# Third District Court of Appeal

State of Florida

Opinion filed December 27, 2017.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D16-1218

Lower Tribunal No. 10-38782

________________



### Crystal Sewell

, Appellant,

vs.



### Racetrac Petroleum, Inc.

,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, 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

2turn 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

3been 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.”).

4The 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

1 Examples include, but are not limited to, the infliction of emotional distress,

Metro. Life Ins. Co. v. McCarson

, 467 So. 2d 277, 278 (Fla. 1985); sovereign

immunity, Commercial Carrier Corp. v. Indian River Cty

., 371 So. 2d 1010, 1013

(Fla. 1979); and parental immunity, Ard v. Ard

, 414 So. 2d 1066, 1066 (Fla. 1982).

5intersection 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

6DCA 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)).

7By 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,

8whether 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 NoerrPennington 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

9be 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

10from 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.

11Crystal Sewell v. Racetrac Petroleum, Inc.

Case No. 3D16-1218

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

8 th Street 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 8 th 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,

12and 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.

BACKGROUND

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 8 th 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 8 th 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

13Northeast 8 th Street.

Sewell, who was traveling in an eastbound lane on Northeast 8 th Street,

alleges that a “phantom vehicle” rapidly exited the gas station, crossed the two

westbound lanes on Northeast 8 th 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 subsequently changed her testimony and

now claims that she cannot remember if she was late for work or how fast she was

driving.

ANALYSIS

This dissent addresses the issue of whether Racetrac, a commercial property

owner, owed Sewell and the public at large (as opposed to an invitee) a legal duty

to warn and/or to take corrective measures to lessen the dangers allegedly

associated with the use of the opening created in the County-owned and Countymaintained median dividing the eastbound and westbound lanes of Northeast 8 th

Street in front of Racetrac’s property. In other words, does Racetrac, the owner of

private property adjacent to a County roadway, owe a legal duty to protect

motorists traveling on the roadway in front of its establishment? The majority

contends that it does. But as will be discussed below, no such duty existed at

14common law, the Florida Supreme Court has not extended premises liability to

non-invitees under the circumstances presented here, and this Court should not be

in the business of creating exceptions to pre-existing law.

A. Premises Liability Law in General

The duties owed by a landowner to those who come onto his property differ

from the duties owed to those who do not come on to his property. See Williams

v. Davis

, 974 So. 2d 1052, 1056 (Fla. 2007):

Florida tort law has long recognized an entirely distinct set of rules as

to the duties owed by a landowner to those who come upon the

property, and the law has recognized limited, if any, duties owed by a

landowner to those who do not come upon the property.

As to the duty owed to invitees, the law is clear:

[A] property owner or occupier owes two duties to an invitee: (1) the

duty to use reasonable care in maintaining the property in a

reasonably safe condition, and; (2) the duty to warn of latent or

concealed dangers which are or should be known to the owner and

which are unknown to the invitee and cannot be discovered through

the exercise of due care.

Grimes v. Family Dollar Stores of Fla., Inc.

, 194 So. 3d 424, 427 (Fla. 3d DCA

2016); Denson v. SM-Planters Walk Apartments

, 183 So. 3d 1048, 1050 (Fla. 1st

DCA 2015); Tallent v. Pilot Travel Ctrs., LLC

, 137 So. 3d 616, 617 (Fla. 2d DCA

2014). As will be discussed below, over time, the Florida Supreme Court has

extended the duty owed by a landowner to his invitees to property off of the

landowner’s premises where the landowner (or the possessor) has exercised some

15measure of control over the property he does not own or when he has impliedly

encouraged his invitees to use the property of others in a particular way.

Landowners and possessors may also be held legally liable for injuries

sustained by non-invitees off of the premises under very limited circumstances. A

landowner or possessor may be subject to liability if he has permitted conditions

on his land to extend outside the land which he knew or should have known

created an unreasonable risk of harm to others not on his land.

Neither of these circumstances or exceptions to general premises liability

law are present here. First, Sewell was not an invitee. She was not on Racetrac’s

property or on her way to or from Racetrac’s property when she was injured.

Thus, the cases involving invitees injured on or near a landowner’s property do not

apply to the instant case. Second, the allegedly dangerous condition was the

opening to the concrete median located on the County’s roadway, not on

Racetrac’s property. Thus, the cases addressing liability for dangerous conditions

on a landowner’s property that extend outside the property also do not apply to the

instant case. Because neither the Legislature nor the Florida Supreme Court has

imposed a legal duty upon a landowner where the injured party was not an invitee

or where the dangerous condition did not originate on the premises and extend

past the premises, nor should we.

B. The law regarding a landowner’s duty to invitees

16As previously stated, a landowner owes a duty to invitees who come onto his

property to maintain the premises in a reasonably safe condition. Additionally, a

landowner has a duty to warn invitees of latent and concealed perils which are or

should have been known to the owner, and which were not known and could not

have been known by an invitee who exercises due care. See Hickory House v.

Brown

, 77 So. 2d 249, 252 (Fla. 1955).

The Fourth District Court of Appeal was not the first Florida court to extend

the duties owed to invitees on the premises to invitees off of the premises. See

Chateloin v. Flanigan’s Enters. Inc.

, 423 So. 2d 1002 (Fla. 3d DCA 1982)

(addressing whether to extend liability to a tavern owner to a situation where a

patron shot another patron after leaving the tavern, but declining to do so in that

case after finding that the shooting which occurred several miles from the tavern

and a considerable time after the patrons had left the tavern, was too remote as to

both time and place). The Fourth District did, however, apply liability for offpremises injuries to invitees in Holiday Inns, Inc. v. Shelburne

, 576 So. 2d 322

(Fla. 4th DCA 1991), disapproved of on other grounds by Angrand v. Key

, 576 So.

