Hammond v. Springtree Properties, Inc., 95-00714

• Decision Date: 26 January 1996
• Docket Number: No. 95-00714,95-00714
• Citation: 668 So.2d 1004
• Parties: 21 Fla. L. Weekly D276 James P. HAMMOND, Jr., and Lucy M. Hammond, his wife, Appellants, v. SPRINGTREE PROPERTIES, INC., a Florida corporation; Springtree Properties, Inc., as General Partner of Springtree Ltd., Phase I, a Florida Limited Partnership; Joseph M. Nolen; Thomas C. Floyd; and Hardee's Food Systems, Inc., a North Carolina corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1004

668 So.2d 1004

21 Fla. L. Weekly D276

James P. HAMMOND, Jr., and Lucy M. Hammond, his wife, Appellants, v. SPRINGTREE PROPERTIES, INC., a Florida corporation; Springtree Properties, Inc., as General Partner of Springtree Ltd., Phase I, a Florida Limited Partnership; Joseph M. Nolen; Thomas C. Floyd; and Hardee's Food Systems, Inc., a North Carolina corporation, Appellees.

No. 95-00714.

District Court of Appeal of Florida Second District.

Jan. 26, 1996.

Rehearing Denied Feb. 28, 1996.

Appeal from the Circuit Court for Polk County; Susan Wadsworth Roberts, Judge.

Charles B. Draper of Draper Law Office, Kissimmee, for Appellants.

Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham, Lane & Ford, P.A., Ft. Lauderdale, for Appellees.

BLUE, Judge.

James and Lucy Hammond appeal from the trial court's order granting summary judgment to the appellees, defendants below. They argue that a jury question was presented on the issue of foreseeability. We agree and reverse.

This case involves an accident at a Hardee's restaurant where a customer's van jumped the curb and hit Mr. Hammond after he exited the restaurant. The Hammonds filed suit against the van driver and the appellees. The van driver is not a party to this appeal. The Hammonds alleged that the appellees breached their duty of care by failing to install bumper posts or other barriers between the front parking spaces and the front door and sidewalk. The appellees sought summary judgment, arguing that the accident was unforeseeable as a matter of law.

In support of their motion for summary judgment, the appellees submitted the deposition of Susan Werner, Hardee's Director of Risk Management. She conducted a computer search of incident reports dating back to 1985 from 1,100 company-operated Hardee's restaurants. The records revealed no similar incidents where a person was injured by a motor vehicle jumping the curb, no similar incidents where property damage was caused by a motor vehicle jumping the curb, and no lawsuits filed against Hardee's for such injuries or damage.

The Hammonds submitted an affidavit from a registered professional engineer who opined that the design and construction were defective because the van could mount the curb travelling only four miles per hour. The engineer concluded that the absence of adequate car stops constituted a defective design. A second affidavit identified forty-five locations, with pictures attached, of Polk County establishments that use vertical bumper posts.

There are numerous cases involving accidents where a business allegedly breached its duty of care by failing to install bumper posts or otherwise to protect pedestrians from motor vehicles. ¹ These cases differ slightly depending on whether the customer was inside or outside the business, whether similar accidents had occurred in the past, and what type of curbs, barriers or parking the business provided. Based on the majority of these cases, the appellees argue that the issue of foreseeability is determined by a business' history with similar incidents. They argue that the absence of prior similar incidents at Hardee's restaurants makes Mr. Hammond's accident unforeseeable as a matter of law, thus entitling them to summary judgment. We have concluded, however, that the lack of similar incidents in the past is not dispositive on the threshold issue of foreseeability.

In McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992), the supreme court examined the different ways that foreseeability relates to duty versus proximate causation.

The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader 'zone of risk' that poses a general threat of harm to others. The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred.... [T]he former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open.

593 So.2d at 502 (citations and footnote omitted).

Based on our reading of McCain, we hold that the trial court erred by granting summary judgment on the threshold issue of foreseeability. Just as Florida Power had the ability to foresee the zone of risk that was created when people worked near or around electric lines, the appellees here had the ability to foresee the zone of risk created by the presence of both pedestrian and vehicular traffic. Just as Florida Power would be entitled to offer proof regarding intervening causes, precautions, lack of similar occurrences in the past, etc., so too the appellees here would be entitled to offer proof that this type of incident had never occurred. This...