SAMUEL B. POWELL, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, APPELLEE
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The court held that the Department of Transportation owed no duty to a motorcyclist injured on a sidewalk, and summary judgment was therefore proper.
Plaintiff was injured while riding his motorcycle on a sidewalk maintained by the Department of Transportation, allegedly to provide emergency assista…
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LAWRENCE, Judge.
Samuel B. Powell (Powell) was injured while riding his motorcycle on an allegedly defective sidewalk, on August 30, 1989, in Okaloosa County. The sidewalk is maintained by the Florida Department of Transportation (DOT). Powell’s complaint alleges that he was on the sidewalk “to give emergency assistance.” The trial judge granted DOT’s motion for summary judgment, holding that DOT owed no duty to Powell, and that Powell’s sidewalk-riding in violation of a statute1 was unforeseeable. Powell appeals.
We agree that DOT owed no duty to Powell and therefore summary judgment was proper. “Duty” is an essential element of any negligence action; the presence or absence of duty is a legal question. See McCain v. Florida Power Corp., 593 So. 2d 500, 502 (Fla.1992) (duty is a “minimal threshold legal requirement for opening the courthouse doors”). This court has observed: “If no reasonable duty has been abrogated, no negligence can be found. A person is not required to take measures to avoid a danger which the circumstances as known to him do not suggest as likely to happen.” Cassel v. Price, 396 So. 2d 258, 264 (Fla. 1st DCA) (citation omitted), review denied, 407 So. 2d 1102 (Fla.1981).
DOT had no duty to foresee, as likely to happen, the use of a sidewalk by a motorcyclist. The trial judge correctly determined that because DOT owed no duty to make sidewalks safe for motorcycle traffic, no cause of action existed as a matter of law.
We therefore affirm the trial court.
SMITH and KAHN, JJ., concur. . 316.1995, Fla.Stat. (1989).
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Cited By
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Fla. Power & Light Co. v. Periera, 705 So. 2d 1359 (Fla. 1998)…HARDING, Justice. We have for review the decision in Periera v. Florida Power & Light Co., 680 So. 2d 617 (Fla. 4th DCA 1996), which certified conflict with the decision in Powell v. Florida Department of Transportation, 626 So. 2d 1008 (Fla. 1st DCA 1993), on the issue of whether a potential tortfeaser is relieved of the duty owed to an injured party because of the injured party’s violation of a statute. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Co…
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Periera v. Fla. Power & Light Co., 680 So. 2d 617 (Fla. 4th DCA 1996)…inue the summary judgment hearing. In concluding that FP & L had no duty to plaintiff because motorcyclists are prohibited by statute from driving on a bike path or sidewalk, the trial court relied on Powell v. Florida Department of Transportation, 626 So. 2d 1008 (Fla. 1st DCA 1993), rev. denied, 639 So. 2d 980 (Fla.1994). In Powell plaintiff sued the DOT as a result of being injured while riding his motorcycle on a defective sidewalk maintained by the DOT. Citing the same statute as is involved in this case…
Authorities Cited
- McCAIN v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992)
- Cassel v. Price, 396 So. 2d 258 (Fla. 1st DCA 1981)
- Cooper v. State, 396 So. 2d 258 (Fla. 1st DCA 1981)