Beverly Williams v. Cecelia Davis
SC05-1817

MAY IT PLEA SE THE COURT. MY NAME IS JACK SHAW. I REPRES ENT THE PETITIONER BEVERLY WILLIAMS. THIS CASE IS BEFORE THECOURT ON A CERTIFIED CERTIFICATION OF G REAT PUBLIC IMPORTANCE FROM THE F IFTH DIST RICT COURT OF APPEAL. IT CONCER NS THE QUESTION OF WHETHER A PRI VATE RESIDENTIAL LANDOWNER HAS A COMMON LAW D UTY TO ST ILL MAINTAIN HIS OR HER PROPERTY AS TO AL LOW UN OBAN INSTRUCTED LINE OF - - AN UNOBSTRUCTED LINE OF SIGHTAT THE INTERSECTION.

JUSTICE: IS YOUR ARG UMENT THAT THERE SHOULD BE N O DUTY WHATSOEVER ON BEHA LF OF THE LANDOWNER?

IN THE CONTEXT OF THISCASE, YES , YOUR HONOR.

JUSTICE: I AM SAYING UNDER THE LAW IS YOUR ARGUMENT THAT THERE IS NO D UTY ON THE PART OF THE LANDOWNER WHAT SOEVER?

I WOULD SAY THAT THERE IS A LI MITED DUTY IN THE CONTEXT OF A STOP SIGN OR YIELD SIGN. OTHERWISE THERE IS NO DUTY .

JUSTICE: LET ME GIVE YOU AN EXAM PLE. LET'S SAY THERE IS A INTERSECTION AND A PIECE OF PROPERTY AT THE INTERSECTION, WHERE THE ONLY WAY THAT ACAR CAN LOOK FOR ON COMING TRAFFIC BECAUSE OF THE WAY THE LANDOWNER HAS SE T UP THEPROPERTY, EITHER BECAUSE THERE IS A WALL AT THE EDGE OF THE PROPERTY O R THERE ARE , THERE IS A HE DGE, A TALL HEDGE AT THE E DGE OF THEPROPERTY, SO THAT THE ONLY WAY THAT A VEHICLE CAN LOOK FOR ON COMING TRAFFIC AT THE INTERSECTION, IS TO ACTUALLY PUT THE CAR OUT INTO THE INTERSECTION, SO THAT THE NOSE IS IN THE INTERSECTION , ITSELF, IN THE RIGHT-OF -WAY, AND CAN CAUSE AN ACCIDENT. IS THERE NO DUTY ON BEHALFOF THE LAND OWNER , AT LEASTTO THE KEEP THE PROPERTY IN SUCH A MANNER SO THAT THE VEHICLES DO NOT HAVE T O PUTTHEMSELVES IN D ANGER IN ORDER TO LOOK FOR ON COMING TRAFFIC?

I WOULD SUGGEST THERE IS NO DUTY ON THE PART OF THE LANDOWNER, EVEN IN THAT S ITUATION, AND THAT THE DUTY TO M A INTAIN THE LINES OF SIGHT IS ON THE PUBLIC E NTITY THAT MAINTAINS THE INTERSECTION.

JUSTICE: AREN'T THERECASES THAT HAVE HELD THAT , IF THE PROPERTY OWNER IS, IF SOMETHING , THE VEGETATION, TREES, WHAT EVER, ARE OBSTRUCTING A TRAFFIC DE VICE , AND THEN THERE WOULD BE SOME DUTY . CORRECT?

YES, YOUR HONOR, THERE ARE, AND I HAVE NO QUARREL WITH THOSE CASES.

JUSTICE: SO HO W DO YOUDISTINGUISH? WHAT REAL POLICY ARE WE ADD ADVANCING BUT -- ADVANCING BY SAYING , BECAUSE THERE IS NO TRAFFIC DEVICE BUT THE S AME KIND OF SI TUATION, THEN THERE IS NO DUTY , BUT IT IS STILL OB STRUCTING A MOTORIST THE AL PS V ISION . -- A MOTORIST'S VISION.

ACTUALLY THERE WAS A YIELD SIGN AT THIS PARTICULAR INTERSECTION THATWAS NOT OBSTRUCTED. BUT GETTING TO THE POINT OF YOUR HONOR'S QUESTION, ITHINK THE DIFFERENCE B E TWEEN OBSTRUCTING THE LINE OF SIGHT AT AN INTERSECTION AND OBSTRUCTING THE TRAFFIC CONTROL DEVICE IS VERY FUNDAMENTAL. MOTORISTS APPROACHING THE INTERSECTION K NOW THERE IS AN INTERSECTION THERE. SIMPLY THE LINE OF SIGHT OF THAT INTERSECTION , HE MAY NOT KN OW THAT THERE IS A STOP SIGN OR Y IELD SIGN. NOT KNOWING IT IS THERE , YOU HAVE A MUCH GR EATER RISK THAT HE WILL R UN THE STOP SIGN.

JUSTICE: WAS THIS PROPERTY IN THE COUNTY ?

THIS PROPERTY IS , THERE WERE PICTURES OF THE PROPERTY IN THE RECORD. IT IS ABOUT EIGHT MILESSOUTH OF DOWNTOWN ORLANDO. I WOULD CHARACTERIZE I T AS RURAL PROPERTY. MY OPPONENT CHARACTERIZES IT DIFFERENTLY .

JUSTICE: WAS IT GOVERNED BY SETB ACKS?

I BELI EVE THERE ARE SETBA CKS . I AM NOT SURE WHAT IS IN THERECORD ON.THAT BUT THERE ARE SOME SETBACKS. YOU CAN SEE IN THE PICTURES , A FE NCE. YOU CAN SEE THAT THERE I S SOME LINE OF SIG HT. THEY CAN SEE TWELVE FEET DOWN THE ROAD .

