Sewell v. Racetrac Petroleum, Inc.

• Decision Date: 27 December 2017
• Docket Number: No. 3D16–1218,3D16–1218
• Citation: 245 So.3d 822
• Parties: Crystal SEWELL, Appellant, v. RACETRAC PETROLEUM, INC., Appellee.
• Court: Florida District Court of Appeals

245 So.3d 822

Crystal SEWELL, Appellant,

v.RACETRAC PETROLEUM, INC., Appellee.

No. 3D16–1218

District Court of Appeal of Florida, Third District.

Opinion filed December 27, 2017

Schlesinger Law Offices, P.A., and Gregg A. Schlesinger and Zane Berg (Fort Lauderdale); Brannock & Humphries, and Shea T. Moxon and Celene Humphries (Tampa), for appellant.

Luks, Santaniello, Petrillo & Jones, and Daniel J. Santaniello, Edgardo Ferreyra, Jr., Shana P. Nogues, and Heather M. Calhoon, for appellee.

Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.

LOGUE, J.

Crystal Sewell lost control of her vehicle and hit a palm tree after her car was allegedly cut off by an unknown vehicle that took a left-hand turn from a gas station and abruptly joined the lane of traffic in which Sewell was traveling. In doing so, the unknown vehicle traveled through a cut in the concrete median provided for traffic. Sewell sued Racetrac Petroleum, Inc., the corporation that owned, developed, and operated the gas station, in large part because Racetrac created a dangerous condition when it lobbied the local county government to create the cut in the median to promote access to its property.

Sewell appeals the dismissal of her negligence action against Racetrac, the denial of her motion to plead punitive damages, and the denial of her motion for spoliation damages. We affirm without discussion the denial of the motion to plead punitive damages and the denial of her motion for spoliation damages. Regarding the dismissal of her case, we affirm in part and reverse in part.

I. Background

According to the complaint, on August 29, 2007, Sewell was driving eastbound on Northeast 8th Street in Homestead, Florida. Northeast 8th Street is a four-lane road with two eastbound lanes of traffic and two westbound lanes divided by a concrete median. Racetrac's gas station is located on the northern side of Northeast 8th Street. Opposite the gas station, there is a cut in the concrete median. The cut allows vehicles traveling east on Northeast 8th Street to enter a turn lane at the cut and use the cut to turn left into the gas station. It also allows vehicles exiting the gas station to turn left out of the gas station and go eastbound on Northeast 8th Street.

Sewell alleges that as she approached the gas station, an unknown vehicle exited the gas station, traversed the cut, turned left, and joined the eastbound lane of travel in which Sewell was also traveling. As a result, Sewell lost control of her vehicle, hit a palm tree, and suffered injuries. Sewell did not allege that either car's view was obscured or obstructed.

Sewell's complaint presents two legal theories. The main legal theory is that Racetrac's application to obtain the cut in the concrete median to facilitate traffic into and out of the property was tortious because Racetrac "knew or should have known that opening the median to allow ‘full access’ would ... pose an undue risk of harm to the motoring public" and "[i]f the median had not been removed to permit vehicles exiting the subject gas station to turn left, the subject collision would not have occurred."

In 1977, Racetrac agreed to purchase the property only if the governing agencies approved the cut in the median. In obtaining approval from Miami–Dade County, Racetrac submitted one traffic study that used the Institute of Transportation Engineers Trip Generation category for "Convenience Market with Gas Pumps." Sewell alleges that "there were other categories ... that would have been more applicable to Racetrac." Racetrac also submitted another traffic study that should have been based on a different set of its existing stores. Sewell further alleges that Racetrac, through "bribery and corruption," obtained the support of its application from City of Homestead officials, although, as the complaint admits, "city officials don't get to decide whether the median gets removed or not (county officials do)."

The complaint presents a second theory of liability that Racetrac negligently failed to make adjustments on its own property to deal with the alleged danger presented to the traveling public by vehicles turning left out of its property. In particular, Sewell alleged that Racetrac painted driveway markings that encouraged customers to turn left out of its property when it knew or should have known that such turns presented an unreasonable danger.

Racetrac filed a motion to dismiss, which the trial court granted after briefing and an extensive argument. This appeal followed.

II. Analysis

In reviewing a motion to dismiss, the truth of the allegations is assumed. See Xavier v. Leviev Boymelgreen Marquis Developers, LLC, 117 So.3d 773, 775 (Fla. 3d DCA 2012) ("In ruling on a motion to dismiss, all well-pled facts in the complaint are accepted as true.").

