BRENDA LISANTI, APPELLANT,
v.
CITY OF PORT RICHEY, APPELLEE
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Brenda Lisanti appeals a summary judgment dismissing her negligence claim against the City of Port Richey for injuries sustained when she struck a rock and fell into a pothole on a city-maintained roadway. The appellate court reversed, finding disputed issues of material fact regarding the City's constructive notice of the dangerous condition.
The court reversed the summary judgment because disputed issues of material fact exist regarding whether the City had constructive notice of the pothole. A municipality can be held liable for defects existing long enough to allow discovery through reasonable care, and the duration and size of the pothole present fact questions relevant to constructive notice.
[1] A municipality can be held liable for injuries occasioned by defects existing for a sufficient length of time to allow discovery by the exercise of reasonable care.
[2] A factual issue regarding a municipality's constructive notice of a dangerous condition on a roadway can preclude summary judgment.
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Join FLexlaw to unlock all legal intelligence“[A] municipality can be held liable for injuries occasioned by defects existing for a sufficient length of time to allow discovery by the exercise of reasonable care.”
Establishes the legal standard for municipal liability based on constructive notice of dangerous conditions
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Join FLexlaw to unlock all legal intelligenceLisanti was riding a bike on a roadway maintained by the City of Port Richey when she struck a rock, fell into a pothole, and was injured. She asserte…
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BLUE, Acting Chief Judge.
Brenda Lisanti sued the City of Port Richey for negligence arising out of the City’s alleged failure to properly maintain a roadway; she appeals an adverse summary judgment. Because there are disputed issues of material fact, we reverse.
Lisanti alleged that she was riding a bike on a roadway under the City’s control when she struck a rock and ran into a pothole, causing her to fall from her bike and suffer injuries. In her affidavit, Lisanti asserted that the pothole had existed for two to three weeks prior to her accident. She alleged that the accident resulted from the City’s negligent maintenance of the roadway. In its motion for summary judgment, the City argued that the rock either did not constitute a dangerous condition or was so open and obvious that there was no duty to warn; the City also argued that there was no evidence it was on notice of a dangerous condition. In support of this latter argument, the City filed an affidavit by the City Clerk, stating that there was no record of complaints regarding rocks or potholes in that area of the roadway.
The elements for negligence are duty, breach, harm, and proximate cause; the additional elements for a claim of premises liability include the defendant’s possession or control of the premises and notice of the dangerous condition. See Davis ex rel. Davis v. Bell, 705 So. 2d 108 (Fla. 2d DCA 1998).
Although the City asserted that it had no actual notice, we conclude that there is a factual issue regarding the City’s constructive notice. See Turner v. Winn-Dixie Food Stores, Inc., 651 So. 2d 827 (Fla. 5th DCA 1995) (reversing summary judgment in premises liability case based on disputed issue regarding store’s constructive notice of pothole). “[A] municipality can be held liable for injuries occasioned by defects existing for a sufficient length of time to allow discovery by the exercise of reasonable care.” Turner, 651 So. 2d at 828 (quoting Martin v. Consolidated City of Jacksonville, 483 So. 2d 804, 806 (Fla. 1st DCA 1986)).
We must reverse the summary judgment, as the Fourth District did in Barrett v. Department of Transportation, 546 So. 2d 1175, 1176 (Fla. 4th DCA 1989), because “[t]his matter clearly presents an issue of fact ... as to how long the pothole was present, as well as the size of the pothole, as it would relate to actual or constructive notice to appellee.” We note that Lisanti’s knowledge of the pothole does not bar this claim, but this fact is relevant to the determination of her comparative negligence. See Regency Lake Apartments Assocs., Ltd. v. French, 590 So. 2d 970 (Fla. 1st DCA 1991).
Summary judgment should be granted only when there are no disputed issues of material fact. See D'Attilio v. Fifth Ave. Bus. Ass’n, 710 So. 2d 117 (Fla. 2d DCA 1998). Because an issue of fact exists regarding the City’s constructive notice of the pothole, we conclude that the trial court erred by granting summary judgment on Lisanti’s claim that the City breached its duty to maintain the roadway in a reasonably safe condition. See, e.g., Turner, 651 So. 2d 827; Barrett, 546 So. 2d 1175. Accordingly, we reverse.
Reversed and remanded for further proceedings.
FULMER and DAVIS, JJ., concur.
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Saed Mashni v. LaSALLE P'rs Mgmt. Ltd., 842 So. 2d 1035 (Fla. 4th DCA 2003)…, the defendants should have been aware that shoppers would encounter the danger. The fact that Mashni was aware of the water does not bar his claim, but is relevant to the determination of comparative negligence. See Lisanti v. City of Port Richey, 787 So. 2d 36, 37 (Fla. 2d DCA 2001). We reverse the summary judgment and remand for further proceedings. REVERSED. WARNER and STEVENSON, JJ., concur. . The Court stated: We decline in this opinion to address the effect, validity, or applicability of this le…
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Bechtel Corp. v. Batchelor, 250 So. 3d 187 (Fla. 3d DCA 2018)…ls. The record reveals that Batchelor is correct. A premises liability claim is, at bottom, a negligence claim with the added elements of possession/control of the premises, and notice of the dangerous condition. See Lisanti v. City of Port Richey, 787 So. 2d 36, 37 (Fla. 2d DCA 2001) (observing: "The elements for negligence are duty, breach, harm, and proximate cause; the additional elements for a claim of premises liability include the defendant's possession or control of the premises and notice of the da…
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Miami-Dade Cnty. v. Eliodoro Hoyos and Aleida Hoyos, 874 So. 2d 639 (Fla. 3d DCA 2004)…3); Grier v. Metropolitan Dade County, 660 So. 2d 273 (Fla. 3d DCA 1995). Generally, the issue of constructive notice is best left to a jury when there is evidence presented in support of the existence of such notice. Lisanti v. City of Port Richey, 787 So. 2d 36 (Fla. 2d DCA 2001). We find the plaintiffs evidence herein sufficient to warrant submission of the issue to the jury. Accordingly, we affirm the judgment entered below. GERSTEN, J., concurs.…
Previewing 3 of 42 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Regency Lake Apts. Assocs., Ltd. v. French, 590 So. 2d 970 (Fla. 1st DCA 1991)
- Rosemond Turner v. Winn-Dixie Food Stores, Inc., 651 So. 2d 827 (Fla. 5th DCA 1995)
- Davis v. Bell, 705 So. 2d 108 (Fla. 2d DCA 1998)
- Rumlin v. State, 483 So. 2d 804 (Fla. 1st DCA 1986)
- Martin v. The Consol. City OF Jacksonville, 483 So. 2d 804 (Fla. 1st DCA 1986)
- Barrett v. State, 546 So. 2d 1175 (Fla. 4th DCA 1989)
- D'Attilio v. Fifth Ave. Bus. Ass'n, Inc., 710 So. 2d 117 (Fla. 2d DCA 1998)