CHIEF JUSTICE: DO YOU SEE , DOES IT MA TTER UNDER YOUR THEORY, WHETHER SOMEBODY HAS PUT UP TREES OR THE TREES ARE NATURALLY GROWING? IN OTHER WO RD S THEDISTINCTION THAT SOME COURTS HAVE MADE BETWEEN SOMETHING THAT WAS AFFIRMATIVELY DONE TO , SAY , ENHANCE THE PROPERTY, BUT , ALSO, TO OBSTRUCT THE VISION , VER SUS IT NATURALLY OCCURRING CONDITION?DO YOU SEE THAT AS ANY DISTINCTION FOR WHETHER THERE SHOULD BE A DUTY?

I THINK THERE IS ADISTINCTION THERE, BUT I WOULD NOT RELY ON A DISTINCTION BETWEEN ARTIFICIAL VERSUS NATU RAL OR MISFEASANCE VERSUS NONFEASANCE .

CHIEF JUSTICE: I AM SORRY. YOU SAID YOU WOULD NOT?

I WOULD NOT.

CHIEF JUSTICE: SO YOU WOULD SAY WHETHER, IS IT BECAUSE IT IS A TREE? WHAT IF IT WAS A, AGAIN , WASIN COMPLIANCE WITH THE STATUTE , BECAUSE I GUESS IF IT IS NOT IN COMP LIANCE WITH AN ORDI NANCE OR A STATUTE , YOU WOULD AGREE THAT THERE MIGHT BE A DIFFERENT B ASIS FOR RELIEF , CO RRECT? SO WHAT IF IT WAS SOMETHINGOTHER THAN A TREE , YOU KNOW, A SCULPTURE THAT HAD BE ENPUT UP ? IS THERE ANY , AND I T OBSTRUCTS THE VIS ION. IS, DOES IT MATTER , A GAIN , BECAUSE IT IS THE DISTINCTION WE ARE MAKING IS THAT IT IS BECAUSE IT IS ON THEIR PROPERTY , AND NOT ON , IN THE INTERSECTION THAT THERE SHOULD BE NO DUTY ?

THE DISTINCTION I WOULDMAKE, YOUR HONOR , NOT DEAL WITH NATURAL AND ARTIFICIAL . IT DEALS WITH THE SITUATION OF THE PROPERTY ITSELF. THE RURAL SUBURBAN , U RBAN SETTING.

CHIEF JUSTICE: DOES IT MATTER?

DOES MATTER.

CHIEF JUSTICE: DOES MATTER. WHY DOES IT MATTER?

BECAUSE IN AN URBANSETTING SU CH AS WAS PR ESENT IN WITT VERSUS SILVERMAN , Y OU HAVE A MUCH HEAVIER TRAFFIC FLOW, PE OPLE COMING IN AND OUT. PEDESTRIANS.YOU HAVE --

CHIEF JUSTICE: THEN IT IS A ASSESSMENT , SO DOESN'T THAT GO , THEN, TO FORESEEABILITY, WHICH IS R ATHER THAN A BRIGHT-LINE RULE , THAT I THOUGHT YOU WERE TRYING TO ASSERT , THAT IS THAT YOU DON'T LOOK AT WHAT, WHAT JUSTICE WHAT JUSTICE CAN TERO WAS AS KING, IS ARE YOU SAYING IT DOESN'T MATTER WHAT THE CIRCUMSTANCES ARE?NOW I AM HEA RING YOU SAY IT DOES MATTER WHETHER IT I S URBAN OR RURAL , W HAT THE N ATURE OF THE OBS TRUCTION IS,WHAT THE FREQUENCY OF THE TRAFFIC IS, HOW BU SY THE INTERSECTION, THAT THAT ALL WOULD GO INT O A DETERMINATION OF WHETHER A DUTY AR ISES ?

NO , YOUR HONOR. THE BRIGHT LINE DISTINCTIONI AM SUGGESTING IS BETWEEN RESIDENTIAL PROPERTY S WHERE THE TRAFFI C FLOW IS NOT ON TO AND OF F OF , ON TO AND OFFOF THE PROPERTY AS IN WITT , AND RURAL , O R SUB URBAN RESIDENTIAL PROPERTY, WHERE THE TRAFFIC FLOW IS SIMPLY A PASSING MOTO RIST .

CHIEF JUSTICE: WHAT IF IT WERE SOMEBODY VISITING MY H OUSE AND THEY ARE COMING OUT OF MY DRIVEWAY.DOES THAT MATTER AS FAR AS THE DUTY THAT I O WE?

I BELIEVE THAT THAT DRIVEWAY INTERSECTION IS A N INTERSECTION THAT WOULD BE GOVERNED BY THE SAME RULE. WOULD BE GOVERNED IN THIS CASE. IN OTHER WORDS HERE WE HAVE A ST REET INTERSECTION. IN THE CASE OF SOME ONE COMING OUT OF YOUR DRIVEWAY, THAT IS THE INTERSECTION OF YOUR DRI VEWAY WITH THE ROAD .

JUSTICE: WAS THIS A LO T? I MEAN, JUST --

IT W AS AN UNDEVELOPED L OT. R IGHT.

JUSTICE: AN UNDEVELOPED LOT.

NO BUILDINGS ON THE PROPERTY.

JUSTICE: AND ALL OF THE VEGETATION WAS JUST NATURALLY GROWN ?

AS FAR A S WE ARE AWARE IN THE RECORD, THERE IS N O EVIDENCE THAT ANY THING WAS PLANTED TO DO THIS. THESE PEOPLE BOUGHT THIS PROPERTY A FEW Y EARS BEFOREHAND AS PART OF THE , ANOTHER PROPERTY TRANSACTION.

JUSTICE: DI D WE NOT FOR ANUMBER OF YE ARS FO LLOW THE THEORY THAT RESPONSIBILITY OF THE LAND OWNER CAME TO ARISE WHEN THAT VE GETATION ENCROACHED UP ON THE PUBLIC RIGHT-OF-WAY? DID WE NOT FOLLO W THAT FOR ANUMBER OF AR REARS ?