2d 322 (Fla. 1995). In Shelburne

, several patrons who had been drinking at the

bar, left the bar, and as they were heading towards their respective vehicles, a fight

broke out in an adjacent lot, three of the patrons were shot, and one patron died

from his wounds. Shelburne

, 576 So. 2d at 324. Importantly, the Fourth District

17noted that the shooting occurred only a few feet from the bar and only a few

minutes after the patrons had exited the bar, id. at 328; one of the injured patrons

had been directed by a bar employee to park on the adjacent lot where the shooting

occurred, id. at 324; and fights had occurred with some regularity at or near the

bar, id. at 328.

In determining whether the owner of the bar owed a duty of care to his

invitees while the invitees were on the adjacent lot, the Shelburne court considered:

the extent of control over the off-premises area exercised by the owner of the bar,

the fact that the bar’s employee had directed the bar’s invitees to park in the

adjacent lot, the economic benefit derived from the off-premises adjacent property,

and the foreseeability that an invitee could be injured while in the adjacent lot.

Since Shelburne

, however, the standard for analyzing the duty owed by

landowners to their invitees has synthesized into a more workable standard: the

foreseeable zone of risk standard. For example, in Johnson v. Howard Mark

Productions, Inc.

, 608 So. 2d 937, 938 (Fla. 2d DCA 1992), the Second District

Court of Appeal applied the foreseeable zone of risk standard when it reversed the

trial court’s order, which had granted summary judgment in favor of Howard Mark

Productions, Inc. (“HM Productions”) and found, as a matter of law, that HM

Productions did not owe a duty of care to protect its invitees on property adjacent

to its property. The amended complaint alleged the following. HM Productions

18operated a teenage nightclub. Johnson, an invitee, was struck and killed by a

motorist while attempting to cross U.S. Highway 41 to patronize HM Productions’

teenage nightclub. The teenage nightclub’s parking was “woefully insufficient”

and, as a result, teenagers (invitees), including Johnson, parked on the opposite

side of U.S. 41 and walked across the highway in the dark to patronize HM

Productions’ teenage nightclub. This inadequate parking was a dangerous

conditions which HM Productions knew or should have known existed. Id. at 938.

The Second District Court of Appeal concluded that under the common law,

landowners have the duty to protect their invitees; this duty extends to cover a

“wide spectrum of circumstances”; and this duty to protect invitees may extend to

“nearby property if the landowner’s foreseeable zone of risk extends beyond the

boundaries of its property.” Id. at 938. The Second District, therefore, reversed

the summary judgment entered in HM Productions’ favor and remanded for further

proceedings.

The Fourth District Court of Appeal applied the same foreseeable zone of

risk standard in two similar cases: Gunlock v. Gill Hotels Co.

, 622 So. 2d 163, 164

(Fla. 4th DCA 1993), and Almarante v. Art Institute of Fort Lauderdale, Inc.

, 921

So. 2d 703, 705 (Fla. 4th DCA 2006). In Gunlock

, the Fourth District Court of

Appeal reversed a dismissal which had been granted for failure to state a cause of

action. In Gunlock

, the hotel placed its buildings on both sides of highway A1A.

19The decedent was struck and killed by a motorist as he crossed from the hotel’s bar

on the east side of A1A to his room located on the west side of A1A. The Fourth

District concluded that the hotel “owed a duty to exercise reasonable care for the

safety of its invitees in passing over the highway to and from appellee’s hotel

facilities.” Gunlock

, 622 So. 2d at 164. Similarly, in Almarante

, the Fourth

District concluded that the defendant, a private school, owed a duty of care to its

students which could extend beyond the physical boundaries of the school’s

property if the defendant’s conduct foreseeably created a risk of harm. Almarante

,

921 So. 2d at 705.

As these cases reflect, in Florida, a landowner owes its invitees a duty of

care, which may extend beyond the landowner’s premises if the landowner has

created a dangerous condition or a foreseeable zone of risk to its invitees that

extends beyond the landowner’s premises. But, the common thread in these cases

is that the duty owed was limited to the landowner’s invitees

.

C. Landowner liability to non-invitees

A landowner may also be subject to liability if it has permitted conditions

on its land to extend outside the land which it knew or should have known created

an unreasonable risk of harm to others not on its land.

In Hardin v. Jacksonville Terminal Co.

, 175 So. 226 (Fla. 1937), the issue

before the Florida Supreme Court was whether Jacksonville Terminal Co. (“the

20defendant”) could be held liable to a pedestrian (Hardin) who was injured when he

slipped and fell on a slick and slippery substance on the pavement he was walking

on even though the pavement was not on the defendant’s property nor owned,

controlled, or maintained by the defendant. Apparently, the pavement had become

slippery as a result of “liquids” running off of a retaining wall on the defendant’s

property and onto the street, which over time became slippery and unsafe. Id. at

226-27. The Florida Supreme Court concluded that an owner or the possessor of

land may be subject to liability for bodily injuries caused to others off-premises by

an artificial condition created thereon, such as changes caused by excavations,

structures, and fillings. Id. at 227. However, since there were no allegations or

facts to suggest that the defendant in this case had permitted a condition to occur

on his land which he knew or should have known created an unreasonable risk of

harm to others outside his land, the Florida Supreme Court held that the trial court

correctly entered judgment in the defendant’s favor. Id. at 228.

