IRE Florida Income Partners, Ltd. v. Scott

381 So. 2d 1114
CourtDistrict Court of Appeal of Florida
DecidedNovember 7, 1979
DocketMM-123
StatusPublished
Cited by10 cases

This text of 381 So. 2d 1114 (IRE Florida Income Partners, Ltd. v. Scott) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
IRE Florida Income Partners, Ltd. v. Scott, 381 So. 2d 1114 (Fla. Ct. App. 1979).

Opinion

381 So.2d 1114 (1979)

IRE FLORIDA INCOME PARTNERS, LTD., Appellant,
v.
Dean Aloysius SCOTT and Maria W. Scott, Appellees.

No. MM-123.

District Court of Appeal of Florida, First District.

November 7, 1979.
Rehearing Denied November 30, 1979.

*1115 Robert P. Gaines and K. Jeffrey Reynolds, of Beggs & Lane, Pensacola, for appellant.

J.B. Murphy, Jr., of Murphy, Beroset & Parks, Pensacola, for appelles.

LARRY G. SMITH, Judge.

The sole issue on this appeal is whether there was evidence of negligence on the part of the appellant-landowner, IRE Florida Income Partners, Ltd. (IRE), upon which to base a jury verdict awarding damages to the appellees, Mr. and Mrs. Scott, for injuries received by Mrs. Scott in an accident on IRE's property. We have concluded that liability was not established, and that the judgment must be reversed.

Mrs. Scott was seriously injured when she drove her automobile into a drainage ditch forming the western boundary of IRE's property, a shopping center located in the Pensacola area, referred to as the "Woolco" shopping center. On the afternoon in question, Mrs. Scott had been to another department store, Gayfers, looking for a certain item to purchase. That store did not have it, but it was suggested that she might find it at Woolco, located nearby, but in a separate shopping center. There was some discussion between Mrs. Scott and a sales clerk at Gayfers concerning a "back way" or "short cut" to Woolco's, but the exact directions given, if any, are not clear from the record. Mrs. Scott left Gayfers, and travelled south on "L" street. At a point where she could look to the east and see the Woolco store (which had a large Woolco sign on the side of the building visible to her), she saw what appeared to her to be a road across an open, unpaved area, leading to the Woolco parking lot. She and other witnesses testified as to the appearance of the unpaved area, describing it as being a place where there was no vegetation, the grass was worn away, just dirt or sand, and what appeared to be automobile tire tracks. In order to reach that area, however, when she turned off of "L" street she was first required to drive her automobile over a narrow unpaved area and onto a concrete apron or parking lot (which apparently served an adjacent go-cart track). After traversing the narrow dirt strip, and the paved parking lot, she then ran her car off of the pavement onto the dirt area that she said appeared to be a road or access. Measurements showed that from the edge of the paved area to IRE's ditch was 240 feet. It was also established that since the ground level on the west side of IRE's ditch was somewhat higher than the level of IRE's parking area on the east side of the ditch, the ditch was not visible to one driving an automobile toward it from the west until a fairly short distance from it (one estimate was 35'). Appellees base their argument of liability upon the existence of an "illusion" created by the worn away appearance of the unpaved ground, what appeared to be automobile tire marks, and the ground elevation which obscured the ditch from a distance. They also contend that the Woolco sign on the building, as well as a sign mounted on a pole in the Woolco parking lot tended to support the existence of the illusion, or invitation on the part of travelers such as Mrs. Scott to attempt to use that route for access to the Woolco store.

The concrete ditch, approximately twelve feet wide and ten feet deep, ran the entire length of the western boundary of IRE's property. It was located on IRE's property. A concrete curb ran along the east side of the ditch so as to prevent automobiles on the Woolco parking lot from falling into it, but there was no curb, fence or other barricade along the western side of the ditch, at least at the point where the accident occurred.