YES -- FOR A NUMBER OF YEARS?

YES.

JUSTICE: AND THEN WE HAVE THE MIAMI BEACH CASE WHICH WAS A BUSINESS AND IT DIRECTED PEOPLE IN A PARTICULAR WAY , SO WHY WOULD IT LEAVE US IN THIS CASE, IF WE FOLL OWED THE PRINCIPLE , WAS THE VEG ETATION HERE ACTUALLY IN THE PUBLIC RIGHT-OF-WAY?

NO , YOUR HONOR, IT WASNOT.THERE WAS SOME VEGETATION THAT WAS IN YOU BUT NOT THE VEGETATION THAT WAS OBS CURING THE LINE OF SIGHT.

JUSTICE: I SAY THE RIGHT-OF-WAY, I MEAN THE FOLIAGE OVERHANGING OR IN SOME WAY INTRUDING , WHETHER IN THE GROUND OR ABOVE THE GROUND. IT WAS NOT?

I BELIEVE IT WAS NOT .

JUSTICE: WAS THIS AN URBAN OR RURAL SETTING? ISLAND CHARACTERIZE IT AS RURAL , YOUR HONOR . THERE WERE --

I WOULD CHARACTERIZE IT AS RURAL, YOUR HONOR . THERE WERE A FEW SCATTERED HOUSES ALONG THE ROAD.

JUSTICE: I GUESS THAT WOULD BE AN IN ITIAL FACT IN SEVERAL CASES, WHETHER THIS WAS YOUR BAN OR RURAL , DEPENDING OUGHT -- WHETHER IT WAS URBAN OR RURAL, DEPENDING ON THE CASE , ANDYOU ARE SAYING REGARDING THE DISTINCTION , I THINK JUDGE SCHWARTZ SAID IN RURAL SETTINGS , THE STANDARDSSHOULD BE DIFFERENT.

I CAN UNDERSTAND IMPOSING H IGHER STANDING IN AN URBANSITUATION WHERE YOU HAVE H EAVY TRAFFIC. IN A RURAL SITU ATION, WIT. IT WAS A SITUATION -- WIT. IT WAS A SITUATION WHERE THE CUSTOMER WAS LE AVING THESTATION THAT HIT THE PEDESTRIAN .

JUSTICE: WAS THERE A DRIVEWAY INTO AND OUT OF THIS LOT?

THERE IS A ROAD, A DIRT ROAD THAT GOES INTO THE LOT BUT IT WAS NOT INVOLVED IN THIS COLL ISION .

CHIEF JUSTICE: IT SEEMSTO ME THAT, WHEN YOU SAID , YOU STARTED OUT SAYING THAT , REALLY, THE DUTY TO MAINTAIN THE LINES OF SIGH T WOULD BE ON THE MUNICIPALITY OR THE COU NTY . BUT GEN ERALLY , WHEN THERE IS A IS SUE OF WHO HAD THAT DUTY , YOU WOULD LITIGATE THAT QUESTION AB OUT WHETHER , UNDER THESE CIRCUMSTANCES , THE LANDOWNER WAS REASONABLE , BECAUSE I GUESS THERE I S SOMETHING IN THE RECORD ABOUT THAT THEY HAD A CTUALLY CONTRACTED WITH THE COUNTY TO TAKE CARE OF THIS , AND IT SEEMS TO ME THAT, IF THE LAND, THE MOTORIST , THE PLAINTIFF , IS IN A POSITION OF SAYING I CAN SUE THE COUNTY AND THEN THE COUNTY S AYS WE HAD ALREADY HAD A CONVERSATION, AND, WITH THE LANDOWNER AND IT WAS THEN THAT ALL OF A SU DDEN YOU DON'T HAVE A POTENTIALLY RESPONSIBLE PARTY, SO WHY, I F THAT IS YOUR ARGUMENT , THAT IS THAT WHEN E VEN IF IT IS ON PRIVATE PROPERTY, IT IS UP TO THE GOVERNMENTAL ENTITY TO MAIN TAIN THE PROPER LINES OF SIGHT , WHY WOULDN'T THAT BE AN ISSUE OF E ITHER INDEMNIFICATION OR J OINT AND SE VERAL LIABILITY ?

I BELIEVE THAT PERHAPS IDID NOT MAKE M Y PO SITION CLEAR.I BELIEVE THAT IT IS THE GOVERNMENTAL ENTITY 'S RESPONSIBILITY TO CONDEMNTHE LAND IF NECESSARY, TO TAKE THE LINE OF SIGHT PRO BLEM AND IT CAN BE RESOLVED.

CHIEF JUSTICE: THAT WAS THIS RECORD , I GUESS THERECAN BE A DIFFERENT ISSUETHAT WAS CLEARLY ESTABLISHED THAT, UNDER THE FACTS OF THIS CASE IT WAS THE COUNTY , BUT I HAVE A SUSPICION THAT THEY MIGHT SAY THERE IS SOVEREIGN IMMUNITY ON THAT ISSUE , THAT IT IS SORT OF A PLANNING DECISION AS TO WHETHER TO TAKE THE LAND OR NOT , AND CERTAINLY THE PERSON, THE MOTOR MOTORIST CAN SUE BA SED ON A PLANNING DECISION THAT YOU DIDN'T TAKE EN OUGH PROPERTY OR SOMETHING.YOU WOULD AGREE WITH THAT?

I WOULD AGREE WITH THAT , THAT IT COULD CERTAINLY AND ISS UE. I DON'T KNOW HOW IT WOULD BE RESOLVED.