Although the conditions addressed in Hardin were artificial conditions, in

2001 the Florida Supreme Court extended the duty of care to commercial

landowners who allow “natural” conditions, such as foliage and landscaping on

their premises, to obstruct the view of motorists or pedestrians on the adjacent

sidewalks and roadways. See Whitt v. Silverman

, 788 So. 2d 210, 212 (Fla. 2001).

Instead of applying the “agrarian rule,” previously relied on in prior cases and

21which provided that a landowner owed no duty to persons who are not on the

landowner’s property and who were therefore not responsible for any harm caused

to them by natural conditions on the land, id. at 213, the Whitt Court applied the

“foreseeable zone of risk” standard the Court had adopted in McCain v. Florida

Power Corp.

, 593 So. 2d 500 (Fla. 1992). Whitt

, at 222. Applying the foreseeable

zone of risk standard, the Florida Supreme Court concluded that it was undisputed

that the landowner had exclusive control over the foliage and landscaping on the

business premises; it would not have been unduly burdensome for the landowner to

have maintained the foliage to allow for safe ingress and egress from the property;

and the failure to do so created a foreseeable zone of risk posing a general threat of

harm toward patrons of the business as well as to the pedestrians and motorists

using the abutting streets and sidewalks. Thus, the landowner had a duty of care.

Id. at 222.

However, in Williams v. Davis

, 974 So. 2d 1052, 1054 (Fla. 2007), the

Florida Supreme Court declined to further extend the McCain foreseeable zone of

risk standard to residential landowners who permit conditions on their land that

negatively impact motorists or pedestrians who are off-premises unless those

conditions actually extend into the public right-of-way so as to create a foreseeable

hazard to traffic. For example, when a limb or branch of a tree extends past the

owner’s property and obstructs a traffic control sign, a landowner may be

22tortiously liable. Id. at 1059. Specifically, the Florida Supreme Court stated:

We conclude that these prior decisions can best be reconciled by a

recognition that ordinarily a private residential landowner should be

held accountable under the zone of risk analysis principles of McCain

only when it can be determined that the landowner has permitted

conditions on the land to extend into the public right-of-way so as to

create a foreseeable hazard to traffic on the adjacent streets.

Id. at 1062.

In reaching this conclusion, the Court noted that “motorists in Florida have a

continuing duty to use reasonable care on the roadways to avoid accidents and

injury to themselves and others,” id. at 1063, and this “continuing duty of motorists

is not affected by our holding today.” Id. ; see also Birge v. Charron

, 107 So. 3d

350, 361 n.19 (Fla. 2012) (holding that “drivers on Florida’s roadways owe a duty

of reasonable care not only to those driving in front of them, but also to those who

are following, and all other individuals within the foreseeable zone of danger”);

Bellere v. Madsen

, 114 So. 2d 619, 621 (Fla. 1959) (concluding that “the driver of

an automobile

— a dangerous instrumentality

— is charged with the responsibility of

having his vehicle under control at all times, commensurate with the circumstances

and the locale, and to maintain a sharp and attentive lookout in order to keep

himself prepared to meet the exigencies of an emergency within reason and

consistent with reasonable care and caution) (internal quotation omitted); Wallace

v. Nat’l Fisheries, Inc.

, 768 So. 2d 17, 19 (Fla. 3d DCA 2000) (drivers have the

duty to drive carefully and to avoid hitting other drivers).

23This Court has consistently applied these principles. In Garcia v. City of

Hialeah

, 550 So. 2d 1158 (Fla. 3d DCA 1989), the plaintiff was injured as he

exited a gas station and struck a vehicle on Okeechobee Road. The plaintiff

claimed that his visibility was obscured by shrubbery. Id. at 1159. This Court

noted that in those cases in which no invitee duty is involved, a “chance motorist”

is injured on a public roadway while passing a landowner’s property, and the

accident is alleged to have been caused by shrubbery growing high but remaining

solely on the landowner’s property, the landowner is not liable for the resulting

damages. Id. at 1159 n.1. Further, in Silver Palm Properties, Inc. v. Sullivan

, 541

So. 2d 624, 624 (Fla. 3d DCA 1989), this Court also held that a landowner does

not have a duty to retard the subterranean root growth of trees on his property

which may extend beneath an adjacent public right-of-way. This Court concluded

that because the County, not Silver Palm Properties, owned and maintained the

roadway shoulder and surface in the area of the accident, and Silver Palm

Properties had no right to alter or repair the surface of the roadway, and it had no

duty to undertake root trenching or tree topping to retard subterranean root growth.

Silver Palm

, 941 So. 2d at 627.

Similarly, in Ruiz v. Taracomo Townhomes Condominium Ass’n

, 525 So.

2d 445, 446 (Fla. 3d DCA 1988), this Court affirmed the trial court’s order

granting summary judgment in favor of the Association landowner. Id. In that

24case, the plaintiff, who was driving on a street adjacent to the Association’s

property, was struck by a “phantom” motorist exiting the driveway to the

Association. Id. This Court held that because it was undisputed that the

“phantom” vehicle had an unobstructed view of the roadway where the plaintiff

was driving, the Association had no liability. Id.

D. Application of the case law to the instant case

The law in Florida is clear. Landowners owe their invitees a duty to use due

care to maintain the premises in a reasonably safe condition and to protect them

from foreseeable harm. Williams

, 974 So. 2d at 1057 n.3 (citing Markowitz v.

Helen Homes of Kendall Corp.

, 826 So. 2d 256, 259 (Fla. 2002)). This duty may

extend off the landowner’s premises if he has exercised some measure of control

over the property he does not own or when he has impliedly encouraged his

invitees to use the property of others.