The trial court dismissed the complaint because it found that Racetrac owed no legal duty to Sewell. At the outset, we note that while the tort of negligence requires the establishment of duty, breach, proximate cause, and damages, it is for the court to determine the existence of a duty. "Duty is the standard of conduct given to the jury for gauging the defendant's factual conduct." McCain v. Florida Power Corp., 593 So.2d 500, 503 (Fla. 1992). It "exists as a matter of law and is not a factual question for the jury to decide." Id.

The touchstone for determining whether a duty exists is "foreseeability." Id."[W]here a person's conduct is such that it creates a ‘foreseeable zone of risk’ posing a general threat of harm to others, a legal duty will ordinarily be recognized to ensure that the underlying threatening conduct is carried out reasonably." Williams v. Davis, 974 So.2d 1052, 1056 (Fla. 2007). In a few "exceptional" areas of the law, however, a legal duty is sometimes not recognized or is substantially curtailed even if the risk is foreseeable. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 (Am. Law Inst. 2010).¹

Regarding landowner liability, for example, the Florida Supreme Court has held that an owner of residential property in a rural area did not have a duty to cut trees contained entirely in its property to ensure vehicles approaching an intersection from different directions could see each other, even though it was foreseeable that the blocked view might cause vehicles driven by negligent drivers to collide. Williams, 974 So.2d at 1058–59. In that case the Court held that McCain's foreseeability analysis did not create landowner liability in that context:

[W]hile we have found there is no principled basis for not extending the law of negligence set out in McCain to the conditions on private property that may protrude into the public right-of-way so as to create a hazard to adjacent traffic, we conclude that residential landowners who do not permit conditions on their land to extend beyond its boundaries should not be subject to the same liability.

Williams, 974 So.2d at 1063.

Thus, as the law of Florida has held for almost fifty years, " ‘[d]uty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection [or not]." Gracey v. Eaker, 837 So.2d 348, 354–55 (Fla. 2002) (quoting Rupp v. Bryant, 417 So.2d 658, 667 (Fla. 1982) ).

As Gracey teaches, the determination of whether a particular duty of care exists may depend on the nature of the relationship between the parties. Cf. Limones v. Sch. Dist. of Lee Cty., 161 So.3d 384, 389 (Fla. 2015) (holding that because of the nature of a school's relationship to their juvenile students, a jury could find that the school breached its duty of care by not providing student athletes with defibrillators

); Sells v. CSX Transp., Inc., 170 So.3d 27, 33 (Fla. 1st DCA 2015) (finding that given the nature of the employer and employee relationship, the employer had no duty to provide defibrillators to employees working in remote locations); L.A. Fitness Int'l, LLC v. Mayer, 980 So.2d 550, 552 (Fla. 4th DCA 2008) (holding that because of the nature of the relationship between a commercial business and its client, the fitness club had no duty to provide defibrillators ).

Turning to this case, the decision of whether or not to improve roadways or upgrade traffic control devices often pits the interests of some users of the roads against the interest of others. For example, businesses and commuters may want traffic control devices that speed up and facilitate the flow of traffic. Neighborhood groups, on the other hand, may want traffic control devices that slow or divert traffic. The process for making these decisions involves the quasi-political balancing of the competing and conflicting needs of different parts of the community with the limited resources available. For this reason, the law recognizes that these matters involve the "judgmental, planning-level decisions" by the political branches of government "which are not actionable." Dep't of Transp. v. Konney, 587 So.2d 1292, 1295 (Fla. 1991) (citing Trianon Park Condo. Ass'n v. City of Hialeah, 468 So.2d 912 (Fla. 1985) and Commercial Carrier Corp. v. Indian River Cnty., 371 So.2d 1010 (Fla. 1979) ).

By petitioning Miami–Dade County to obtain the cut in the median, Racetrac entered into this planning process. As a participant in this process, Racetrac could advocate freely—even fiercely—for its own interests. Racetrac did not have a relationship with Sewell (or others like her) that would create in Racetrac a legal duty to tailor its petition to protect Sewell and other competing road users.

At best, Sewell alleged Racetrac submitted expert traffic studies that were extremely one-sided and unprofessionally skewed to support its application to have the median cut. Such allegations, without more, are not actionable. This is not a case in which Sewell alleges Racetrac petitioned the government for the primary purpose of intentionally or maliciously harming Sewell or...