DEBORAH WARREN, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Deborah Warren was injured when she swerved off a sidewalk to avoid concrete debris and fell into an adjacent ditch with soft sand. The court reversed summary judgment for the Department of Transportation, holding that the open and obvious nature of the concrete hazard does not bar liability as a matter of law when a bicyclist cannot reasonably avoid it, and the condition of the adjacent ditch may constitute a foreseeable hazard.
The court held that the open and obvious nature of a hazard does not render a defendant's conduct the sole legal cause of an injury when, given the momentum of a bicycle, the plaintiff could not reasonably avoid the hazard. Additionally, the court found factual questions existed regarding whether the DOT breached a duty of care by maintaining the adjacent ditch in a negligent condition that presented a foreseeable danger to sidewalk users.
[1] The mere fact that a hazard is visible does not preclude a finding that it was not the sole legal cause of an accident, especially when momentum makes avoidance difficult…
[2] A jury may consider whether a plaintiff's conduct in approaching a hazard was only comparatively negligent, or not contributorily negligent at all, when the hazard was pr…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“given the momentum provided by the plaintiffs bicycle, which made it — or so a jury could say — not reasonably possible for her safely to avoid the hazard presented by the pieces of concrete, that the mere fact that they were there to be seen does not render her own conduct in approaching them the sole legal cause of the accident”
Establishes that visibility of a hazard does not bar liability when the momentum of a bicycle makes avoidance physically impossible
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWarren was riding her bicycle on a DOT-controlled sidewalk in North Dade County when she encountered pieces of concrete left on the walkway during rep…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Foreseeable Danger cases and more on FLexlaw
SCHWARTZ, Chief Judge.
The plaintiff, Deborah Warren, was riding her bicycle on a sidewalk in North Dade County which was in the control of the Department of Transportation. As she approached an area under repair, several pieces of concrete left on the sidewalk impeded her progress. Although she attempted to keep her bike on the walkway, she was unable to do so, and went off the sidewalk into an adjacent ditch from which the sod had been removed and soft sand left in its place. The sand caused the bicycle to go out of control and she was injured. This appeal is from a summary judgment rendered for the DOT apparently on the ground that the pieces of concrete were so “open and obvious” as to render the defective condition of the sidewalk and the adjacent ditch nonactionable as a matter of law.
We disagree and reverse. It seems perfectly clear,1 given the momentum provided by the plaintiffs bicycle, which made it — or so a jury could say — not reasonably possible for her safely to avoid the hazard presented by the pieces of concrete, that the mere fact that they were there to be seen does not render her own conduct in approaching them the sole legal cause of the accident. Stahl v. Metropolitan Dade County, 438 So. 2d 14, 22-23 (Fla. 3d DCA 1983); see Camillo v. Department of Transp., 546 So. 2d 4 (Fla. 3d DCA 1988), review denied, 547 So. 2d 1209 (Fla.1989). Compare Pope v. Cruise Boat Co., 380 So. 2d 1151 (Fla. 3d DCA 1980) (pedestrian). Compare also Gloris v. Williams Paving Co., 556 So. 2d 748 (Fla. 3d DCA 1989) (pedestrian).
The record thus presents jury questions as to whether her riding the bike was either only comparatively negligent, or not contributorily negligent at all, and whether, conversely, the DOT’s negligence as to the sidewalk was a, or the sole legal cause of the accident. See Bryant v. Lucky Stores, Inc. (Fla. 2d DCA Case no. 89-01761, opinion filed, March 9, 1990) [15 FLW D659]; Metropolitan Dade County v. Yelvington, 392 So. 2d 911 (Fla. 3d DCA 1980), reviewed denied, 389 So. 2d 1113 (Fla.1980); Isenberg v. Ortona Park Recreational Center, Inc., 160 So. 2d 132 (Fla. 1st DCA 1964).2
In addition, a factual issue was raised as to whether the defendant breached a duty of due care to those on the sidewalk by maintaining the immediately adjacent ditch in a negligent condition which would present a foreseeable danger to them. City of Pensacola v. Stamm, 448 So. 2d 39 (Fla. 1st DCA 1984), pet. for review denied, 456 So. 2d 1181 (Fla.1984); State Dep’t of Transp. v. Manning, 288 So. 2d 289, 291 (Fla. 2d DCA 1974) (“The drop off was of such a nature and sufficiently close to the travelled surface as to permit the jury to conclude that it constituted an unreasonable hazard.”), cert. denied, 295 So. 2d 307 (Fla.1974); see Gloris, 556 So. 2d at 748.