The duties owed by a landowner “to those who come upon the property”

differ from “those who do not come on the property.” Williams

, 974 So. 2d at

1056. A landowner may be subject to liability if he permits either artificial or

natural conditions on his land to extend outside his premises which he knew or

should have known created an unreasonable risk of harm to others not on his

premises, commonly referred to as a foreseeable zone of risk.

Neither of those scenarios are present in this case. The plaintiff in the

25instant case, Sewell, was not an invitee. She was a motorist driving on the public

right-of-way adjacent to the defendant Racetrac’s property. She was actually

driving three lanes away from Racetrac’s property when she allegedly swerved to

avoid another motorist who she claims suddenly exited Racetrac’s property,

crossed two lanes of travel, and entered Sewell’s lane of travel on the opposite side

of the street. The break or cut in the concrete median that separates the eastbound

and westbound lanes on that public right-of-way, which allowed the “phantom”

motorist to cross the roadway at that point, was not owned or maintained by

Racetrac or an extension of Racetrac’s property, and Racetrac had no control over

the median cut or any other traffic device on the public right-of-way. Nothing on

Racetrac’s property obstructed the view of its invitees or the public at large. This

accident occurred either because an invitee of the gas station failed to yield the

right-of-way or use due caution when exiting Racetrac’s property, or because

Sewell was driving too fast or was not herself using due caution as she approached

the median cut.

There is no case cited by Sewell or in these opinions, and I have not found

such a case, where liability has been extended to a landowner for a non-invitee

who was injured where the allegedly dangerous condition or foreseeable zone of

risk did not exist on the premises and then extend outside the premises and into the

public right-of-way. Even Thunderbird Drive-In Theatre, Inc. v. Reed

, 571 So. 2d

261341 (Fla. 4th DCA 1990), relied on by Sewell and the concurring, in part, and

dissenting, in part opinion offered by my colleague, does not extend the duty under

such a scenario. Thunderbird’s negligence allegedly resulted from the design and

maintenance of the entrance to its theatre

, which caused its invitees, who were

waiting to enter the theatre’s premises, to back up onto Sunrise Boulevard and

create a dangerous condition on the roadway. Id. at 1342-43. Thus, the dangerous

condition was caused by a condition (the design and maintenance of Thunderbird’s

entrance) on Thunderbird’s premises which extended onto the roadway. In the

instant case, there is no claim that the design or maintenance of Racetrac’s

entrance/exit was faulty or that anything on its premises obstructed the visibility of

any motorist or pedestrian entering or exiting its property or traveling on an

adjacent sidewalk or roadway.

Although the “foreseeable zone of risk” standard is the standard to be

applied in premises liability cases, that standard is subject to prescribed premises

liability jurisprudence. To hold businesses liable for traffic conditions resulting

from traffic control devices owned, maintained, and controlled by a county, a

municipality, or the state would create a new liability not yet imposed in this state.

Creation of new duties and responsibilities is a legislative function, not a judicial

function. To extend liability as Sewell and the majority invite us to do, would

make all commercial landowners the insurers of all invitees who fail to obey traffic

27laws when entering or exiting the premises onto the public right-of-way and the

insurers of all non-invitees who are injured when struck by an exiting patron,

where neither the patron nor the passing motorist had an obstructed view.

Additionally, business owners do not have a duty to warn their invitees to

use caution and to yield the right-of-way when exiting the business owner’s

premises. These duties have already been imposed upon all motorists by law.

Racetrac also had no authority to prohibit its invitees from making a lawful exit

onto Northeast 8th Street and using the opening in the median to make a left turn

on Northeast 8th Street in order to travel east on Northeast 8th Street, because the

median opening was created and approved by the County for that very purpose.

Thus, Sewell’s negligence claim, which was premised on Racetrac’s duty to warn

or to take corrective measures on its own property to lessen the danger posed by an

invitee who fails to use proper caution when exiting its premises, was properly

dismissed by the trial court.

CONCLUSION

For the reasons expressed herein, I respectfully disagree with, and therefore

dissent from, the panel conclusion reversing that portion of the trial court’s order

dismissing the portion of Sewell’s negligence action against Racetrac that was

founded on the theory that Racetrac had a duty to warn or to take other corrective

action to lessen the dangers allegedly created by the use of the median opening on

28the roadway adjacent to Racetrac’s premises, but which was entirely owned,

maintained, and controlled by the County.

Crystal Sewell v. Racetrac Petroleum, Inc.

3D16-1218

EMAS, J., concurring in part and dissenting in part.

INTRODUCTION

Appellant Crystal Sewell appealed three orders of the trial court: 1) the

denial of her motion to plead punitive damages; 2) the denial of her motion to seek

29damages for spoliation; and 3) the dismissal with prejudice of her one-count

negligence action against Racetrac.

The majority affirmed the first two trial court orders described above, and I

concur in that portion of the majority opinion. As to the trial court’s dismissal of

Sewell’s negligence action, the majority affirmed in part and reversed in part. The

majority held that the trial court erred in dismissing Sewell’s negligence claim

insofar as the claim was premised upon Racetrac’s duty to manage signage and

pavement markings on its own property. Notwithstanding this, the majority also

held that Sewell may not seek to establish a negligence claim against Racetrac on

her “main theory of liability”: that Racetrac was negligent “for making an

application to a government entity to effectuate a change in the roadway outside of

[Racetrac’s] property” (Maj. op. at *9).