CHIEF JUSTICE: I GUESS IN THE MODERN DAY OF , AGAIN , ASFAR AS IF SOMETHING IS IN A RURAL AREA AND THERE IS JUST, YOU KNOW , TREES ALL-AROUND AND ACRE S AND ACRE S , I CAN SEE A POLICY ARG UMENT THAT IS NOT EV EN A REASONABLE , IT IS NOT REASONABLY FORESEEABLE , BUT SINCE WE ARE ALL , WE ARE NOT ALL PROPERTY OWNERS BUT A LOT OF U S ARE PROPERTY OW NERS , THE IDEA THAT WHEN YOU GET TO THE EN D OF THE DRI VEWAY THAT YOU WA NT TO MAKE SURE THAT THE LINE OF SIGHT IS CLEAR , SEEMS TO BE A PR ETTY MINIMAL BURDEN, AND IT CERTAINLY IS FORESEEABLE , SO G IVEN THAT McCAIN AND ALL THE OTHER CASES SINCE M cCAIN IN THIS STATE HAVE, REALLY, RELIED ON FORESEEABILITY AS THE LINCHPIN, WHY ISN'T THAT A BETTER ANALYSIS THAN TRYING TO DECIDE HOW URBAN OR R URAL THE AREA IS , IN ANALYZING THIS CASE?

I N THE KING RE SPECT ANDDISCUSSION OF FORESEEABILITY -- IN THE KING ANDDISCUSSION OF FORESEEABILITY FOLLOWING IT , I WOULD SUGGEST THAT FORESEEA BILITY INCREASING THE RISK IS ONLY ONE FACTOR TO BE CONSIDERED IN DETERMINING WHETHER THERE IS A LEGAL DUTY. OTHER FACT ORS HAVE TO BE CONSIDERED. THE LA W OF THIS STAT E IS THAT WAY , INCREASE ZONE OF RISK BUT NO LIABILITY. THE HO SPITAL , WHERE A SURGEON DEC REASES A CHANCE A FTER PATIENT'S SURVIVAL , CRITICAL CASE.

CHIEF JUSTICE: THAT IS A L EGAL CAUSE THERE. ISN'T THAT A LEGAL CAUSE?

YOUR HONOR , THAT CASE AS I RECALL INVOLVED A QUESTION OF WHETHER THERE WAS A DUTY THAT WAS BREACHED .

CHIEF JUSTICE: SOMETIMES USE WO RDING AND OTHER T Y PES --

PERHAPS AN OTHER EXAMPLE A PSYCHIATRIST WITH A DANGEROUS PATIENT, THE TERRORIST THE SITUATION. HE FA ILS TO WARN.

CHIEF JUSTICE: THAT GOES OFF AND I THINK WE WOULD HAVE TO LOOK AT EACH CASE THE FORESEEABILITY OF THE THIRD PARTY , WHAT IS THE FORESEEABILITY OF A THIRD PARTY DOING SOMETHING THAT CAUSE THE HARM?

THE STATES HAVE UPHELD THAT THERE IS NO DUTY BY THE PSYCHIATRIST TO WARN.

CHIEF JUSTICE: BUT IT IS BASED ON FORESEEABILITY.

FORESEEABILITY IS CERTAINTY A FACTOR. MY POINT IS FORESEEABILITY AND ZONE O F RI SK IS NOT THE ONLY THING. YOU HAVE FOUR TA SKS TO CONSIDER OTHER MATTER S. WHAT THE BURDEN, HOW EXTENSIVE THE BURDEN IS.

CHIEF JUSTICE: I GUESS THAT IS WHERE THE BURDEN ISSUE THAT MAYBE I WAS GETTING TO, WHERE AND AGAIN WHAT IS THE BURDEN , IF IT IS A REASONABLY TRAVELED AREA FOR A LANDOWNER TO , IN AN URBAN OR SUBYOU ARE AND -- SUBURBAN SETTING, K EEP AREAS CLOSE TO INTERSECTIONS CLEAR , SO THERE IS A CLEA R LINE OF SIGHT?

I DON'T DIS AGREE , EXCUSE ME, I DON'T AGRE E THAT IT COULD ONLY APPLY T O INTERSECTIONS , YOUR HO NOR.I THINK IF YOU ARE ON A STRAIGHT STRETCH OF ROAD,FOR IN STANCE , THERE IS ALWAYS THE D ANGER O F SOMEONE DARTING OUT ON TO THE RIGHT-OF-WAY , ON TO THE STR EET . IF YOU HAVE A DRIV EWAY THAT IS A SORT OF INTERSECTION , I THINK YOU CANNOT SAY THAT THIS JUST APPL IES TO INTERSECTIONS. I THINK THE DUTY WOULD APPLY TO ANY PROPERTY AND OUTING THE PUBLIC ROAD . -- TO ANY PROPERTY AB UTTING THE PUBLIC ROAD , SO I DON'T THINK YOU CAN LIMIT IT TO PEOPLE ON THE ENTER EX. THE EXTENT OF THE BURDEN ON EACH PROPERTY OWNER. OBVIOUSLY IT DOES NOT TAKE MUCH TO CUT DOWN A BRANCH NEAR A STOP SIGN OR YIELD SIGN, BUT HOW IS THE PROPERTY OWNTORY KNOW HOW FAR DO I NEED TO CLEAR BA CK THESE TREES?

CHIEF JUSTICE: DOE SN'T THAT GO TO WHETHER THEY EXERCISE REASONABLE CARE UNDER THE CIRCUMSTANCES, IF THIS DEFENDANT ESTABLISHED THAT THEY HAD CONTACTED THE COUNTY. THE COUNTY IS GOING TO TAKE CARE OF IT AND THEY DID EVERYTHING REASONABLE , THENTHERE IS NO LIAB ILITY. I MEAN , I THINK THAT THE ISSUE OF UNDER THE CIRCUMSTANCES , I S VERY BROAD , AND WE DON'T HAVE THOSE FACTS BU ILT IN YET AT THIS TIME AS TO WHAT THE LANDOWNER DID OR DIDN'T KNOW, WHETHER THEY KN EW THERE WASA HAZARD , WHETHER THEY WERE WARNED ABOUT IT, WHETHER THEY DIDN 'T DO ANYTHING DESPITE WARN INGS, WHETHERTHERE WERE PRIOR ACCIDENTS AT THE SAME PL ACE , W HETHER , YOU KNOW, THE MOTORIST WAS SOMEBODY COMING OUT OF THEIR O WN, THE LANDOWNER 'S DRIVEWAY. AREN'T THOSE ALL MULTIPLE FACTORS THAT GO INTO THE E QUATION OF REASONABLE CARE ?