Reversed.
. Indeed, it is open and obvious.
. There is no doubt that a jury could find that the condition of the sidewalk was a legal cause of the injury resulting from the natural instinctive reaction in avoiding the danger on the sidewalk and encountering the defective condition of the adjacent ditch. See Stahl v. Metropolitan Dade County, 438 So. 2d at 14; Cantillo v. Department of Transp., 546 So. 2d at 4.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Regency Lake Apts. Assocs., Ltd. v. French, 590 So. 2d 970 (Fla. 1st DCA 1991)…cutter, caused his own injuries in view of his awareness of the hazardous condition was an issue of comparative negligence to be determined by the jury). See also Bennett v. Mattison, 382 So. 2d at 875; Warren v. State, Department of Transportation, 559 So. 2d 387 (Fla. 3d DCA 1990). Hence, the summary judgment cannot be sustained solely because Hancock knew of the dangerous condition of the stairway handrail. Hancock, supra at 1071-72. III. Ownership, Control and Ability to Correct the Defect Regency asse…
-
Hancock v. Dep't OF Corr., 585 So. 2d 1068 (Fla. 1st DCA 1991)…caused his own injuries in view of his awareness of the hazardous condition was an issue of comparative negligence to be [*1072] determined by the jury). See also Bennett v. Mattison, 382 So. 2d at 875; Warren v. State, Department of Transportation, 559 So. 2d 387 (Fla. 3d DCA 1990).1 Hence, the summary judgment cannot be sustained solely because Hancock knew of the dangerous condition of the stairway handrail. The circuit court also erred in granting the motion for summary judgment because genuine issues of…
-
Turner v. City OF Tallahassee, 566 So. 2d 871 (Fla. 1st DCA 1990)…CA), petition for review denied, 456 So. 2d 1181 (Fla.1984), or the person took evasive action to avoid, a dangerous condition on a sidewalk and encountered the defective condition in an immediately adjacent ditch, Warren v. Dep’t of Transportation, 559 So. 2d 387 (Fla. 3d DCA 1990). Further, one confronted with a sudden emergency not of his own making is not held to the same degree of prudence otherwise expected. When he encounters a sudden drop-off of such a nature and proximity to the traveled surface, it…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Stahl v. Metro. Dade Cnty., 438 So. 2d 14 (Fla. 3d DCA 1983)
- Isenberg v. Ortona Park Recreational Ctr., Inc., 160 So. 2d 132 (Fla. 1st DCA 1964)
- Metro. Dade Cnty. v. Yelvington, 392 So. 2d 911 (Fla. 3d DCA 1980)
- Linda Gale Pope et vir. v. Cruise Boat Co., Inc., 380 So. 2d 1151 (Fla. 3d DCA 1980)
- Cousins Assocs., Inc. v. Cousins, 380 So. 2d 1151 (Fla. 3d DCA 1980)
- City OF Pensacola v. Stamm, 448 So. 2d 39 (Fla. 1st DCA 1984)
- State v. Manning, 288 So. 2d 289 (Fla. 2d DCA 1974)
- Piedmont Sewing Supply, Inc. v. Am. Emp'rs' Ins. Co., 295 So. 2d 307 (Fla. 1974)
- Camillo v. Dep't OF Transp., 546 So. 2d 4 (Fla. 3d DCA 1988)
- State v. Cummings, 546 So. 2d 4 (Fla. 3d DCA 1988)