, where the street would have been, if extended, was paved with black cinders. The court held that the plaintiff was entitled to recover, stating:

'If it (excavation or obstruction) is far enough from the highway not to endanger one who remains upon it, then liability can be imposed upon the occupant of the premises only if he creates a deceptive appearance of the situation, such as would justify a reasonably prudent man in straying from the highway, believing himself to be still upon it. If the occupant might reasonably have anticipated, as a prudent person, that a reasonably prudent traveler, owing to the appearance of the situation by him created, might stray from the highway in the belief that he was still on it and fall into the excavation, liability would ensue.'

The Court in this case further found that there was evidence introduced sufficient to show:

'* * * that the defendant had created on the lands it was occupying an appearance that a reasonably prudent driver of an automobile on a dark, foggy night might have been misled into believing that Belmont street extended beyond Tarragona street to and beyond the point where the defendant had constructed its sunken track * * *'

We agree with the law as stated in Louisville & N. R. Co. v. Anderson, supra, but in applying this law to the facts in the case now before the court the question arises as to whether the facts as alleged are sufficient to show that the defendant had created on the lands it was occupying an appearance that would cause a reasonably prudent driver on a dark night to be misled into believing that Lois Avenue crossed Douglas Avenue. It is our opinion that the facts as alleged are not sufficient.

The allegations of the complaint fail to establish what is actually constructed upon the property owned by the appellee Aviation Authority, as distinguished from what is actually constructed upon the public highway right of way of the defendant City of Tampa.

There is no allegation that paving of any kind existed on the appellee Aviation Authority's property, although it is alleged that the 'grade level' is the same. The principal authorities cited by the appellant, Louisville & N.R. Co. v. Anderson, supra; Aluminum Company of America v. Walden, 230 Ark. 337, 322 S.W.2d 696 (1959)...