03-2929 DEL RIO V. CITY OF HIALEAH

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State: Florida

Court: Florida Third District Court

Docket No: 03-2929 DEL RIO V. CITY OF HIALEAH

Case Date: 05/11/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT ESTHER DEL RIO, Appellant, vs. CITY OF HIALEAH, HECTOR ABREU and ILEANA PADRON, Appellees. ** ** ** ** ** ** Opinion filed May 11, 2005. An Appeal from the Circuit Court for Miami-Dade County, Ronald Dresnick, Judge. Neufeld, appellant. Kleinberg & Pinkiert and David Kleinberg, for LOWER TRIBUNAL NO. 02-27402 CASE NO. 3D03-2929 JANUARY TERM, A.D. 2005

Luis E. Ordonez & Associates and Frances F. Guasch, for appellees Hector Abreu and Ileana Padron. Akerman Senterfitt and Jennifer Cohen Glasser and Michael Fertig, for appellee City of Hialeah. Before GREEN, RAMIREZ, and SUAREZ, JJ.

SUAREZ, J. Plaintiff/Appellant, from a summary Esther Del Rio ("Del in Rio") appeals of

judgment

entered

favor

Defendants/Appellees, Hector Abreu and Ileana Padron ("Abreu and Padron"). Del Rio argues on appeal that the trial court erred

in entering a summary judgment claiming there are issues of material fact as to whether Abreu and Padron created the

dangerous condition on the sidewalk in question which caused her to fall. Appellee, City of Hialeah, argues on appeal that the trial court erred in granting summary judgment claiming a We

Hialeah ordinance creates a third party cause of action. reverse and remand for further action.

Del Rio alleges she was jogging in Hialeah when she tripped and fell into a hole in the city-owned sidewalk. She brought an

action against the City of Hialeah and the homeowners, Abreu and Padron, whose property abuts the public sidewalk. Abreu and

Padron denied having knowledge of or causing the hole in the sidewalk and moved for summary judgment. One of the issues addressed at the summary judgment hearing was whether Hialeah Ordinance 82-911, which Del Rio claims was City of Hialeah Ordinance Code Section 82-91. Curb, gutter, and sidewalk maintenance by abutting owners or occupants (2000). (a) It is unlawful for any owner, occupant, or agent of any property to allow the sidewalks, driveways, curbs, or gutters abutting or contiguous to such property to remain in condition that renders them unsafe, dangerous, or detrimental for the purpose for which they were intended.
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violated by Abreu and Padron, creates a third party cause of action. In response to the trial court's specific question as

to whether any of the Hialeah ordinances create a third party cause of action against the abutting landowner should the

landowner fail to comply with the Hialeah ordinances, the City inadvertently stated that the ordinances do not create such a cause of action. Based on that representation, the Judge found

no liability on the part of abutting property owners Abreu and Padron. See Schupbach v. City of Sarasota, 765 So. 2d 131 (Fla. 2d DCA 2000)(statute specifically must provide for a private

(b) A property owner, occupant, or agent shall inspect the sidewalk, driveway, curbs and gutters for unsafe conditions. Where a sidewalk, curb, and gutter is in the public right-of-way and in an unsafe condition, the property owner, occupant, or agent thereof, or third party, shall immediately notify the city of any unsafe condition by written notice. Upon investigation and determination by the city that the condition was not caused by action of the owner, occupant, or agent thereof, or a third party, the city will not charge the owner, occupant, agent, or third party if the city repairs the condition. If the owner, occupant, or agent thereof, or third party cause the damage, then the person who caused the damage shall be required to repair or replace the damage in the manner provided in this division for the construction of new sidewalks, curbs, or gutters at his or her own cost; or pay the city to make such repairs or replacement. If the property owner, occupant, or agent thereof fails to notify the city of any unsafe condition caused by a third party, the property owner, occupant, or agent cannot raise the defense to a claim of liability that the unsafe condition was caused by a third party. If the owner, occupant, or third party does not repair or replace the damage or otherwise pay the city, the city shall assess the owner of the property for costs incurred by the city for repairs or replacement. Such assessment, if not paid within 30 days, shall become a lien against the property provided in this code or state law. 3

cause of action for abutting landowners' failure to maintain a public sidewalk); Murthy v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994)(a statute that does not purport to establish civil

liability but merely makes provisions to secure the safety or welfare of the public will not be construed by the courts as establishing a civil liability). The trial court next concluded

there was insufficient evidence that Abreu and Padron caused the sidewalk defect. Therefore, the court found no liability as an

owner whose property abuts a public sidewalk owes no duty to the public to maintain the sidewalk solely because the property

abuts the sidewalk. So. 2d 1131 (Fla.

See Beattie v. City of Coral Gables, 358 3d DCA 1978); Freundlich v. South Seas

Operating Corp., 398 So. 2d 490 (Fla. 3d DCA 1981); Cantens v. Jeff

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