I agree with the majority that the trial court erred in dismissing Sewell’s

negligence claim with regard to Racetrac’s duty to manage signage and pavement

markings on its own property. However, I dissent from the majority’s holding that

Sewell cannot allege and seek to prove a claim of negligence on the basis of

Racetrac’s actions with regard to the roadway changes.

The operative complaint alleged a single count for negligence against

Racetrac. Nevertheless, the majority parses out individual factual allegations

contained within that single count, and determines that, as a matter of law, the

30allegations surrounding Racetrac’s actions in seeking, procuring and installing the

median cut cannot be properly pleaded or relied upon by Sewell for its negligence

claim against Racetrac. It is this determination by the majority with which I take

issue and from which I dissent. I write to further explain my reasoning.

THE MAJORITY’S VIEW: THE MEDIAN CUT ALLEGATIONS

SET FORTH A SEPARATE BUT IMPROPER THEORY OF

LIABILITY

The majority determined that, while Sewell’s complaint set forth a valid

claim against Racetrac for negligence, the allegations regarding Racetrac’s actions

in seeking, obtaining approval for, and installing the median cut (the “Median Cut

Allegations”) cannot form a separate theory of liability for negligence. The

majority opinion misapprehends the nature and purpose of these allegations. The

Median Cut Allegations do not constitute an alternative theory of liability; rather,

they serve to demonstrate that Racetrac knew of the dangerous nature of the

condition it created by its own conduct and actions, and was aware of the

foreseeable zone of risk this condition would pose to others. These allegations are

relevant to, inter alia, the question of foreseeability and Racetrac’s knowledge of

the condition and its dangerous nature, which are inextricably intertwined with the

determination of the existence and scope of the legal duty owed, and breached, by

Racetrac. 2 I would reverse the dismissal order in its entirety, and therefore

2 A determination of the existence of a duty is linked to the concept of

foreseeability, and may arise from four general sources: legislative enactments or

31respectfully dissent from the majority opinion to the extent that it affirms a portion

of the trial court’s order of dismissal.

RELEVANT PROPOSITIONS OF LAW

The following propositions of law are applicable to this discussion:

The duty element of negligence centers on whether the defendant’s conduct

foreseeably created a “zone of risk” that posed a general threat of harm to others.

McCain v. Fla. Power Corp.

, 593 So. 2d 500, 502 (Fla. 1992). In McCain

, the

Florida Supreme Court recognized that, in Florida, “a legal duty will arise

whenever a human endeavor creates a generalized and foreseeable risk of harming

others.” Id. The McCain Court noted that one who creates a risk must exercise

prudent foresight when others may be injured, and “this requirement of reasonable,

general foresight is the core of the duty element.” Id. at 503. “The trial courts

administrative regulations; judicial interpretations of such enactments or

regulations; other judicial precedent; and a duty arising from the general facts of

the case. McCain v. Fla. Power Corp.

, 593 So. 2d 500, 503 n. 2 (Fla. 1992).

The allegations are also relevant to a determination of whether, in light of its own

actions and its knowledge of the dangerous condition it created, Racetrac breached

a legal duty to exercise reasonable care. See Clay Elec. Co-op., Inc. v. Johnson

, 873 So. 2d 1182, 1185 (Fla. 2003) (a traditional negligence claim is comprised of

four elements: legal duty, breach of that duty by failure to exercise reasonable

care, proximate cause, and actual loss or damage). The concept of foreseeability

is relevant to a determination of both legal duty and proximate cause. See

discussion infra at *14-15.

32cannot find a lack of duty if a foreseeable zone of risk more likely than not was

created by the defendant.” Id.

If a landowner creates a condition that he knows or should know is

dangerous, a duty is imposed by which that landowner must act either to lessen the

danger, or to warn the public of that danger. As the Florida Supreme Court has

recognized and reaffirmed: “ Where a defendant's conduct creates a foreseeable

zone of risk

, the law generally will recognize a duty placed upon defendant either

to lessen the risk or see that sufficient precautions are taken to protect others from

the harm that the risk poses.” McCain

, 593 So. 2d at 503 (quoting Kaisner v. Kolb,

543 So. 2d 732, 735 (Fla. 1989)).

The duty of care owed by a landowner is commensurate with the foreseeable

zone of risk created by the actions and conduct of that landowner. Given that the

property at issue is a gas station, we look to cases that discuss this concept in the

context of a commercial landowner. 3

3 For this very reason, the majority’s reliance on Williams v. Davis

, 974 So. 2d

1052 (Fla. 2007) is simply misplaced. That case involved a residential landowner,

not a commercial landowner. The holding in Williams is inapplicable to the

question presented in this case: does Racetrac, a commercial landowner, owe a

duty of reasonable care for a dangerous condition it created (and an injury it

caused) beyond the physical boundaries of its property?

The significance of the distinction between a residential landowner’s duty and a

commercial landowner’s duty is fairly self-evident: a commercial landowner’s

success is directly dependent on customers coming into its business and purchasing

its goods or services. To the extent that, by its actions, the business expressly or

implicitly invites customers onto its property, the commercial landowner has a

33The McCain zone of risk analysis has been applied in determining the

existence of a duty of a commercial landowner when the creation of a foreseeable

zone of risk on the commercial property causes an injury off the property. For

example, in Whitt v. Silverman

, 788 So. 2d 210 (Fla. 2001), two pedestrians

walking on the sidewalk abutting a gas station were struck by a vehicle exiting that

gas station. The driver of the vehicle alleged he could not see the pedestrians

because his view was obstructed by dense foliage growing on the gas station

property.

The Court noted that the property involved was a gas station, a commercial

business “which by its very nature involves a continuous flow of traffic entering

and exiting the premises for the commercial benefit of the landowners.” Id. at 222.

