Garcia v. City of Hialeah

• Decision Date: 03 October 1989
• Docket Number: 88-1232 and 88-1246,Nos. 88-839,s. 88-839
• Citation: 550 So.2d 1158,14 Fla. L. Weekly 2310
• Parties: 14 Fla. L. Weekly 2310 Hector GARCIA, et al., Appellants, v. CITY OF HIALEAH, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1158

550 So.2d 1158

14 Fla. L. Weekly 2310

Hector GARCIA, et al., Appellants, v. CITY OF HIALEAH, et al., Appellees.

Nos. 88-839, 88-1232 and 88-1246.

District Court of Appeal of Florida Third District.

Oct. 3, 1989.

Rehearing Denied Nov. 16, 1989.

Horton, Perse & Ginsberg and Arnold Ginsberg, Miami, Samuel M. Spatzer, Coral Gables, for appellants.

Carey, Dwyer, Eckhart, Mason, Spring & Beckham, Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Fort Lauderdale, Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson, Miami, and Susan S. Lerner, for appellees.

Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.

NESBITT, Judge.

Motorist Hector Garcia claims he was injured when, upon leaving Ed's Shell Service Station on Okeechobee Road in Hialeah, his visibility was obscured by shrubbery and his vehicle was struck by a vehicle defendant Kent Hilton Nolan was driving. The trial court granted summary judgment in favor of defendants, the City of Hialeah, who Garcia alleged was responsible for the shrubbery, motorist Nolan, and the station's lessee, Eliadio Larralde. We affirm as to the City of Hialeah and reverse as to defendants Nolan and Larralde.

Although motorist Nolan did attempt to come forward and show that Garcia was the sole proximate cause of the accident, he did not completely dispel every inference as to liability. There was conflicting evidence as to where in the multi-lane road the collision actually occurred leaving questions as to each party's visibility and speed at the time of the accident. See Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977) (court must draw every possible inference in favor of party against whom summary judgment motion was granted); Holl v. Talcott, 191 So.2d 40 (Fla.1966) (party moving for summary judgment must prove the nonexistence of any genuine issue of material fact); Toll v. Waters, 138 Fla. 349, 189 So. 393 (1939) (conflicting evidence as to speed of auto, location thereof after collision, and presence of house and trees obscuring vision of drivers, presented questions for jury). Consequently, there are issues here remaining for trial.

With respect to the defendant Larralde, any liability derived from the fact that he owed a duty to provide reasonably safe ingress and egress to business invitees using his gasoline station. ¹ While Larralde claims he neither owned nor maintained the shrubbery on the area in question, he also testified that he did pick up debris which accumulated in the area such as papers, cans, and bottles. Consequently, there remains a question as to whether he reasonably discharged his duty under the circumstances. See Hook v. Brown, 498 So.2d 1045 (Fla. 3d DCA 1986) (error to relieve shopping center/owner/manager of liability by summary judgment for tenant employee's injury where record did not establish responsibility for maintenance but evidence of center/owner/manager's undertaking past repairs was submitted); Arias v. State Farm Fire & Cas. Co., 426 So.2d 1136 (Fla. 1st DCA 1983) (duty owed...