Jauma v. City of Hialeah, 3D99-0828.

• Decision Date: 19 January 2000
• Docket Number: No. 3D99-0828.,3D99-0828.
• Parties: Gilberto JAUMA and Raquel Jauma, Appellants, v. The CITY OF HIALEAH, Appellee.
• Court: Florida District Court of Appeals

758 So.2d 696

Gilberto JAUMA and Raquel Jauma, Appellants, v. The CITY OF HIALEAH, Appellee.

No. 3D99-0828.

District Court of Appeal of Florida, Third District.

January 19, 2000.

Rehearing Denied June 7, 2000.

Kurzban Kurzban Weinger & Tetzeli and Helena Tetzeli, Miami, for appellants.

Akerman, Senterfitt & Eidson and Eduardo E. Neret and Alise Johnson, Miami, for appellee.

Before JORGENSON, COPE and FLETCHER, JJ.

COPE, J.

Gilberto and Raquel Jauma appeal a summary judgment in favor of the City of Hialeah in a slip-and-fall action. We reverse.

In order to widen State Road 826 within the City of Hialeah, it was necessary to relocate gas pipelines. The City issued a permit for the relocation. The contractor pumped muddy water out of the excavation and into the Jaumas' street, flooding the street, swale, and sidewalks.

The public way provided the only means of entry into the homes on the street. The residents complained to the City, which inspected the street but took no action to correct the flooding.

During the flooded condition, Gilberto Jauma attempted to walk home from a nearby convenience store. Because he was unable to walk on the sidewalk due to its muddy and slippery condition, Gilberto attempted to walk along the curb. He slipped and fell into the street where he was hit by an oncoming automobile and suffered serious injury.

The Jaumas filed an action against the City and other defendants. Gilberto sued for damages for his injuries and Raquel sued for loss of consortium. The complaint alleged that the City was liable because it "failed to properly maintain, manage or supervise the nearby construction/demolition/work site and surrounding or nearby area roadways affected," failed to respond to citizen complaints about the flooding, and failed to take corrective action. The trial court entered summary judgment for the City and the Jaumas have appealed.

We agree with the City that it is not liable to the Jaumas for a failure to inspect or supervise the work of the contractor based on the existence of the permit it issued. See Trianon Park Condominium Assoc., Inc. v. City of Hialeah, 468 So.2d 912, 914-15 (Fla.1985); Bovio v. City of Miami Springs, 523 So.2d 1247, 1249 (Fla. 3d DCA 1988). Likewise, on the facts presented here, the City is not vicariously liable for the negligence of the contractor. See City of Miami v. Perez, 509 So.2d 343, 345 (Fla. 3d DCA 1987). Nevertheless, the City had a non-delegable duty to maintain its roads, sidewalks, and rights-of-way in a reasonably safe condition. See Grier v. Metro. Dade County, 660 So.2d 273, 274 (Fla. 3d DCA 1995),Camillo v. Dept. of Transportation, 546 So.2d 4, 5 (Fla. 3d DCA 1988). The residents complained to the City about the flooding and City employees observed the flooding on more than one occasion. The City took no steps to correct the flooding or to ensure that the contractor did so. Thus, there was support for Jaumas' claim that the City failed to maintain its streets and sidewalks in a reasonably safe condition.

The open and obvious nature of the hazard does not provide an avenue of relief for the City because the Jaumas and the other residents of the street had no other means of entry and egress from their homes. In those circumstances, the City as landowner was aware that the residents would have to encounter the danger notwithstanding that the flooding was open and obvious. As summarized in the Restatement (Second) of Torts:

§ 343A KNOWN OR OBVIOUS DANGERS

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.

Restatement (Second) of Torts § 343A (1965) (emphasis added). Gilberto and all other residents of the street were entitled to, and indeed had no option but to, use the street on which they lived and the City had every reason to anticipate that they would do so. See also Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980).

The City contends that it should be exonerated by reason of Coudry v. City of Titusville, 438 So.2d 197 (Fla. 5th DCA 1983). We disagree. The final two paragraphs of Coudry present a theory of municipal liability consistent with the analysis we have outlined here.

We reverse the summary judgment and remand for further proceedings consistent herewith.

FLETCHER, J., concurs.

JORGENSON, J., dissenting.

Because there is no theory upon which the City of Hialeah can be held liable, I respectfully dissent. Although the City of Hialeah had a general duty to maintain its roads, sidewalks, and rights-of-way in a reasonably safe condition, that duty does not apply here. "Pursuant to established principles of negligence, a city has a duty to maintain its streets and sidewalks in a reasonably safe condition. However, it is not an insurer of the safety of pedestrians who traverse its streets." Bovio v. City of Miami Springs, 523 So.2d 1247, 1249 (Fla. 3d DCA 1988). The unsafe condition that allegedly caused the plaintiff's injuries was affirmatively created by the contractor. The City did not create the dangerous condition, nor was the contractor correcting an unsafe condition that was part of the City's initial design of the roadway. The public street was simply the location of the danger,...