Appellees argue in support of the judgment rendered in the court below that IRE is liable because it "permitted the illusion of an approach to exist without warning invitees of the danger". However, we fail to find evidence which would support this conclusion. The unpaved 240 feet of ground traversed by Mrs. Scott's car before it fell into the ditch was not under IRE's ownership or control. Neither was the go-cart parking strip, nor the unpaved strip crossed by Mrs. Scott's car to get to the go-cart parking area when she left "L" street. The *1116 territory crossed by Mrs. Scott on her way to the ditch was in fact not a right-of-way, access, or approach of any sort to IRE's property. If an "illusion" existed, by reason of the appearance of the adjoining landowner's property, IRE did not create it; and there was no evidence from which the jury could have found that IRE could reasonably have anticipated that someone would attempt to use the open, unpaved area as an approach to the Woolco store. Although an employee of Woolco testified that cars had driven into the ditch on two prior occasions (one car approximately a year, and one approximately two months prior to Mrs. Scott's accident), there was no evidence that IRE had knowledge of these incidents. Furthermore, neither incident was pinpointed as to the exact dates, time of day, persons involved, nor any facts whatever disclosing how those occurrences happened. The exact place where these two cars had allegedly entered the ditch was not specifically located. The most definite testimony was that they were simply "approaching from the west". There was no evidence that the drivers of those cars were prospective customers heading from the Woolco parking lot. It would simply be piling inference upon inference to assume that these prior accidents were similar in any respect to Mrs. Scott's.

Appellees also argue the existence of the signs as a factor leading to a conclusion of negligence on the part of IRE. We do not consider that the existence of the large "Woolco" sign appearing on the side of the building as being sufficient to warrant serious consideration. The world abounds with signs identifying business establishments; and besides, Mrs. Scott knew exactly where the Woolco store was located, without the benefit of any sign. The other sign was one erected on a pole adjacent to a traffic lane in the Woolco parking lot, directing patrons to the Woolco Auto Center. There was nothing unusual in the appearance or location of this sign. It was elevated well above car top level and contained the wording "Woolco Auto Center", together with an arrow pointing in a northerly direction, or toward the rear of the Woolco store. This latter sign was located on the east side of an approximately twenty foot traffic lane which ran parallel and adjacent to the ditch into which Mrs. Scott drove her automobile. The width of the ditch being twelve feet, this sign would have been about thirty-two feet from the westernmost edge of the ditch. As Mrs. Scott approached from the west, the elevated sign was not directly in her forward line of sight, but was off to her right a distance of several feet. In fact, the sign was considerably to the right of what would have been the extended southerly boundary of the imaginary right-of-way Mrs. Scott traversed on her way toward the ditch.

The sign itself, in a negligence sense, was totally benign. We can find no logical basis for a finding of liability upon the landowner predicated upon the mere possibility that a person might look out across adjacent property, leave a paved street, and be drawn toward the sign, over unpaved open ground, like a moth to a flame, and thereby injured.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sewell v. Racetrac Petroleum, Inc.
245 So. 3d 822 (District Court of Appeal of Florida, 2017)
Byers v. Radiant Group, LLC
966 So. 2d 506 (District Court of Appeal of Florida, 2007)
Brockney v. Centel Cellular Co. of Fort Walton Beach Ltd. Partnership
950 So. 2d 445 (District Court of Appeal of Florida, 2007)
COMMUNITY CHRISTIAN CENTER v. Plante
719 So. 2d 368 (District Court of Appeal of Florida, 1998)
Thompson v. Gallo
680 So. 2d 441 (District Court of Appeal of Florida, 1996)
City of Milton v. Broxson
514 So. 2d 1116 (District Court of Appeal of Florida, 1987)
Cardaman v. Sportatorium, Inc.
505 So. 2d 31 (District Court of Appeal of Florida, 1987)
Walt Disney World Co. v. Goode
501 So. 2d 622 (District Court of Appeal of Florida, 1986)
Anderson v. Walthal
468 So. 2d 291 (District Court of Appeal of Florida, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
381 So. 2d 1114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ire-florida-income-partners-ltd-v-scott-fladistctapp-1979.