It was undisputed that the landowners had exclusive control over the foliage on the

property, and it was not unduly burdensome to have maintained the foliage

consistent with a safe egress and ingress into and out of the property. The question

was whether the commercial landowner owed a duty of care to persons who might

corresponding duty which may extend beyond the precise boundaries of the

commercial property “to include approaches to the premises which are open to

invitees in connection with their business on the premises, and which are so

located and constituted as to represent an invitation to visit the place of business

and to use such means of approach.” IRE Fla. Income Partners, Ltd. v. Scott

, 381

So. 2d 1114, 1117 (Fla. 1st DCA 1979). See also Garcia v. City of Hialeah

, 550

So. 2d 1158, 1159 (Fla. 3d DCA 1989) (holding that a commercial landowner

owed a duty to provide reasonably safe ingress and egress to business invitees

using his gasoline station).

34be injured as a result of natural conditions (e.g., landscaping) existing on the

landowner’s property, even where the injury occurs on the sidewalk immediately

abutting the commercial property. The Whitt Court, applying the McCain

“foreseeable zone of risk” analysis, concluded that the commercial landowner

owed a duty of care to the pedestrians, even though the foliage was a natural

condition and even though the injury occurred beyond the property’s boundaries.

The Whitt Court acknowledged that a case-by-case factual analysis is required to

determine whether a commercial landowner owes a duty of care under these

circumstances.

Further, a commercial landowner has a duty to provide invitees with safe

ingress into, and egress from, its commercial premises. As recognized in

Thompson v. Gallo

, 680 So. 2d 441, 443 (Fla. 1st DCA 1996) (quoting IRE Fla.

Income Partners, Ltd. v. Scott

, 381 So. 2d 1114, 1117 (Fla. 1st DCA 1979)):

The duty to keep the premises safe for invitees extends to all portions

of the premises that are included in the invitation and that are

necessary or convenient for the invitee to visit or use in the course of

the business for which the invitation was extended.... “The duty

extends to approaches to the premises which are open to invitees in

connection with their business on the premises, and which are so

located and constituted as to represent an invitation to visit the place

of business and to use such means of approach.”

The commercial landowner’s duty extends to approaches to the premises

which are located in such a way as to represent an invitation to visit the place of

business and to use such means of approach. See Garcia v. City of Hialeah

, 550

35So. 2d 1158, 1159 (Fla. 3d DCA 1989) (holding that liability can be “derived from

the fact that [the commercial landowner] owed a duty to provide reasonably safe

ingress and egress to business invitees using his gasoline station.”)

A commercial landowner abutting a public highway may owe a duty to

passing motorists for creating a dangerous condition on the highway

. Florida

Specialty, Inc. v. H 2 Ology, Inc.

, 742 So. 2d 523, 526 (Fla. 1st DCA 1999)

(reversing dismissal order where complaint sufficiently alleged the existence of a

duty by alleging that the landowner’s actions in discharging corrosive solution onto

an abutting roadway created a foreseeable zone of risk to employees of

neighboring businesses driving on the roadway to get to and from work).

Finally, a commercial landowner who creates a foreseeable zone of risk

outside of its premises has a duty to lessen that risk or see that sufficient

precautions are taken to protect others from the harm that the risk poses. In

Thunderbird Drive-In Theatre, Inc. v. Reed By and Through Reed

, 571 So. 2d

1341 (Fla. 4th DCA 1990) (receded from on other grounds in Love v. Garcia

, 611

So. 2d 1270 (Fla. 4th DCA 1992)), the Fourth District affirmed a jury verdict in

favor of a driver injured by the negligence of a drive-in theater that failed to

adequately control traffic congestion caused by the theater’s operations, resulting

in an auto accident. The drive-in theater had seven movie screens and, on the day

36of the accident, seven different movies commenced simultaneously, including an

“early bird special” for those arriving between 7:30 and 8:00 p.m.

A motorcyclist (Reed) collided with the driver of a vehicle (Coyman) who

had negligently attempted to enter the Thunderbird drive-in theater. Coyman was

driving eastbound, moved into the left turn lane, and was waiting to turn into the

theater entrance. However, there was a long line of cars in the right lane of

westbound traffic also waiting to turn into the theater. Coyman saw what he

thought was an opening into the theater entrance and began making his left turn

crossing into the three lanes of the westbound traffic. However, he was forced to

stop in the middle of the westbound lanes because a car in the right lane of

westbound traffic moved into the theater entrance, blocking Coyman from entering

into that space. This left Coyman’s vehicle exposed and in the path of Reed’s

motorcycle (traveling in a westbound lane) which could not stop in time, resulting

in a collision.

Reed sued Coyman as well as Thunderbird Drive-In, contending, inter alia,

that the theater was negligent in the design and maintenance of its entrance to the

theater; that this negligence caused traffic to build up on the abutting highway,

creating a known dangerous condition; that the theater failed to lessen this

dangerous condition (for example, by hiring additional police to control traffic);

and that such negligence was a proximate cause of the accident.

37The theater argued, inter alia, that it had no notice of any dangerous

condition (no prior similar accidents had occurred), and that a slowdown in traffic

by the congregation of its customers in the highway could not serve to impose

liability on the theater as the property owner.

