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Florida Second DCA reverses trial court's summary judgment for defendant utility company in case alleging negligent failure to repair protruding water valve on roadway

On April 19, 2017, in Lee County Dep’t of Transportation v. Cantalupo, No. 2D16-234, the Florida Second DCA reversed the trial court’s summary judgment for the defendant utility company in a case alleging a negligent failure to repair a protruding water valve on a roadway and a negligent failure to warn pedestrians about the danger. At the time of the plaintiff’s injury, the asphalt had sunk such that it was no longer flush with the valve, causing the valve to protrude above the asphalt. Approximately three months after the accident, the utility company repaired he asphalt around the valve to bring the asphalt flush with the valve. The plaintiff sued both the utility company and the county. The county owned the roadway and the utility company owned the valve and pipes underneath it. The trial court granted the utility company’s summary judgment motion on the basis that the utility company did not have a duty to maintain the road even though it had repaired the asphalt after the accident. In so ruling, the trial court relied on an agreement between the utility company and the county which assigned the utility company no responsibility for repairing a depression in the asphalt.

The Second DCA cited McCain v. Florida, 593 So. 2d 500 (Fla. 1992) for the principle that the duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader zone of risk that poses a general threat of harm to others. The court cited previous Second DCA decisions for the proposition that a party who has control over premises has a duty of care to keep the premises in repair and that when two parties share control, both parties may have a duty of care. Specifically, with respect to utility companies, the court cited previous Second DCA cases holding that utilities have a duty to exercise care, both in the location or construction and in the use and maintenance of its lines, poles, and equipment. Since the valve was sticking up one and a half to two inches above the asphalt, the Second DCA concluded that it was reasonably foreseeable that someone would trip over a valve that was protruding above the roadway. The Court also concluded that the contractual agreement between the defendants did not negate the utility company’s duty to protect the public, citing previous DCA decisions holding that commercial tenants have a duty to maintain a property in safe condition even if a landlord has contractually assumed responsibility to maintain the premises. On a related issue, the Second DCA opined that while evidence of subsequent remedial measures is ordinarily inadmissible under Fla. Stat. 90.407, the fact that the utility subsequently repaired the roadway would be admissible if the utility denied that it had the authority to control the roadway to make repairs when its equipment did not cause the damage or need repair.