ALL OF THOSE THIN GS GO INTO QUESTIONS AS IT GOES THROUGH THE STATUTE. THROUGH THE Mc CAIN ANAL YSIS , THE F IRST BE ING IS THERE A D UTY AND THE SE COND BEINGPROXIMATE CAUSE. SOME OF THEM ONLY APPLY TO ONE AND SOME APPLY TO BOTH , BUT MY SUGG ESTION HERE IS THE COURT SHOULD TAB ESTABLISH A RULE -- SHOULD ESTABLISH A RULE FOR RESIDENTIAL OWNER OUTSIDE THE URBAN CONTEXT , THE RE IS NO DUTY A L ONG WITH COMPLIANCE O F ORDINANCES AND ZONING REQUIR EMENT , IS A LONG A S YOU ARE NOT IMPINGING ON THE RIGHT-OF-WAY, MAINTAIN FOR PASSING MOTORISTS , A LINE OF SIGHT FROM THE INTERSECTION. THAT IS --

CHIEF JUSTICE: YOU YOU WILL ARE IN YOUR REBUTTAL. WITH THAT VERY GOOD STATEMENT OF WHAT YOU WOULD LIKE US TO DETERM INE .

THANK YOU .

MAY IT PLEASE THE COURT. MY NAME IS DI RAN SE ROPIAN , AND I AM HERE FOR THE PLAINTIFF CECELIA DA VIS.

CHIEF JUSTICE: WHAT IS W RONG WITH THAT RULE THAT MR J UST ENUNCIATE ED?

I THINK IT IS O VERLY NARROW AND I AM PRACTICABLE IN A MO DERN SOCIETY TO ESTABLISH A BRIGHT-LINE RULE THAT CAN WORK FOR ALL FACTUAL SCENARIOS , WH ETHER I T IS YOU MA DAM JUSTICE, PULLING OUT OF YOUR DRIVEWAY ON TO A STREET OR AT THIS INTERSECTION WHERE T WANDA DAVIS WAS K ILLED BECAUSE SHE COULDN'T SEE THE INTERSECTION.

JUSTICE: I AM SORRY . TO ME THAT SE EMS TO BE A FAR DIFFERENT SITUATION THAN PEOPLE PASS AGO PIE CE OF PROPERTY AND SOMEONE BEING THROWN ONTO THAT TRAFFIC BY A PARTICULAR LO CATION OF THE DRIVEWAY. I AM HAVING DIFFICULTY WITH THAT ANALOGY . IT SEEMS TO ME THAT THE COURT HERE IS EX PEND ING THIS BUSINESS OPERATION O N MI AM I BEACH , A L I TTLE MORE BROADLY THAN WE HAVE EVER SEEN IT APPLIED.

WE LL THAT , IS PROBABLY TRUE. THE McCAIN ANALYSIS , THE REASONABLE FORESEEABILITY OF RISK ANALYSIS , PROBABLY IS A B ROADER INTERPRETATION OF H OW TO DEFINE REASONABLE CARE THAT IS DIFF ERENT THAN THE EGRARIAN RULE OR FOR THAT MATTER CONFLICTS THAT RELATE TO E ITHER COMMERCIAL OR PRIVATE INJURIES EI THERON OR OFF THE PROPERTY OR INJURIES THAT RELATE TO WHETHER THEY WERE IN AN URBAN OR IN A SUBURBAN OR RURAL AREA. WHY BE CONSTR AINED TO ABRIGHT-LINE RULE WH IC H DOESN'T APPLY TO ALL?

JUSTICE: MY CON CERN IN WIT.IT IS HAS COME BACK , -- MY CONCERN IN WITT HAS COME B ACK OBVIOUSLY NOW IN THIS CASE, AND THIS IS SOMEWHAT OF A POLICY MATTER AS DESCRIBED BY THE FI FTH DISTRICT, AND MY CONC ERN OF THE OUTLINE THAT JUSTICE PARIENTE WAS REFERRING TO , IS THAT HERE WE HAVE GOT TO RECOGNIZE THAT WE LIVE IN A STATE WHERE WE HAVE THE FABRE DECISION.WE HAVE A SITUATION IN WHICH , IF YOU OPEN UP THIS TYPE OF LIABILITY FOR SOMETHING THAT IS NOT OVERHANGING THE RIGHT-OF-WAY, THAT IS STRICTLY ON A RESIDENTIALPIECE OF PROPERTY , THA T THE BURDEN OF THAT IS GOING TO FALL ON HOMEOWNERS INSURANCE , AS OPP OSED TO AUTOMO BILE INSURANCE . THAT IS GOING TO BE A BURDEN . AND BECAUSE OF FABRE , LAWYERS ARE GOING TO HAVE T O A DD THESE HOMEOWNERS IN ALMOST EVERY CASE. AND SO I T SEEMS TO ME THAT WE HAVE LIVED WITH A RULE ALL MY CAREER , AND WHY ARE WE GOING TO CHANGE THAT RULE TODAY ?

IF I MAY , JUSTICE , THE M cCAIN ANALYSIS WAS AS THIS COURT STATED IN WITT , INTENDED TO BE A RESTATEMENTOF THE LAW OF NEGLIGENCE IN THE STATE OF FLORID A, SO I AM NOT UNMINDFUL OF THE OBSERVATIONS THAT YOU AREMAKING, BUT WHERE WE ASK THAT THE FORESEEABI LITY OF THE RISK OF HARM, THEN , CREATES A CORRESPONDING DUTY TO DIMI NISH O R DEC REASE THEHARM, THAT IS NOT AN UNREASONABLE RULE T O APPLY .

