Meyers v. City of Jacksonville, 1D99-1537.

• Decision Date: 17 April 2000
• Docket Number: No. 1D99-1537.,1D99-1537.
• Parties: Edward MEYERS and Tammy Meyers, Appellants, v. The CITY OF JACKSONVILLE, Appellee.
• Court: Florida District Court of Appeals

754 So.2d 198

Edward MEYERS and Tammy Meyers, Appellants, v. The CITY OF JACKSONVILLE, Appellee.

No. 1D99-1537.

District Court of Appeal of Florida, First District.

April 17, 2000.

Gregory A. Lawrence of Thomas & Lawrence, P.A., Jacksonville, for Appellants.

Richard A. Mullaney, General Counsel; Virginia Baker Norton, Assistant General Counsel; and John R. Jolly, Deputy General Counsel, Jacksonville, for Appellee.

BROWNING, J.

Appellants, Edward and Tammy Meyers, who are husband and wife, appeal the trial court's order dismissing their amended complaint with prejudice. The trial court found that Appellee, the City of Jacksonville (City), had a legal duty to comply with statutory requirements governing wheelchair accessibility after the City undertook substantial renovations to one of its office buildings. The sole issue on appeal is whether the trial court reversibly erred subsequently by finding that Appellants' failure to plead discriminatory intent on the part of the City justified dismissal of the amended complaint with prejudice. Concluding that the amended complaint states a cause of action under a common-law negligence theory, we reverse the dismissal order and remand for further proceedings consistent with this opinion.

In their initial complaint, Appellants alleged that on or about November 14, 1997, Mr. Meyers, who requires the use of a wheelchair, attempted to enter the City's Traffic Violations Bureau office; that in 1994, the City had purchased the building and subsequently made substantial renovations to the building and changed its use by opening the Traffic Violations Bureau office; that the building has a raised entrance, requiring the public to ascend a flight of stairs to enter it; that despite the City's purchase of, and substantial renovations to, the building, the City provided no wheelchair ramp or other means by which persons using wheelchairs, including Mr. Meyers, could safely access the building; that as a direct and legal result of the City's failure to provide wheelchair accessibility to the building, Mr. Meyers fell down the flight of stairs at the building's entrance and was severely injured; and that Appellants had satisfied all conditions precedent to the filing of this action.

In Count One, a negligence claim, Appellants alleged that as the City's substantial renovation and change of use of the building in question occurred well after 1991, the Americans With Disabilities Act of 1990, 42 U.S.C., section 12101 et seq., required that a wheelchair ramp or other means of accessibility be provided for persons using wheelchairs; that the City's failure to provide wheelchair accessibility at the building violated the Florida Americans With Disabilities Accessibility Implementation Act (the Florida Act), Section 553.501, Florida Statutes (1997), et seq., as well as numerous building, safety, and accessibility regulations, codes, and guidelines; that the City was negligent in breaching its duty to comply with the statutory mandate to provide wheelchair accessibility to the building; and that as a result of the City's negligence, Mr. Meyers has suffered bodily injury, aggravation of a preexisting injury, pain and suffering, disability, mental anguish, property damage, past and future medical expenses, lost wages, and the impairment of his ability to earn future wages. Appellants demanded judgment for compensatory damages, costs, and any additional relief deemed appropriate by the court.

In Count Two, a loss of consortium claim, Mrs. Meyers alleged that as a result of the City's negligence, she has suffered the loss of her husband's support and services, companionship, and affection. Appellants demanded judgment for compensatory damages, costs, and any additional relief deemed appropriate by the court.

Count Three, a claim based on failure to provide public records, alleged that on April 3, 1998, pursuant to Chapter 119, Florida Statutes, Appellants served a letter to the City by certified mail requesting public records relating to the City's purchase and renovation of the building in question; that a follow-up letter was written requesting the documents and seeking additional documents; that the City had refused to provide the requested documents, in direct violation of Florida statutes; and that Appellants are entitled to an award of reasonable attorney's fees under section 119.112, Florida Statutes (1997). Appellants demanded that the City provide the requested documents and pay costs and fees. Appellants also sought an accelerated hearing pursuant to section 119.11, Florida Statutes (1997).

