final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County No.
10-38782, Thomas J. Rebull, Judge.
Schlesinger Law Offices, P.A., and Gregg A. Schlesinger and
Zane Berg (Fort Lauderdale); Brannock & Humphries, and
Shea T. Moxon and Celene Humphries (Tampa), for appellant.
Santaniello, Petrillo & Jones, and Daniel J. Santaniello,
Edgardo Ferreyra, Jr., Shana P. Nogues, and Heather M.
Calhoon, for appellee.
ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
Sewell lost control of her vehicle and hit a palm tree after
her car was allegedly cut off by an unknown vehicle that took
a left-hand turn from a gas station and abruptly joined the
lane of traffic in which Sewell was traveling. In doing so,
the unknown vehicle traveled through a cut in the concrete
median provided for traffic. Sewell sued Racetrac Petroleum,
Inc., the corporation that owned, developed, and operated the
gas station, in large part because Racetrac created a
dangerous condition when it lobbied the local county
government to create the cut in the median to promote access
to its property.
appeals the dismissal of her negligence action against
Racetrac, the denial of her motion to plead punitive damages,
and the denial of her motion for spoliation damages. We
affirm without discussion the denial of the motion to plead
punitive damages and the denial of her motion for spoliation
damages. Regarding the dismissal of her case, we affirm in
part and reverse in part.
to the complaint, on August 29, 2007, Sewell was driving
eastbound on Northeast 8th Street in Homestead, Florida.
Northeast 8th Street is a four-lane road with two eastbound
lanes of traffic and two westbound lanes divided by a
concrete median. Racetrac's gas station is located on the
northern side of Northeast 8th Street. Opposite the gas
station, there is a cut in the concrete median. The cut
allows vehicles traveling east on Northeast 8th Street to
enter a turn lane at the cut and use the cut to turn left
into the gas station. It also allows vehicles exiting the gas
station to turn left out of the gas station and go eastbound
on Northeast 8th Street.
alleges that as she approached the gas station, an unknown
vehicle exited the gas station, traversed the cut, turned
left, and joined the eastbound lane of travel in which Sewell
was also traveling. As a result, Sewell lost control of her
vehicle, hit a palm tree, and suffered injuries. Sewell did
not allege that either car's view was obscured or
complaint presents two legal theories. The main legal theory
is that Racetrac's application to obtain the cut in the
concrete median to facilitate traffic into and out of the
property was tortious because Racetrac "knew or should
have known that opening the median to allow 'full
access' would . . . pose an undue risk of harm to the
motoring public" and "[i]f the median had not been
removed to permit vehicles exiting the subject gas station to
turn left, the subject collision would not have
1977, Racetrac agreed to purchase the property only if the
governing agencies approved the cut in the median. In
obtaining approval from Miami-Dade County, Racetrac submitted
one traffic study that used the Institute of Transportation
Engineers Trip Generation category for "Convenience
Market with Gas Pumps." Sewell alleges that "there
were other categories . . . that would have been more
applicable to Racetrac." Racetrac also submitted another
traffic study that should have been based on a different set
of its existing stores. Sewell further alleges that Racetrac,
through "bribery and corruption, " obtained the
support of its application from City of Homestead officials,
although, as the complaint admits, "city officials
don't get to decide whether the median gets removed or
not (county officials do)."
complaint presents a second theory of liability that Racetrac
negligently failed to make adjustments on its own property to
deal with the alleged danger presented to the traveling
public by vehicles turning left out of its property. In
particular, Sewell alleged that Racetrac painted driveway
markings that encouraged customers to turn left out of its
property when it knew or should have known that such turns
presented an unreasonable danger.
filed a motion to dismiss, which the trial court granted
after briefing and an extensive argument. This appeal
reviewing a motion to dismiss, the truth of the allegations
is assumed. See Xavier v. Leviev Boymelgreen Marquis
Developers, LLC, 117 So.3d 773, 775 (Fla. 3d DCA 2012)
("In ruling on a motion to dismiss, all well-pled facts
in the complaint are accepted as true.").
trial court dismissed the complaint because it found that
Racetrac owed no legal duty to Sewell. At the outset, we note
that while the tort of negligence requires the establishment
of duty, breach, proximate cause, and damages, it is for the
court to determine the existence of a duty. "Duty is the
standard of conduct given to the jury for gauging the
defendant's factual conduct." McCain v. Florida
Power Corp., 593 So.2d 500, 503 (Fla. 1992). It
"exists as a matter of law and is not a factual question
for the jury to decide." Id.
touchstone for determining whether a duty exists is
"foreseeability." Id. "[W]here a
person's conduct is such that it creates a
'foreseeable zone of risk' posing a general threat of
harm to others, a legal duty will ordinarily be recognized to
ensure that the underlying threatening conduct is carried out
reasonably." Williams v. Davis, 974 So.2d 1052,
1056 (Fla. 2007). In a few "exceptional" areas of
the law, however, a legal duty is sometimes not recognized or
is substantially curtailed even if the risk is foreseeable.
