ALFREDO LOPEZ v. MIAMI-DADE COUNTY, etc.

• Court: District Court of Appeal of Florida
• Decided: August 10, 2022
• Docket: 22-0162
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 10, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-162 Lower Tribunal No. 19-31342 ________________

Alfredo Lopez, Appellant,

vs.

Miami-Dade County, etc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Vivianne Del Rio, Judge.

Giasi Law, P.A., Melissa A. Giasi and Erin M. Berger (Tampa), for appellant.

Law Offices of Granoff & Kessler, P.A., and Roy E. Granoff, for appellees Nelidia Navarro and Eusebio Verrier.

Before LINDSEY, GORDO and LOBREE, JJ.

GORDO, J. Alfredo Lopez appeals a trial court order granting Eusebio Verrier and

Nelida Navarro’s motion to dismiss with prejudice. We have jurisdiction. Fla.

R. App. P. 9.030(b)(1)(A). Because the trial court properly granted the

motion to dismiss, we affirm.

On August 25, 2017, Lopez lost control of his vehicle and struck a

guardrail after he drove over a pothole or defect that was covered with water

on SW 187th Avenue in Miami-Dade County. Two years later, Lopez filed a

complaint against Miami-Dade County and the Florida Department of

Transportation for negligence alleging they failed to maintain the roadway in

a reasonably safe condition. Lopez subsequently amended his complaint

and added the two owners of the properties abutting the roadway where the

accident occurred as parties: (1) J&A Nursery Inc. and (2) Eusebio Verrier

and Nelida Navarro. Lopez asserted Verrier and Navarro were negligent for

failing to maintain the proper elevation of the swale area by the roadway

pursuant to Chapter 19, section 19-14 of the Miami-Dade County Code.

Verrier and Navarro moved to dismiss Lopez’s complaint against them. The

trial court held a hearing and later entered an order granting the motion to

dismiss with prejudice. Lopez filed a motion for reconsideration and the trial

court held another hearing. The trial court subsequently entered an order

2 stating it reconsidered its prior order but found it did not err in granting the

motion to dismiss.1 This appeal followed.

“We review orders granting a motion to dismiss under a de novo

standard of review.” Williams Island Ventures, LLC v. de la Mora, 246 So.

3d 471, 475 (Fla. 3d DCA 2018). Lopez contends the trial court erred by

considering matters outside his complaint because it made a factual

determination that Verrier and Navarro did not owe him a duty despite his

complaint adequately demonstrating their legal duty. This argument fails

because “duty exists as a matter of law and is not a factual question for the

jury to decide.” McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992);

Jenkins v. W.L. Roberts, Inc., 851 So. 2d 781, 783 (Fla. 1st DCA 2003) (“The

duty element of negligence is a threshold legal question; if no legal duty

exists, then no action for negligence may lie.”); Sewell v. Racetrac

Petroleum, Inc., 245 So. 3d 822, 825 (Fla. 3d DCA 2017) (noting “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.”).

Accordingly, the trial court did not go beyond the four corners of his amended

1 Lopez’s claims against Miami-Dade County, the Florida Department of Transportation, and J&A Nursery currently remain.

3 complaint by considering whether Verrier and Navarro owed Lopez a legal

duty.

Further, the trial court properly determined Verrier and Navarro did not

owe Lopez a legal duty. Section 19-14(B) of the Miami-Dade County Code

provides a property owner is responsible for maintaining proper elevations

within the swale. It does not, however impose liability on the property owner

to private individuals for a violation or injuries caused by a violation of the

section. Pursuant to Chapter 19, only the County may pursue an action

based on an alleged violation. See Section 19-4.2 of the Miami-Dade County

Code (stating if a property owner in violation of any of the provisions of

section 19 fails to cure the violation after notice and reasonable time to come

into compliance “the County shall have the option to enforce this Chapter”).

When the County fails to include a provision imposing liability upon a

property owner for injuries that occur because of an alleged code violation,

an injured person cannot seek a remedy against that property owner based

on the violation. See Woods v. City of Palatka, 63 So. 2d 636, 637 (Fla.

1953) (noting an injured party had no claim against an abutting landowner

where there was “no provision in the charter that an abutting landowner will

be liable for injuries due to his failure to repair a sidewalk, [even] when [he

was] required by ordinance to do so”). Therefore, this section of the Miami-

4 Dade County Code did not impose a legal non-delegable duty on Verrier and

Navarro to motorists driving on the roadway.

Importantly, here Lopez did not allege the accumulated water caused

the defect, did not contend that Verrier and Navarro had a duty to repair the

defect to the roadway, did not allege the accident occurred in the swale area

Verrier and Navarro had an alleged duty to maintain and did not allege

Verrier and Navarro had any prior warning or knowledge of the “defect” in

the roadway or the accumulation of water that allegedly resulted because of

the swale.2 Florida courts have declined to hold residential and commercial

landowners accountable for injuries resulting from defects to areas or

roadways owned by the City or County. See Gornto v. Marks, 311 So. 2d

177, 178 (Fla. 1st DCA 1975) (affirming a trial court order that found a city

ordinance “did not impose upon the [business] owner of abutting premises

liability for injury to a business invitee by reason of a defective public

sidewalk”).

Affirmed.

2 We note Lopez makes no allegation his injury falls within a foreseeable zone of risk in his third amended complaint.