CHIEF JUSTICE: BUT LET'S GO BACK TO SOMETHING THAT I THINK IS AN IMPORTANT DISTINCTION BETWEEN WHETHERYOU HAVE A DUTY , IF IT IS SOMEBODY ON YOUR PROPERTY THAT IS COMING OUT INTO THE INTERSECTION , VERSUS PAS SING MOTORISTS. AND I AM , WHERE THERE IS COMPLIANCE WITH ALL APPLICABLE STATUTES , AND THE SHRUBBERY IS N OT IMPINGINGON THE RIGHT-OF-WAY , HOW , THE DUTY EXTENDING TO PASSING MOTORISTS , T ELL M E WHY THAT IS A N APPROPRIATE EXTENSION OF McCAIN.

WELL , I THINK THAT JUDGESCHWARTZ SAID , IN EV ANS , IN HIS DI SSENT , THAT THE REASON BEING THAT , FOR THE RULE THAT THEN OB TAINED WAS OVER BECAUSE THIS SOCIETY IS NO LONGER AN AGRARIAN SOCIETY , AND I AM NOT MEANING TO DISREGARD YOUR QUESTION FROM APPLYING THE REASONABLE FORESEEABILITY OF A RISK OF H ARM , SO IF YOU HAVE AN ENORMOUS PRIV ACY H E DGE AT YOUR DRIVEWAY THAT PREVENTS SOMEONE LEA VING FROM SEEING ON COMING TRAFFIC , IT IS FORESEEABLE THAT THERE CANBE A RESULTING ACCIDENT.

CHIEF JUSTICE: AS I AM HEARING WHAT MR . SHAW IN HIS LAST STATEMENT WAS, IS HE WAS TAL KING A BOUT A DUTY OF PASSING MOTORISTS . HE MIGHT HAVE GO NE TO VERSUS SOMEBODY LEAVING YOUR OWN PROPERTY.

IN DEED AND I AM MINDFULOF THE CASES THAT TALK ABOUTWHETHER OR NOT A DUTY IS OWED T O PERSONS OFF THE PREMISES VERSUS PERSONS WHO ARE INVITEESE OR ON THE PREMISES. I DON'T BELIEVE THAT THAT , E ITHER , IS A MEANINGFUL DISTINCTION WHICH SHOULD OBTAIN IN THE COURT'S DETERMINATION OF WHETHER A D UTY IS OWED UNDER THE PARTICULAR FACTS OF THE CASE, SO FOR MOTORISTS PASSING BY, FOR EX AMPLE LET'S USE THEFACTS OF THIS CASE , WHERE T WANDA GREEN CA ME TO THIS INTERSECTION. THE RE IS A YIELD SIGN ON HER RIGHT.SHE IS SU PPOSED TO YIELD TO TRAFFIC ON THE OTHER ROAD . THE SIDNEY HAYES ROAD. IN THIS CASE THERE IS AN ENORMOUS FOLI AGE STAND OF TREES , HED GES , BUSHES. IT IS COMPLETELY UNCLEAR IN THE RE CORD WHETHER THEY ARE NATURAL OR ART FIF ERBL -- OR ARTIFICIAL.

JUSTICE: LET M E ASK YOU A QUESTION ON THAT POINT. YOU TALK ABOUT A MO DERN SOCIETY WITH HEAVY ZONES , RIGHT-OF-WAY LIN KS , ANDLET'S SAY ON THIS CASE THERE IS A , LOOKING AT THE PICTURE , A CLEAR RIGHT-OF-WAY AND A DIFFERENCE BETWEEN THE PA VED R OAD AND THE FENCE AND THE SHRUBBERY , AND DO YOU AGREETHERE IS NO INDICATION THAT ANY OF THIS WAS ON THE RIGHT-OF-WAY.

I AGREE WITH THAT.

JUSTICE: YOU AGREE WITH THAT. SO THIS PROPERTY OWNER WAS IN COMPLIANCE WITH ALL COUNTY, CITY AND STATE ORDINANCES AND THE WI DTH O F THE RIGHT-OF-WAY AS DETERMINED BY THE MUNICIPALITY.

TO THE EXTENT THAT IS DEVELOPED IN THE RECORD , I WOULD AGREE WITH T HAT.

JUSTICE: WHY SHOULDN'T THAT BE SUFFICIENT?

BECAUSE IT I S FORESEEABLE THAT, IF Y OU HAVE AN ENORMOUS STAND OF FOLIAGETHERE , A PERS ON WHO IS SUPPOSED TO O PERATE THEMOTOR VEHI CL E AND COMPLY WITH THE YIELD SIGN WILL NOT BE ABLE TO DO SO WITHOUT INCHING FORWARD INTO THE INTERSECTION, T O THE POINT OF RISK. AND SO THAT IS THE FORESEEABLE HARM THAT AR ISES FROM NOT TRIMMING THE TREES AND THAT FOLI AGE BACK. I MEAN, IF WE ARE LO OKING AT WHAT IS THE BURDEN ON THE LANDOWNER THAT IS IMPOSED BY OBSERVING A DUTY OR BY ESTABLISHING A DUTY - -

JUSTICE: HOW IS THE LANDOWNER, IF THE LANDOWNER IS COMPLIANT WITH THE LEGISLATION ORDINANCES , WHATEVER, THAT SAYS THIS IS HOW FA R YOU HAVE TO MA INTAIN A CLEAR EASEMENT ADJACENT TO THE RIGHT-OF-WAY , AND LANDOWNER IS COMPLI ANT WITH THAT , HOW , AREN'T WE GETTINGINTO A REAL GRAY AREA ON HOW MUCH F URTHER THE LANDOWNER MUST GO?

I SUPPOSE, BUT IT IS SUBSUMED WITHIN YOUR QUESTION, THE NOTION THAT COMPLIANCE WITH ORDINANCES OR EASEMENTS OR WHAT EVER THE REGULATION RESPECT AS TO ASIGHT LINE IS SUF FICIENT TO DISCHARGE THE DUTY THAT RELATES TO THE RISK OF HARM .