The jury returned a verdict which found Thunderbird (as well as Coyman

and Reed) liable. Thunderbird appealed and the Fourth District affirmed,

determining that the theater could be held liable for the dangerous condition it

created, even though the dangerous condition was created on the highway abutting

the theater’s property. The court noted that while the question of foreseeability (as

it relates to the issue of proximate cause) was a question to be answered by the

jury, the question of Thunderbird’s duty was clear:

Where a defendant's conduct creates a foreseeable zone of risk, the

law generally will recognize a duty placed upon defendant

{ " p a g e s e t " : " S 0 9 either to lessen the risk or see that sufficient precautions

are taken to protect others from the harm that the risk poses. See

Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983) (citing Crislip v.

Holland, 401 So.2d 1115, 1117 (Fla. 4th DCA)

, review denied sub

nom. City of Fort Pierce v. Crislip, 411 So.2d 380 (Fla.1981) ).

Id. at 1343-44 (quoting Kaisner

, 543 So. 2d at 735-36).

THE “MEDIAN CUT ALLEGATIONS” OF THE COMPLAINT

As recognized by the majority, the trial court disposed of Sewell’s complaint

at the motion to dismiss stage. As a result, both the trial court and this court must

accept all well-pleaded allegations of the complaint as true, as well as reasonable

38inferences arising from those allegations. In short, the allegations and inferences

therefrom must be construed in a light most favorable to the plaintiff. See The

Florida Bar v. Greene

, 926 So. 2d 1195, 1199 (Fla. 2006); Rolle v. Cold Stone

Creamery, Inc.

, 212 So. 3d 1073 (Fla. 3d DCA 2017). With that (and the

previously-discussed legal propositions) in mind, we turn to the specific allegations

of complaint that are at issue in this discussion, the so-called “Median Cut

Allegations”:

1. Racetrac entered into a contract for the purchase of unimproved property

located on the north side of Campbell Drive in Homestead, Florida.

Racetrac intended to build a gas station at the location. However, at the time

of the purchase, the portion of Campbell Drive abutting the property

contained an unbroken concrete median separating eastbound and

westbound traffic. As a result, only westbound traffic would be able to

access the property. The median prevented eastbound traffic from making a

left-hand turn to enter the property. The existing median also prevented

vehicles from exiting the property to proceed eastbound; instead vehicles

could proceed only westbound on Campbell Drive.

2. Racetrac desired to build a “full access” station

— one that would allow

both eastbound and westbound vehicles to access the gas station, and would

permit exiting vehicles to access both the eastbound and westbound lanes of

Campbell Drive.

3. Racetrac determined it would not purchase the property (and construct a

gas station) unless a “median cut” was made in Campbell Drive to create the

desired full access for both eastbound and westbound travelers. The

39purchase contract included a clause that the purchase was contingent on

Racetrac obtaining “approval from all necessary Governmental agencies to

construct a median cut on Campbell Drive

. . . designed to allow direct

ingress and egress between [Racetrac] and the Eastbound lane of Campbell

Drive [allowing for left turns into and out of Racetrac], without necessitating

a u-turn.”

4. In order to make a median cut in Campbell Drive, Racetrac required

approval from Miami-Dade County. In order to obtain a permit for the

median cut, Racetrac was required to conduct a traffic study and submit to

Miami-Dade County a projection of: a) the volume of traffic which would be

generated by the existence of the gas station; and b) the effect this projected

traffic volume would have on the surrounding roadways.

5. Thereafter, and in furtherance of its intent to acquire a “full access” gas

station, Racetrac knowingly submitted false and misleading traffic

projections to Miami-Dade County in order to obtain approval for the

median cut in Campbell Drive.

6. Racetrac knew, from its own internal data and other sources, that the

projections it provided to Miami-Dade County drastically understated the

traffic volume its gas station would actually generate.

7. However, Racetrac also knew that these false and misleading projections

(which greatly understated the traffic volume and associated impact

generated by the gas station) greatly increased Racetrac’s chances of

obtaining approval for the median cut and its desired “full access” gas

station.

8. Based upon these false and misleading projections, the County approved

Racetrac’s request for a median cut in Campbell Drive, and Racetrac

40thereafter constructed its gas station with a median cut, thereby permitting

full access by eastbound and westbound traffic on Campbell Drive.

9. Had Racetrac provided Miami-Dade County with accurate and valid

projections of the traffic impact generated by the gas station, no median cut

would have been permitted.

10. The presence of the median cut in that portion of Campbell Drive

abutting the gas station created a foreseeable and undue risk of harm to the

motoring public.

11. Racetrac knew or should have known that the opening of the median to

permit “full access” (ingress and egress) to and from the gas station created

an undue risk of harm to the motoring public.

12. Racetrac knew or should have known that the median cut to allow “full

access” would create “18 major conflict points” (by allowing left turns into

and out of Racetrac through the median cut), posing an undue risk of harm to

the motoring public that would not be present but for the placement of the

median cut.

13. Racetrac knew or should have known that the design, construction, or

maintenance of the gas station and median cut posed an undue risk of harm

to the motoring public because the median cut was too narrow for cars to

safely stop in the median when exiting Racetrac and turning left onto

Campbell Drive. As a result, vehicles exiting Racetrac would have to

“rapidly and perpendicularly cross the heavily-traveled fast moving

westbound traffic lanes,” drive through the median break without stopping,

and “suddenly intrude” into the eastbound traffic lanes.

14. Prior similar accidents at the accident site placed Racetrac on notice that

the median cut created a zone of risk (for motorists like Sewell) which

extended beyond the physical boundaries of Racetrac’s gas station.

