Feldstein v. City of Key West, 86-2767

• Decision Date: 21 July 1987
• Docket Number: No. 86-2767,86-2767
• Parties: 12 Fla. L. Weekly 1761 Donald FELDSTEIN and Carol Feldstein, his wife, Appellants, v. The CITY OF KEY WEST, Florida, Appellee.
• Court: Florida District Court of Appeals

Page 217

512 So.2d 217

12 Fla. L. Weekly 1761

Donald FELDSTEIN and Carol Feldstein, his wife, Appellants, v. The CITY OF KEY WEST, Florida, Appellee.

No. 86-2767.

District Court of Appeal of Florida,

Third District.

July 21, 1987.

Spence, Payne, Masington, Grossman & Needle, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel Eaton, Lawrence & Daniels, Miami, for appellants.

Fleming, O'Bryan & Fleming and Michael T. Burke, Fort Lauderdale, for appellee.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

The questions on this appeal are (1) whether the City of Key West, having undertaken a street and sidewalk renovation program after the enactment of Section 335.075(a), Florida Statutes (1975), ¹ was required by the statute to provide a permanent wheelchair ramp at a curb not being renovated but connected by a crosswalk to a curb within the renovation zone at which a statutorily required ramp had been installed, and (2) apart from any obligation under the statute, whether installing a permanent ramp at a curb connected by a crosswalk to a curb that contains no ramp creates a known dangerous condition and thus imposes a duty on the municipality to correct or warn of the condition. The trial court, concluding that the City had no statutory duty to construct the additional ramp and that its failure to do so did not result in the creation of a known dangerous condition, entered summary judgment for the City. We reverse.

Donald Feldstein, dependent on a wheelchair for the last 37 of his 41 years, was struck by a motor vehicle while proceeding south in his motorized wheelchair on Duval Street in Key West, Florida. According to Mr. Feldstein, he was in the street on this dark and rainy night, carefully hugging the line of cars parked on the side of Duval Street, because there was no wheelchair ramp at the curb on the southwest corner of Duval and Olivia Streets. Mr. Feldstein, having entered the crosswalk connecting the northwest and southwest corners of the Duval-Olivia intersection by way of a ramp on the northwest corner and now confronted on the southwest corner with a curb, found himself having to look for access to the Duval Street sidewalk. Almost immediately after choosing to continue south in the street, Mr. Feldstein was struck.

The explanation for the presence of a ramp on one end of the crosswalk and the absence of a ramp on the other is a simple one. The ramp on the northwest corner of the Duval-Olivia intersection was constructed as part of a restoration project, the geographical limit of which was the centerline of Olivia Street. Although this phase of the restoration work was completed approximately six years before the accident in question, no further restoration was undertaken south of the Olivia Street centerline.

We turn first to the statute, which, the Feldsteins argue, obligated the City, having constructed ramps on the northern side of the intersection, to construct ramps on the southern side. The statute, Section 335.075(3), Florida Statutes (1975), provides:

"Notwithstanding the provisions of any general or special law to the contrary, all plans and specifications for the construction of public streets and roads by any municipality or county shall provide for permanent curb ramps at crosswalks at all intersections where curbs and sidewalks are constructed in order to give handicapped persons and persons in wheelchairs safe access to crosswalks."

The Feldsteins contend that because the statute requires permanent "curb ramps at crosswalks at all intersections where curbs and sidewalks are constructed," not, as it might have required, curb ramps at each street corner, ramps must, at the least, be constructed in pairs, one occupying each end of a crosswalk. ² The City, looking to other language, argues that the ramps need be constructed only at the place "where the curbs and sidewalks are constructed."

We agree with the Feldsteins. It is apparent, as we will soon discuss, that to provide a handicapped person access to a crosswalk without providing such person egress from the crosswalk is to place the handicapped person in special jeopardy, to create for him a trap. We cannot for one moment believe that the Legislature would enact a statute that, in effect, would require a municipality or county to create such a trap, that is, to build a ramp to a crosswalk which leads to the obstacle of a one-foot curb. City of St. Petersburg v. Collom, 419 So.2d 1082, 1086 (Fla.1982). Although the statute is susceptible to a contrary construction, we conclude that it must be read to require a ramp at each end of a crosswalk where the curb and sidewalk at one end is redone. ³ Given this statutory direction to install ramps at all crosswalks where curbs and sidewalks are constructed, the City may not excuse its failure to construct the ramp at the southwest corner on the ground that the decision to construct this particular ramp was a planning decision for which it is immune from liability. Cf. A.L. Lewis Elementary School v. Metropolitan Dade County, 376 So.2d 32 (Fla. 3d DCA 1979). "[E]xpress statutory direction to install certain speed zones and traffic and pedestrian control devices at stated locations makes such governmental actions mandatory, and the question of whether or...