JUSTICE: LET ME GIVE YOU AWE PRAC TICAL EXA MPLE.

YES, SIR .

JUSTICE: I SAW AN ACCIDENT HERE IN TALLAHASSEE MYSELF WITH A TEN FOOT DIAMETER O AK TREE ON THE CORNER OF SOMEBODY'S PROPERTY AT THE INTERSECTION IN A RESIDENTIAL URBAN SETTING.IF WE TAKE YOUR PO SITION AND THE SDURS , IS THAT HOME OWN - - AND THAT ACCIDENT OCCURS, IS THAT HOMEOWNER LIABLE FOR NOT R E MOVING THE 300-YEAR-OLD OAK TREE THAT STANDS ON THE CO RNER OF THEIR PROPERTY TO KEEP THE VIEW OF THE PASSING MOTORIST?

CONCEIVABLY THERE CAN BE A CORRESPO NDING DUTY ON THE LAND OWN TORY DO SOMETHING TO E MILE RATE THE -- TO EMELIORATE THE REASONABLE RISK, AND WE DO HAVE CASESTHAT ARE C ITED IN OUR BR IEF THAT TALK ABOUT OBSTRUCTIONAFTER STOP SIGN, AND AS THE FIFTH DISTR ICT STATED, IF THE SITUATION ON THE PROPERTY CAN C REATE A HARM BY HAVING A TREE LIMB BLOCK A SIGN, THEN WHY IS IT ANYDIFFERENT TO HAVE AN ENTIRE STAND OF FOLIAGE THAT OBSTRUCTS THE INTERSECTION , ALSO GIVE RISE TO A DUTY TO EMELORIATE TO THE RISE OF HARM.

JUSTICE: BECAUSE IT PROTUDES ON THE PUBLIC RIGHT-OF-WAY AND HERE YOUSEEM TO BEING A DEGREEINGTHAT IT DOES NOT PROTRUDE INTO THE PUBLIC WA Y, WHETHER THAT IS AIR SPACE OR LAND S PACE O R AN YTHING , SO YOU DON'T SEE A DIFF ERENCE BETWEEN SOMETHING THAT ACTUALLY PROTUDES INTO THE PUBLIC AREA AND SOMETHING THAT DOES NOT?

I DON'T WHEN WE ARE APPLYING THE McCAIN ZONE OF FORESEEABILITY RISK OF ANALYSIS.

JUSTICE: WAS THAT NOT MORE FROM A BUSINESS OPERATIONAL STANDPOINT THAN IT WAS AN OWNER OF PROPERTY , BECAUSE IT IS THE WAY THEY OPERATED THAT SERVICE STATION AND IT WAS AS TH OUGH YOU FUNNELED PE OPLE OUT PAST O NLY ONE AREA. YOU COULDN'T GET OUT ANYWHERE ELSE AS I RECALL. THERE WERE HEDGES AND DROP-OFFS , SO THAT WAS MORE AFTER BUSI NESS OPERATION OF YOUR LAND THAN IT WAS JUST A PURE LANDOWNER, WAS IT NOT?

ABSOLUTELY . WITT CERTAINLY WAS, EVOLVED OR MADE THOSE STATEMENTS WITHIN THE PU RVIEW OF A COMMERCIAL ESTABLISHMENT , A ND THE IN GRESS AND E GRESS T O IT , BUT FOR PURPOSES OF THE CORRESPONDENCE ING DUTY THAT A LANDOWNER HAS, WHETHER IT IS A PRIVATE LANDOWNER OR A PRIVATE RESIDENCE VERSUS A COMMERCIAL ONE , HOW IS THE RISK OF HARM DIFFERENT TO THE PASSING MOTORIST WHO CAN'T SEE THE INTERSECTION V ERSUS THE MOTORIST WHO IS LEAVING THE GAS STATION, WHO CAN'T SEE THE PEDESTRIANS BECAUSE THEY ARE OBSTRUCTED BY A STAND OF FOALE A.M.? EACH HAS THE SAME -- OF FOLIAGE? EACH HAS THE SAME ESSENTIALRISK, WHICH IS THAT OBSTRUCTION OF THE VIEW OF THE MOTORIST INCREASING THE LIKELIHOOD OF AN ACC IDENT , AND IT SEEMS TO ME THAT THE POLICY CONSIDERATIONS THATTHE COURT HASAL ALLUDED TO ARE SUBS UMED -- THAT THECOURT HAS ALLU DED TO ARE SUB SUMED WITHIN REASONABLE FORESEEABILITY. WHAT IS A REASONABLE STANDARD TO DAY IN 2006 OR WHEN THIS DISAPPEARED?

CHIEF JUSTICE: JUSTICE CANTERO HAS A QUESTION.

JUSTICE: DOES THERE HAVE TO BE KNOWLEDGE ON THE PART OF THE PROPERTY OWNER THAT WHATEVER FOLIAGE OR ARTIFICIAL OBST RUCTION OBSTRUCTS THE V IEW OF THE RIGHT-OF-WAY ?

I WOULD BE LIEVE THAT COMMON SE NSE OF THE PROPERTY OWNER IN THIS CASE WHERE IT IS A UNDEVELOPED PIECE OF PROPERTY , I GUESS THAT THEY WOULD HAVE SOME KNOW LEDGE , JUST ON THE FACT THAT THEY --

JUSTICE: I AM NOT SAYING WHETHER SOMEBODY WOULD HAVE KNOWLEDGE BUT WOULD THEY HAVE TO HAVE KNOWLEDGE IN ORDER TO IMPOSE LIABILITY?

THAT WOULD BE L I KE AS ON STITCH ST ICKING ITS HEAD INTHE STAND IN THE SAND AND S AYING I WASN'T OFF MY PROPERTY AND DIDN'T KNOW THE T REES HAD G R OWN AND THERE FORE I HAVE NO DUTY.