41DISCUSSION

The majority opinion characterizes the Median Cut Allegations as the main

theory of liability, and concludes that “[t]he 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.” Maj. op. at *9. The

majority opinion then concludes: “[W]e 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.” Id. at *10. However, Sewell’s

one-count complaint is for simple negligence and is grounded upon the allegation

that Racetrac, by placing a median cut in the highway abutting its commercial

property, knowingly creating a dangerous condition and a foreseeable zone of risk

of injury to others. This case is most assuredly not, as the majority apparently

perceives, a tort grounded upon Racetrac’s petitioning for a median cut, or MiamiDade County’s actions in approving the permit for the median cut. Rather, under

the well-pleaded allegations, Racetrac placed a cut in the median of the highway

which (as detailed in the Median Cut Allegations) Racetrac knew or should have

known created a foreseeable and undue risk of harm

. This knowledge is

evidenced by the allegation that, in an effort to ensure the planned gas station

permitted “full access” to and from its commercial property, Racetrac knowingly

42submitted a traffic study containing false and misleading projections, to obtain

approval for a median cut in the abutting highway.

The Median Cut Allegations are relevant because they tend to show that

Racetrac knew from the inception the sought-after median cut would be dangerous

and would pose a foreseeable risk of harm to the motoring public attempting to

enter or exit its gas station through the median cut (or to others injured by

motorists attempting to enter or exit its gas station). “Relevant evidence is

evidence tending to prove or disprove a material fact.” § 90.402, Fla. Stat. (2017).

Therefore, while Sewell may indeed be able to prove her simple negligence

claim by relying on the remaining allegations of her operative complaint (which, as

the majority holds, states a valid cause of action), this does not and should not

foreclose Sewell from also relying on the Median Cut Allegations, as they bear on

Racetrac’s knowledge of the condition and on the question of foreseeability as it

relates to the issues of duty and proximate cause. 4

Our sister court, in Almarante v. Art Inst. of Fort Lauderdale, Inc.

, 921 So.

2d 703, 705 (Fla. 4th DCA 2006), held that a landowner can be held liable in

negligence where it creates a dangerous condition beyond the physical boundaries

4 Foreseeability arises in two contexts: in determining the existence of a duty of

care, the trial court must consider whether the conduct of the defendant created a

foreseeable zone of risk. McCain

, 593 So. 2d at 504. As it relates to proximate

cause, the question of foreseeability is generally for the factfinder to consider and

resolve. Id. See also Fla. Power & Light Co. v. Periera

, 705 So. 2d 1359, 1361

(Fla. 1998).

43of its premises. The defendant in that case, a private school, built two separate

dormitory buildings, one on each side of a busy highway. One of the two buildings

contained the school’s common facilities, housing the cafeteria, mail center, and

bus stop. The other building housed students, who were routinely required to cross

the busy highway to access the services and facilities in the other building.

However, the school did not install a pedestrian signal, cross-walk, bridge, or other

safety device within the general vicinity of the two buildings to facilitate a safe

crossing of the highway. Two previous pedestrian accidents put the school on

notice as to the dangerous condition created by the need to cross the busy highway

between the two buildings. In seeking the installation of appropriate safety devices

between the buildings from the Florida Department of Transportation (DOT), the

DOT advised the school that it was the school’s responsibility to conduct a traffic

study before the DOT would install the traffic signal at the school’s expense.

The plaintiff, a student residing in one of the dormitory buildings, was hit by

a vehicle when crossing the highway. The school contended that it had “no legal

duty under Florida law to provide reasonably safe passage across a public highway

not owned, maintained, or controlled [by the defendant].” Id. at 704. The trial

court agreed and dismissed the action with prejudice.

On appeal, the Fourth District reversed. In doing so, the court applied

McCain to determine whether the school foreseeably created a zone of risk of harm

44to pedestrians (i.e., the students who crossed the street between the two buildings).

Id. at 705. In its analysis, the court cited to its decision in Gunlock v. Gill Hotels

Co., Inc.

, 622 So. 2d 163, 164 (Fla. 4th DCA 1993), which held that “a

landowner’s conduct can give rise to a zone of risk extending beyond the physical

boundaries of his property when harm reaching outside those boundaries is

foreseeable.” 5 The court in Almarante reversed the lower court’s dismissal order,

holding that the school’s decision to place its dormitory buildings on both sides of

a busy highway, requiring its students to cross the highway regularly for meals and

other student functions, created a foreseeable zone of danger for its students.

Almarante

, 921 So. 2d at 705.

I find helpful parallels between the facts in Almarante and the allegations in

the instant case. Like the dangerous condition and foreseeable zone of risk created

by the school when it constructed buildings on opposite sides of a highway without

taking any steps to ensure that students could safely cross the highway to access

the two buildings, the placement of the median cut in the highway to secure “full

access” to Racetrac’s gas station was a dangerous condition, creating a foreseeable

zone of risk to motorists. Moreover, like the students in Almarante who were

5 The Gunlock court, in reversing a trial court’s order dismissing a cause of action

under similar circumstances, found that a commercial landowner whose hotel

property encompassed a bar on one side of the highway and hotel rooms on the

other side of the highway, owed a duty to its invitees in passing over the highway

to and from the hotel’s facilities. Gunlock

, 622 So. 2d at 164.

45required to cross the highway to utilize the services, and participate in activities,

offered by the school, Racetrac’s invitees were required to use the median cut for

ingress and egress when making left turns into and out of Racetrac. Sewell has

properly pleaded that Racetrac’s actions created a foreseeable zone of risk and that

Racetrac therefore owed a duty, to those within the foreseeable zone of risk, to

either lessen the risk of harm or to warn of the dangerous condition it created on

the highway abutting its commercial property.

For these reasons, I respectfully concur in part and dissent in part, and would

reverse in its entirety that portion of the trial court’s order which dismisses with

prejudice Sewell’s negligence claim.

46