Wagner v. City of Hialeah

• Decision Date: 11 December 1984
• Docket Number: No. 84-211,84-211
• Citation: 462 So.2d 482
• Parties: Ward WAGNER and Debra Wagner, individually, and as husband and wife, and John E. Buzzuto, as Trustee of Hialeah Plaza Land Trust, Appellants, v. CITY OF HIALEAH, a municipal corporation, Metropolitan Dade County, a political subdivision, Anthony R. Abraham and Genevieve Abraham, and Ana Balance, jointly and severally, Appellees.
• Court: Florida District Court of Appeals

Page 482

462 So.2d 482

Ward WAGNER and Debra Wagner, individually, and as husband and wife, and John E. Buzzuto, as Trustee of Hialeah Plaza Land Trust, Appellants, v. CITY OF HIALEAH, a municipal corporation, Metropolitan Dade County, a political subdivision, Anthony R. Abraham and Genevieve Abraham, and Ana Balance, jointly and severally, Appellees.

No. 84-211.

District Court of Appeal of Florida Third District.

Dec. 11, 1984.

Rehearing Denied Feb. 8, 1985.

Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Cohen, Logan & Kandell, Gerald E. Rosser, Miami, for appellants.

Anderson, Moss, Russo & Gievers, Daniels & Hicks and Louise H. McMurray, Miami, for appellees.

Before HENDRY, BASKIN and JORGENSON, JJ.

PER CURIAM.

We affirm the summary judgment entered in favor of the defendants, the Abrahams, upon a holding that a former owner of real property which has been twice sold and owned by other persons during an eight year period prior to the accident in question cannot be liable for an open and obvious and therefore patent design or construction defect (pillars obscuring view) involving ingress and egress from a shopping center driveway. See Grall v. Risden, 167 So.2d 610 (Fla. 2d DCA 1964), cert. denied, 174 So.2d 736 (Fla.1965).

BASKIN, Judge (dissenting).

I disagree with the majority opinion because I find that genuine issues of material fact remain to be decided, Holl v. Talcott, 191 So.2d 40 (Fla.1966). I would therefore reverse the summary judgment entered in favor of the Abrahams.

The Wagners brought an action to recover damages for injuries they sustained when their motorcycle was struck by a car turning left as it exited from Hialeah Plaza. The Wagners predicated their action against the Abrahams on the ground that as the original owners and builders of the shopping center, the Abrahams remained liable for damages resulting from the dangerous placement of the driveway and from the dangerous condition created by two large pillars bounding the driveway and obscuring the vision of motorists leaving the shopping center.

The Wagners alleged that the Abrahams were negligent in building or allowing the driveway to be built too close to the intersection, in failing to prohibit vehicles from turning left, in constructing the pillars, and in failing to obtain a permit for the driveway. The Abrahams requested summary judgment, asserting that eight years before the accident occurred, they had sold the property to Twelfth Hialeah Corporation, which, in turn, sold the property to Hialeah Land Trust, John Buzzuto, trustee. Thus, they maintained, they were absolved from liability for any defects in the shopping center which may have existed at the time of the accident. The trial court entered summary judgment in favor of the Abrahams. The court ruled that if the location of the driveway and pillars constituted a defect, the defect was patent and the Abrahams were no longer liable.

Ordinarily, a vendor of real estate is relieved of liability for defects upon the land when it transfers the property to a vendee who has a reasonable opportunity to correct the faults. Anderson v. Cosmopolitan National Bank of Chicago, 54 Ill.2d 504, 507, 301 N.E.2d 296, 298 (1973); Carlson v. Hampl, 284 Minn. 85, 87, 169 N.W.2d 56, 57 (1969); Gasteiger v. Gillenwater, 57 Tenn.App. 206, 211, 417 S.W.2d 568, 571 (1966); Restatement (Second) of Torts, § 352 (1965); 48 A.L.R.3d 1027, 1031.

An exception to the general rule arises when the vendor has created a condition on the land which presents an unreasonable risk of injury to persons outside the land; in that case, the vendor remains liable until the vendee discovers the condition and has had a reasonable opportunity to correct the problem. Restatement (Second) of Torts, § 373 (1965); 48 A.L.R.3d 1027, 1032. See Cogliati v. Ecco High Frequency Corp., 92 N.J. 402, 456 A.2d 524 (1983); Merrick v. Murphy, 83 Misc.2d 39, 371 N.Y.S.2d 97 (Sup.Ct.1975); Narsh v. Zirbser Brothers, Inc., 111 N.J.Super. 203, 268 A.2d 46 (1970); Cavanaugh v. Pappas, 91 N.J.Super. 597, 222 A.2d 34 (Cty.Ct.1966).

In the case before us, the location of the pillars is, as the majority holds, an obvious and patent defect for which the former owners of the property should not remain accountable; however, the danger created by the placement of the driveway is not necessarily obvious. That the placement of the driveway may have constituted a defect became clear from the testimony in the deposition of Miles Elliot Moss, an expert witness for the injured parties. He testified that the placement of the driveway created a dangerous condition because the driveway was too close to a major intersection. In support of his opinion, he cited standards employed by architects and engineers...