The City raised the defense of sovereign immunity and moved to dismiss the complaint for failure specifically to allege compliance with the requirements of section 768.28, Florida Statutes (1997). See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979)

; Wright v. Polk County Pub. Health Unit, 601 So.2d 1318 (Fla. 2d DCA 1992). The City amended its motion to dismiss and alleged that Appellants had styled their complaint as a negligence action grafted onto an Americans With Disabilities Act action, to circumvent both Congressional intent and the case law relating to the Act, in an effort to recover compensatory damages. The City asserted that absent a showing of discriminatory intent of governmental entities covered under Title II of the Americans With Disabilities Act, compensatory damages are not an available remedy under the Act, and Congress never intended compensatory damages to be an available remedy under the Act. See Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998). The City contended that Mr. Meyers had attempted to transgress an obvious dangerous condition for persons in wheelchairs and, as a result, injured himself. The City argued that evidence of a dangerous condition, which is readily apparent to the public, on government property will not support a negligence claim against a government entity. See Leonard v. Wakulla County, 688 So.2d 440 (Fla. 1st DCA 1997). Citing Leonard, the City asserted that under Florida law, there is no liability for the failure of a government entity to build, expand, or modernize capital improvements such as buildings and roads. The City alleged that by failing to plead ultimate facts to support the conclusion that the City should be subject to liability, Appellants had failed to meet the requirements of Florida Rule of Civil Procedure 1.110(b). The movant sought dismissal of the complaint with prejudice. After a hearing, the trial court made these findings:

The Court finds that the City had a legal duty to comply with statutory requirements thereof affecting the disability access when it undertook substantial renovations to its facility; however, in the absence of pleading and proving a discriminatory intent by the City to deny access toward the class of individuals of which Plaintiff is a member, compensatory damages are not recoverable.

Further, Plaintiffs have failed to plead with specificity in the Complaint proper notice requirement to the City prior to institution of this suit.

The City's amended motion was granted, and the complaint was dismissed with leave to amend.

Appellants then filed a motion for reconsideration suggesting that their basis of recovery was unclear to the trial court and noting that they are not seeking compensatory damages under the Americans With Disabilities Act pursuant to which, they concede, pleading discriminatory intent would be an element of the cause of action. Rather, Appellants allege they have sued the City for common-law negligence under state law.

In conjunction with the motion for reconsideration, Appellants filed an amended complaint and demand for jury trial. The amended complaint substantially re-alleged the facts in the initial complaint. Additionally, it alleged that Appellants had satisfied all conditions precedent to the filing of this action and had provided the City with written notice of this claim on April 7, 1998, in strict compliance with section 768.28, Florida Statutes; and that the City had failed to respond to Appellants' notice within 180 days, thereby entitling them to file this action.

Count One of the amended complaint, which is designated a common-law negligence claim, alleged that prior to the time of Mr. Meyers' accident, the City had a statutory, non-discretionary duty to provide a wheelchair ramp or other safe access for persons who use wheelchairs, as required by section 553.501, Florida Statutes, et seq., and 42 U.S.C., section 12101 et seq.; that the City was negligent in that it breached its duty to comply with the statutory duty to provide wheelchair accessibility to the building in question; and that as a direct and proximate result of the City's negligence, Mr. Meyers has suffered damages in the forms alleged in the original Count One. Count Two, the loss of consortium claim, is identical to the original Count Two in all material respects.

Attached to the amended complaint is Exhibit "A," the April 3, 1998, "notice of claim" letter sent to the City by Appellants' attorney. The letter sets out the following chronology of alleged events. On the date in question, Mr. Meyers, who is a paraplegic requiring the use of a wheelchair, accompanied by his 14-year-old stepson, went to the City's Traffic Violations Bureau office to pay a traffic fine. As the first floor of the building is raised, the public is required to ascend a flight of stairs to get into the building. Approaching the building and realizing that it had no wheelchair ramp or other means of access for persons in wheelchairs, Mr. Meyers sent his stepson into the building to find out how to access the building. The stepson was told there was no wheelchair ramp or other means of access for persons in wheelchairs. Mr. Meyers then attempted to have his stepson lift him over the steps and into the building. The stepson began lifting Mr. Meyers by the handles of the wheelchair,...