Whitt v. Silverman

• Decision Date: 03 May 2001
• Docket Number: No. SC95533.,SC95533.
• Citation: 788 So.2d 210
• Parties: Ileana WHITT, etc., et al., Petitioners, v. Eli SILVERMAN, et al., Respondents.
• Court: Florida Supreme Court

788 So.2d 210

Ileana WHITT, etc., et al., Petitioners, v. Eli SILVERMAN, et al., Respondents.

No. SC95533.

Supreme Court of Florida.

May 3, 2001.

Todd R. Schwartz of Ginsberg & Schwartz, Miami, FL; and Ratiner, Reyes & O'Shea, P.A., Miami, FL, for Petitioners.

Scott A. Cole and Helen Lee Miranda of Josephs, Jack & Gaebe, P.A., Miami, FL, for Respondents.

ANSTEAD, J.

We have for review Whitt v. Silverman,¹ 732 So.2d 1106 (Fla. 3d DCA 1999), based on express and direct conflict with the decision in McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992), and decisions that have applied McCain.² We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. At issue in this case is whether McCain's foreseeability analysis applies in determining whether a landowner operating a commercial gas station owes a duty of care to persons who may be injured as a result of natural conditions or landscaping on the landowner's property, but where the injury actually occurs off the property. Because we conclude that a strict rule absolving a landowner of responsibility under the circumstances presented here conflicts with our analysis in McCain, we quash the ruling below.

FACTS AND PROCEEDINGS TO DATE

The essential facts are described by the Third District:

Defendant-appellees ("landowners") operate an Amoco service station on Collins Avenue on Miami Beach. While leaving the service station premises in her car, service station customer Jean Simoneau struck two pedestrians, killing one and injuring the other.

Plaintiffs filed this personal injury action against the landowners, among others. Plaintiffs allege that the landowners had a dense stand of foliage between their service station and the adjacent property. Plaintiffs say that the foliage impaired the driver's view of the sidewalk, thus causing or contributing to the accident. However, the foliage was entirely on the landowner's property, and did not protrude into the public way. The trial court dismissed plaintiffs' claims for negligence and violation of a Miami-Dade County ordinance.

Whitt, 732 So.2d at 1107-08 (footnotes omitted). The district court affirmed the dismissal of the common law negligence claim, but reversed the dismissal of the claim predicated upon the violation of a Miami-Dade County ordinance regulating foliage. See id. With respect to the negligence claim, the Third District acknowledged our ruling in McCain, but concluded that McCain did not apply, and that McCain had no effect on earlier cases absolving landowners of responsibility for any danger created by foliage growing on their property. See id. at 1108. The district court applied the reasoning of a line of accident cases barring liability for visual obstructions created by foliage growing on a landowner's property that did not protrude onto the public way. See id. The holding relied upon the so-called "agrarian rule," which provides that a "landowner has a right to use and enjoy his property in any manner he sees fit." Id. (quoting Morales v. Costa, 427 So.2d 297, 298 (Fla. 3d DCA 1983)).³

LAW AND ANALYSIS

While we conclude that the district court's application of a rule of no liability under the circumstances presented is inconsistent with our analysis in McCain, we must acknowledge there is a distinct lack of unanimity throughout the country regarding the appropriate duty, if any, that should be imposed on a landowner for visual obstructions of an adjoining roadway caused by the location of foliage on the landowner's property. See Kolba v. Kusznier, 252 N.J.Super. 53, 599 A.2d 194, 196 (Law Div.1991)

. Many jurisdictions have imposed a reasonable duty of care on landowners, similar to the rule announced in McCain, while others have continued to apply an absolute rule of no liability for such conditions. We conclude that the application of an absolute rule under the circumstances presented here is inconsistent with our prevailing negligence law and modern conditions.