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7 (Am. Law Inst. 2010).
landowner liability, for example, the Florida Supreme Court
has held that an owner of residential property in a rural
area did not have a duty to cut trees contained entirely in
its property to ensure vehicles approaching an intersection
from different directions could see each other, even though
it was foreseeable that the blocked view might cause vehicles
driven by negligent drivers to collide. Williams,
974 So.2d at 1058-59. In that case the Court held that
McCain's foreseeability analysis did not create
landowner liability in that context:
[W]hile we have found there is no principled basis for not
extending the law of negligence set out in McCain to
the conditions on private property that may protrude into the
public right-of-way so as to create a hazard to adjacent
traffic, we conclude that residential landowners who do not
permit conditions on their land to extend beyond its
boundaries should not be subject to the same liability.
Williams, 974 So.2d at 1063.
as the law of Florida has held for almost fifty years,
"'[d]uty' is not sacrosanct in itself, but only
an expression of the sum total of those considerations of
policy which lead the law to say that the particular
plaintiff is entitled to protection [or not]."
Gracey v. Eaker, 837 So.2d 348, 354-55 (Fla. 2002)
(quoting Rupp v. Bryant, 417 So.2d 658, 667 (Fla.
Gracey teaches, the determination of whether a
particular duty of care exists may depend on the nature of
the relationship between the parties. Cf. Limones v. Sch.
Dist. of Lee Cty., 161 So.3d 384, 389 (Fla. 2015)
(holding that because of the nature of a school's
relationship to their juvenile students, a jury could find
that the school breached its duty of care by not providing
student athletes with defibrillators); Sells v. CSX
Transp., Inc., 170 So.3d 27, 33 (Fla. 1st DCA 2015)
(finding that given the nature of the employer and employee
relationship, the employer had no duty to provide
defibrillators to employees working in remote locations);
L.A. Fitness Int'l, LLC v. Mayer, 980 So.2d 550,
552 (Fla. 4th DCA 2008) (holding that because of the nature
of the relationship between a commercial business and its
client, the fitness club had no duty to provide
to this case, the decision of whether or not to improve
roadways or upgrade traffic control devices often pits the
interests of some users of the roads against the interest of
others. For example, businesses and commuters may want
traffic control devices that speed up and facilitate the flow
of traffic. Neighborhood groups, on the other hand, may want
traffic control devices that slow or divert traffic. The
process for making these decisions involves the
quasi-political balancing of the competing and conflicting
needs of different parts of the community with the limited
resources available. For this reason, the law recognizes that
these matters involve the "judgmental, planning-level
decisions" by the political branches of government
"which are not actionable." Dep't of
Transp. v. Konney, 587 So.2d 1292, 1295 (Fla. 1991)
(citing Trianon Park Condo. Ass'n v. City of
Hialeah, 468 So.2d 912 (Fla. 1985) and Commercial
Carrier Corp. v. Indian River Cnty., 371 So.2d 1010
petitioning Miami-Dade County to obtain the cut in the
median, Racetrac entered into this planning process. As a
participant in this process, Racetrac could advocate freely -
even fiercely - for its own interests. Racetrac did not have
a relationship with Sewell (or others like her) that would
create in Racetrac a legal duty to tailor its petition to
protect Sewell and other competing road users.
best, Sewell alleged Racetrac submitted expert traffic
studies that were extremely one-sided and unprofessionally
skewed to support its application to have the median cut.
Such allegations, without more, are not actionable. This is
not a case in which Sewell alleges Racetrac petitioned the
government for the primary purpose of intentionally or
maliciously harming Sewell or others like her. See,
e.g., Londono v. Turkey Creek, Inc., 609 So.2d
14, 18 (Fla. 1992). For this reason, Racetrac's
application to have the median cut, whether riddled with
misrepresentations or not, constituted "the statements
of a citizen to a political authority regarding matters of
public concern" shielded by a "qualified
privilege" that has "existed in the law of Florida
for many generations and [has] served to provide broad
protection for freedom of speech." Nodar v.
Galbreath, 462 So.2d 803, 810 (Fla. 1984) (holding a
father's statements to a school board criticizing his
son's teacher was not malicious as a matter of law).
point, Sewell's main theory may well run afoul of the
body of law that grants immunity under the First Amendment to
those petitioning government, whether or not their motives
are self-seeking or even unethical. See IGEN Int'l,
Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 310 (4th
Cir. 2003) ("The Noerr-Pennington doctrine grants First
Amendment immunity to those who engage in petitioning
activity."); United Mine Workers of Am. v.
Pennington, 381 U.S. 657, 670 (1965); Eastern R.R.
Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S.
practical matter, to recognize Sewell's main legal theory
would mean, for example, that homeowners could be sued for
false statements "negligently" made as part of a
petition for specific traffic control or traffic calming
devices like speed bumps or traffic circles which make
roadways safer for some users but potentially more dangerous
for others. When the risks of unintended consequences are
fully weighed, this case presents an instance where, in the
words of Judge, and later Justice, Alan Lawson, it would be
"unwise for the judiciary to expand causes of action to
reach conduct clearly beyond the scope historically
recognized by law." Walters v. Blankenship, 931
So.2d 137, 145 (Fla. 5th DCA 2006) (Lawson, J. dissenting).
cases cited by Sewell do not support her main legal theory
that Racetrac's petition to open the concrete median in
the roadway outside of its property rises to the level of a
tort. In Whitt v. Silverman, 788 So.2d 210, 212
(Fla. 2001), the Florida Supreme Court held that the owners
of a gas station could be liable to pedestrians struck by
vehicles exiting the gas station whose views were unsafely
and unreasonably blocked by landscaping on the property. And
in Thunderbird Drive-In Theatre, Inc. v. Reed, 571
So.2d 1341 (Fla. 4th DCA 1990), the Fourth District held that
a drive-in theater could be held liable for failing to hire
off-duty police to manage traffic buildup on the public road
used to access its property caused by starting multiple films
at the same time. In Thunderbird, the theater was on
notice of the dangerous condition created on its property
because it had previously hired police for that purpose.
the cases cited by Sewell found a property owner liable for
making an application to a government entity to effectuate a
change in the roadway outside of his or her property.
Instead, each of those cases dealt with a property owner
whose conduct on its own property created dangers to persons
on the adjacent rights of way.
short, for the reasons stated above, we hold that a person
who petitions the government for a road improvement outside
of his or her property has no legal duty to guard against the
government making a decision that will create an allegedly
unreasonably dangerous road condition. Therefore, we find no
legal error in the trial court's decision to dismiss that
portion of the complaint.
second theory of liability concerns Racetrac's duty to
manage signs and pavement markings on its own property to
protect its customers and the public from the danger of cars
exiting the property by turning left and using the existing
cut in the median to go eastbound on Northeast 8th Street.
The complaint alleges that Racetrac knew or should have known
that its conduct in this regard presented an unreasonable
danger. This theory is viable under the existing case law
recognized in Whitt, Thunderbird, and
Napoli v. Buchbinder, 685 So.2d 46, 47 (Fla. 4th DCA
1996) (holding that an owner can be liable if negligent
design of its parking lot and placement of a stop sign caused
accident with passing motorist). An owner can be liable for
actions it takes or fails to take on its own property that
cause vehicles to exit in a manner that the owner knew or
should have known creates an unreasonable danger to vehicles
on the adjacent roadway. In this regard, the court erred in
dismissing that part of the complaint.
in part, reversed in part, and remanded.
ROTHENBERG, C.J. (concurring in part, dissenting in part).
Sewell ("Sewell") appeals: (1) the dismissal of her
negligence action against Racetrac Petroleum, Inc.
("Racetrac"), a gas station located on Northeast
8thStreet in Homestead, Florida; (2) the denial of
her motion to plead punitive damages; and (3) the denial of
her motion for spoliation damages. I join the portion of the
majority opinion affirming the denial of Sewell's motion
to plead punitive damages, and motion for spoliation damages.
I also join the majority's affirmance of the dismissal
with prejudice of the portions of Sewell's negligence
claim that are premised on Racetrac's application to the
City of Homestead and/or Miami-Dade County ("the
County") regarding the installation of an opening in the
concrete median on Northeast 8th Street opposite
the gas station. I do so because the majority correctly
determined that the decision whether to grant the request for
the median opening was made by the County, which owns,
maintains, and is responsible for all traffic control devices
on public roadways within the County, and because Racetrac
owed Sewell no legal duty to protect her or the general
public against such road improvements, traffic devices, and
road conditions approved and maintained by the County. I,
however, part ways with the majority regarding its conclusion
that Racetrac may be held liable for actions it failed to
take to warn public roadway users of the allegedly dangerous
condition created by the median opening, or Racetrac's
failure to take other corrective measures to lessen the
dangers created by the use of the median opening.
I agree with the majority opinion in all respects except for
its reversal of the trial court's order dismissing
Sewell's negligence claim related to Racetrac's
failure to warn or to take corrective measures to lessen the
dangers allegedly created by the use of the median opening, I
will confine my dissent to this one area of disagreement.
to purchasing the property in question, Racetrac sought and
obtained approval from the County for the modification of the
concrete median separating the eastbound and westbound lanes
of vehicular travel on Northeast 8th Street in
front of the property Racetrac was interested in purchasing.
The modification provided for an opening in the concrete
median that would allow vehicles traveling east on Northeast
8th Street to turn left into the gas station and
vehicles exiting the gas station to turn left by passing
through the opening and traveling east on Northeast
who was traveling in an eastbound lane on Northeast
8th Street, alleges that a "phantom
vehicle" rapidly exited the gas station, crossed the two
westbound lanes on Northeast 8th Street and,
without stopping, passed through the opening in the median
and entered into her lane. Sewell, took evasive action, lost
control of her vehicle, and crashed into a palm tree.
Although Sewell initially stated that she had been travelling
at 70 miles per hour ("mph") in a 40 mph speed zone
because she was late for work, she ...