ELLIS AYERS, JR. AND CAROL AYERS, APPELLANTS,
v.
THE CITY OF MIAMI AND PEOPLES GAS SYSTEM, INC., APPELLEES
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Ellis and Carol Ayers appealed summary judgments granted in favor of the City of Miami and Peoples Gas System after Ellis was injured stepping into an uncapped gas valve box while crossing a street. The appellate court reversed, holding that defendants owed a duty of reasonable care to pedestrians even outside crosswalks and that constructive notice of the hazard presented genuine issues of material fact for a jury.
Summary judgment was improper because defendants owed pedestrians a duty to exercise reasonable care in maintaining the street even outside crosswalks. The evidence that the hazardous condition existed for two to three weeks raised a genuine factual issue regarding constructive notice that must be resolved by a jury, with plaintiff's knowledge of the condition relevant only to comparative negligence, not to defendants' initial liability.
[1] A municipality owes a duty of reasonable care to pedestrians to maintain streets in a safe condition, even in areas outside of designated crosswalks or intersections.
[2] The existence of constructive notice of a dangerous condition in a public street is a question of fact for the jury when the condition has existed for a sufficient period…
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Join FLexlaw to unlock all legal intelligence“The fact that the discrete and sizable hole in which the plaintiff was injured was in a portion of the street that was outside the cross-walk or intersection, did not, as a matter of law, relieve the defendants of their duty to pedestrians to exercise reasonable care in the repair of that portion of the street.”
Establishes that defendants' duty of reasonable care extends to all areas of the street they maintain, not just designated crossing areas.
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Join FLexlaw to unlock all legal intelligenceOn January 7, 1988, Ellis Ayers crossed N.W. 16th Street in Miami in a non-intersection manner to avoid an oncoming vehicle. While fleeing to the side…
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BARKDULL, Judge.
In these consolidated appeals the plaintiffs/appellants, Ellis Ayers, Jr. and his wife Carol, appeal from the entry of two adverse Summary Final Judgments in a negligence action.
On the evening of January 7, 1988, the plaintiff/appellant, Ellis Ayers, Jr., while en route to a laundromat, crossed N.W. 16th Street, from the north side of the street, where his apartment is located, to the south side of the street. Mr. Ayers did not cross at the intersection. As Ayers was crossing the street in what was described as a “catty corner” manner, a car rounded the corner and proceeded down the street towards him. In an effort to avoid being hit by the oncoming car, in his flight to the sidewalk on the south side of the street, Ayers stepped into an uncapped gas valve box, which was six to eight inches in circumference, thereby injuring himself. It was alleged by the plaintiff that the gas valve box cover had been missing for at least two weeks. The portion of N.W. 16th street where the incident occurred is located in and maintained by the City of Miami. Peoples Gas owned the gas valve box.
The Ayers filed a negligence action against the City of Miami and Peoples Gas, which alleged that the defendants negligently failed to correct an unsafe condition, of which they knew or should have known about. The defendants answered and moved for Final Summary Judgment. The trial court granted both motions. These appeals follows.
The trial court erred in granting Final Summary Judgment for the defendants. The fact that the discrete and sizable hole in which the plaintiff was injured was in a portion of the street that was outside the cross-walk or intersection, did not, as a matter of law, relieve the defendants of their duty to pedestrians to exercise reasonable care in the repair of that portion of the street.
The evidence was subject to the construction that the condition had existed for a period in excess of two to three weeks. Under the circumstances, the fact of constructive notice became an issue to be presented to a jury. See City of St. Petersburg v. Roach, 148 Fla. 316, 4 So. 2d 367 (1941); Camina v. Parliament Insurance Co., 417 So. 2d 1093 (Fla. 3d DCA 1982); Packer v. Winston Tower 100 Assoc., Inc., 377 So. 2d 46 (Fla. 3d DCA 1979); City of Miami v. Lawson, 104 So. 2d 600 (Fla. 3d DCA 1958). The fact that the plaintiff knew of the condition goes to his comparative negligence, and not to the defendant’s liability in the first instance. See Hoffman v. Jones, 280 So. 2d 431 (Fla.1973); Lynch v. Brown, 489 So. 2d 65 (Fla. 1st DCA 1986); Kolosky v. Winn Dixie Stores, Inc., 472 So. 2d 891 (Fla. 4th DCA 1985); Taylor v. Tolbert Enterprises, Inc., 439 So. 2d 991 (Fla. 1st DCA 1983); Metropolitan Dade County v. Yelvington, 392 So. 2d 911 (Fla. 3d DCA 1980); Bennett v. Mattison, 382 So. 2d 873 (Fla. 1st DCA 1980); Heath v. First Baptist Church, 341 So. 2d 265 (Fla. 2d DCA 1977); § 343A, Restatement (Second) of Torts.
Therefore, since genuine issues of material fact remain, the final summary judgments are reversed and the matter is returned to the trial court for further proceedings. Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
Reversed and remanded.
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Grier v. Metro. Dade Cnty., 660 So. 2d 273 (Fla. 3d DCA 1995)…o us that sidewalks and crosswalks devoted to the use of pedestrians would require greater care and attention than the remainder of the street given over to the passage of vehicles. 148 Fla. at 610, 4 So. 2d at 876; see also Ayers v. City of Miami, 578 So. 2d 302, 303 (Fla. 3d DCA) (fact that plaintiff was injured in portion of street outside the crosswalk or intersection did not relieve city of its duty to pedestrians to exercise reasonable care), review denied, 591 So. 2d 180, 183 (Fla.1991); cf. 19 Eugene…
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Rosemond Turner v. Winn-Dixie Food Stores, Inc., 651 So. 2d 827 (Fla. 5th DCA 1995)…of the asphalt which has deteriorated substantially from its original condition. If the parking lot was in a state of disrepair, the condition may well have been at least a contributing cause of the accident. As the court in Ayers v. City of Miami, 578 So. 2d 302, 304 (Fla. 3d DCA), rev. denied, 591 So. 2d 180 (Fla.1991), noted in a case involving an uncapped gas valve box cover, “[t]he fact that the plaintiff knew of the condition goes to his comparative negligence, and not to the defendant’s liability in t…
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Leonard v. Wakulla Cnty., 688 So. 2d 440 (Fla. 1st DCA 1997)…r the appellant actually knew of the danger — “presents only an issue of comparative negligence that does not completely bar recovery_” Hancock v. Department of Corrections, 585 So. 2d 1068, 1071 (Fla. 1st DCA 1991); see also Ayers v. City of Miami, 578 So. 2d 302, 304 (Fla. 3d DCA 1991). Here, there is no evidence as to whether the danger was readily apparent to the public. As a result, since it cannot be said that there is a complete absence of any genuine issue of material fact as to the .open and obvious…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Melena Bennett and Harry Bennett v. Mattison, 382 So. 2d 873 (Fla. 1st DCA 1980)
- Metro. Dade Cnty. v. Yelvington, 392 So. 2d 911 (Fla. 3d DCA 1980)
- In the Interest v. McD., 472 So. 2d 891 (Fla. 4th DCA 1985)
- Lynch v. Brown, 489 So. 2d 65 (Fla. 1st DCA 1986)
- City of St. Petersburg v. Roach, 4 So. 2d 367 (Fla. 1941)
- Gordon v. Gordon, 417 So. 2d 1093 (Fla. 3d DCA 1982)
- Zelma Heath and Lawrence Heath v. First Baptist Church, 341 So. 2d 265 (Fla. 2d DCA 1977)
- Taylor v. Tolbert Enters., Inc., 439 So. 2d 991 (Fla. 1st DCA 1983)