AGRARIAN RULE

The so-called "agrarian rule" provides that a landowner owes no duty to persons who are not on the landowner's property and therefore a landowner is not responsible for any harm caused to them by natural conditions on the land. See Restatement (Second) of Torts § 363(a) (1965); 5 Fowler V. Harper et al., The Law of Torts § 27.19, at 308-09 (2d ed. 1986 & Supp.1991); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 57, at 390 (5th ed. 1984 & Supp.1988). Commentators trace the ancient origins of this rule to times when much land was unsettled or uncultivated, and the burden of inspecting it and putting it in a safe condition by the owner would have been unduly onerous and out of all proportion to any harm likely to result. See Keeton et al., supra, § 57, at 390; see also Evans v. Southern Holding Corp., 391 So.2d 231, 233 (Fla. 3d DCA 1980) (Schwartz, J., dissenting) (citing Roberts v. Harrison, 101 Ga. 773, 28 S.E. 995 (1897)). The rule was predicated upon a perceived public policy that "a landowner has a right to use and enjoy his property in any manner he sees fit." Morales v. Costa, 427 So.2d 297, 298 (Fla. 3d DCA 1983).⁴ Early supporters of the rule also reasoned that because a natural condition is by definition one which no human being created, a landowner was free from any duty to change or maintain it in order to prevent harm.⁵See Sprecher v. Adamson Companies, 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121, 1125 (1981)

.

Despite its dated origins, many courts have continued to apply the agrarian rule to bar actions in changed conditions, including those based on claims that natural or artificial conditions on a landowner's private property constituted an unsafe condition and obstructed the view of motorists.⁶ One rationale for adhering to the rule in these cases has been that motorists are in a better position to prevent accidents than landowners, and thus motorists, rather than landowners, should be charged with the duty to anticipate and avoid such accidents. See, e.g., Bassett v. Edwards, 158 Fla. 848, 30 So.2d 374, 376 (1947) (holding it was the duty of both drivers to observe foliage at an intersection and to operate their vehicles as required under prevailing conditions because every user of a highway is required to exercise reasonable care for his own safety and protection).

The traditional rule was initially developed and applied only to natural conditions on a landowner's property, and not to artificial ones created by the landowner.⁷ Consistent with that distinction, for example, the authors of sections 364 and 368 respectively of the Restatement (Second) of Torts would impose a duty on landowners for injuries to persons and travelers on adjacent lands and highways caused by the placement of artificial conditions on a landowner's property.⁸ However, some courts have criticized attempts to construct a rule of liability predicated solely upon the distinction between artificial and natural conditions. See, e.g., Sterling v. Weinstein, 75 A.2d 144, 147 (D.C.1950)

; Mahurin, 28 Ill.Dec. 356, 390 N.E.2d at 524 (Ill.App. 1979); Hasapopoulos v. Murphy, 689 S.W.2d 118 (Mo.Ct.App.1985); Rowe v. McGee, 5 N.C.App. 60, 168 S.E.2d 77, 79 (N.C.Ct.App.1969); Harvey v. Hansen, 299 Pa.Super. 474, 445 A.2d 1228, 1231 (1982).

URBAN V. RURAL LANDS

Courts have also drawn a distinction in application of the "agrarian rule" based on location of the property in an urban or rural setting. These courts have reasoned that adhering to a no liability rule may be appropriate in rural areas, although there is no valid basis for its continued use in urban and other developed areas where artificial landscaping or other conditions may be more likely to impact traffic safety. See Mahurin, 71 Ill.App.3d at 692-93, 28 Ill.Dec. 356, 390 N.E.2d 523; Hasapopoulos, 689 S.W.2d at 120; Barker v. Brown, 236 Pa.Super. 75, 340 A.2d 566, 569 (1975). These decisions are reflected in the views of the Restatement where section 363(1) of the Restatement (Second) of Torts recognizes the traditional rule of no liability,⁹ while section 363(2) imposes a duty on possessors of land in urban areas. Specifically, section 363(2) provides: "A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk arising from the condition of trees on the land near the highway."¹⁰ Several courts have expressly adopted section 363(2). See, e.g., Valinet v. Eskew, 574 N.E.2d 283, 285 (Ind.1991)

("We agree that the differing duties placed on owners of land with respect to differing demographics [referring to the urban/rural distinction] is correct. We therefore adopt § 363 of the RESTATEMENT."); see also Zapata v. Kariyaparambil, 1997 WL 566222, at *3.

McCAIN v. FLORIDA POWER

In contrast to the rather narrow focus of the so-called agrarian rule, this Court in McCain attempted to restate the general principles of negligence law and clarify the role that foreseeability plays in evaluating the duty and proximate cause elements of a common law negligence claim. In this context, we noted that although foreseeability relates to both duty and proximate cause, it does so in different ways:

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. In other words, the 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. As is obvious, a defendant might be under a legal duty of care to a specific plaintiff, but still not be liable for

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