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Sewell v. Racetrac Petroleum, Inc.

Florida Court of Appeals, Third District

December 27, 2017

Crystal Sewell, Appellant,
Racetrac Petroleum, Inc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An 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.

          Luks, Santaniello, Petrillo & Jones, and Daniel J. Santaniello, Edgardo Ferreyra, Jr., Shana P. Nogues, and Heather M. Calhoon, for appellee.

          Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.

          LOGUE, J.

         Crystal 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.

         Sewell 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.

         I. Background

         According 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.

         Sewell 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 obstructed.

         Sewell's 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 occurred."

         In 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)."

         The 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.

         Racetrac filed a motion to dismiss, which the trial court granted after briefing and an extensive argument. This appeal followed.

         II. Analysis

         In 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.").

         The 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.

         The 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).[1]

         Regarding 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.

         Thus, 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. 1982)).

         As 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 defibrillators).

         Turning 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 (Fla. 1979)).

         By 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.

         At 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).

         At some 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. 127 (1961).

         As a 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).

         The 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.

         None of 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.

         In 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.

         Sewell's 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.

         Affirmed in part, reversed in part, and remanded.

          ROTHENBERG, C.J. (concurring in part, dissenting in part).

         Crystal 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.

         Because 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.


         Prior 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 8th Street.

         Sewell, 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 ...

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