JUSTICE: THAT IS WHAT I AM GETTING AT. MANY PEOPLE OWN PROPERTY IN OTHER STATES, OTHER COUNT COUNTIES AND THEY -- AND OTHER COUNTIES AND THEY D ON'T GO THERE ON A PERIODIC B ASIS TO SEE HOW MUCH THETREES OR BUS HES HAVE GROWN, SO IF THEY DON'T KNOW THAT SOMETHING IS OBSTRUCTING THE V IEW, DO THEY HAVE LIAB ILITY ANYWAY , VER SUS A HOMEOWNER WHO IS THERE ALL THE TIME AND KNOW S OR SHOULD KNOW WHETHER SOMETHING IS OBSTRUCTING THE VISION OF MOTORISTS?

IN MY VIEW , THEY CAN HAVE LIABILITY, BECAUSE IT IS A MATTER OF WHAT IS REASONABLE. IF IT I S A 10,000 ACRE RA NCH , I THIN K THAT I T BECOMES EASIER FOR A COURT TO MA KE A DETERMINATION THAT, UNDER THOSE FACTS , WHAT EVER M IGHT OBTAIN , THAT THERE MAY NOTBE A CORRESPONDING DUTY , BUT IN A RULE OR A SUBURBAN OR AN URBAN ARE A AS THIS SEEMS TO BE , THERE IS A CORRESPONDING DUTY TO BE A WARE OF WHAT IS HAPING ON YOUR PROPERTY. THOSE PICTURES THAT ARE IN THE RE CORD AND THAT MS TESTIFIED TO , DEMONSTRATE THAT THERE ARE HOPES , RESIDENCES, CHILDREN -- THERE ARE HOMES, RES IDENCES , CHILDREN, PEOPLE DRIVING THROUGH THERE. SHE EVEN SAID SHE DROVE HER HUSBAND TH ROUGH THERE ATSOME POINT AND THIS PERSON HAS KNOWLEDGE OF THE INTERSECTION, THE FACT THAT IT WAS CONTROLLED BY A YI ELD SIGN AND NOT A TRA FFIC LI GHT, WHICH IS A IMPORTANT OBSERVATION THAT I THOUGHT OF IN PREPARATION FOR TODAY , BECAUSE A YIELD SIGN REQUIRES A MORE AC TIVE PARTS PAINGTS O F A MOTOR -- PARTICIPATION OF A MOTORIST TO BE ABLE TO SEE THE E NTIRE INTERSECTION, THAN A TRAFFIC LIGHT WHERE YOU COULD RE LYON THE TRAFFIC LIGHT, ALTHOUGH I WOULD SUBMIT THAT PRUDENT DRIVERS SHOULD NOT ENTER INTERSECTIONS WITH OUT L OOKING BOTH WAYS, WHETHERTHEY HAVE A GR EEN LIGHT OR N OT. IN ANSWER TO YOUR QUESTION , JUSTICE CANTERO , IS YES , I THINK THAT THERE SHOULD BE A REASONABLE DUTY THAT EVOLVES UPON THE LANDOWNER THAT IS DIRECTLY RELATED TO THE FACTS AND CIRCUMSTANCES OF EACH CASE , WHICH IS WH Y THE McCAIN FORESEEABILITY ZONE OF RISK WI LL WORK FOR A RESIDENTIAL LANDOWNER AS EASILY AS IT WOR KED FOR A COMMERCIAL ESTABLISHMENT , AND FOR THAT REASON WE BELIEVE THAT THE FIFTH DISTRICT GOT IT RIGHT IN REVERSING THE SUMMARY JUDGMENT WHICH FOUND THAT THERE WAS NO DUTY UNDER THEFACTS OF THIS PARTICULAR CASE. IF THERE ARE NO MORE QUESTIONS WE RELY O N OURBRIEF AND WE ASK THE COURT TO AN SWER THE AFFIRMATIVE QUESTION, ANSWER THE CERTIFIED QUESTION AFFIRMATIVELY AND RE MAND THECASE FOR FU RTHER PROCEEDINGS.THANK YO U.

CHIEF JUSTICE: THANK YOU. MR . SHA W.

MAY IT PLEASE THE COURT. I ALSO WOULD RELY ON MY BRIEF FOR THE ISSUES. I CLAR IFY ONE FACT UAL THING THAT I DON'T THINK WAS CLEAR.MR. AND MRS. WILLIAMS DID NOT LIVE ON THIS PROPERTY.

CHIEF JUSTICE: USING THAT AS A DISTINCTION , IN OTHER WORDS IN ANSW ERING THIS OR REFRAMEING IT , MAKING A DISTINCTION BETWEEN AT LE AST PASSING MOTORISTS VERSUS SOMEBODY COMING OFF OF YOUR PROPERTY, AND WHETHER THE PROPERTY IS ONE THAT SOME ONE LIVES ON VERSUS A N UNDEVELOPED LOT. IS THAT AT LEAST FOR , I GUESS FOR NOW THAT WOULD SATISFY YOU, IF WE NARROWED IT , BUT DO YOU THINK THAT IS A REASONABLE DISTINCTION?

I THINK THE BA SIC DISTINCTION AND A VERY REASONABLE ONE IS BET WEENTHE PASSING MOTORIST AND THE PERSON WHO WAS INGRESSING OR EGRESSING. OBVIOUSLY THE FACT THAT THESE PEOPLE DID NOT L I VE ON THIS PROPERTY , THERE WOULDN'T HAVE BEEN A PROBLEM WITH THAT. I DON'T THINK IT IS NECESSARY .

JUSTICE: IN THIS CASE , THERE APPEARS TO BE SOME PICTURES THAT ARE IN THE RECORD THAT , WHAT W E REALLY HAVE ON THIS PROPERTY IS IT IS REALLY BIG TREES , AND THAT THE LIMBS FROM THE TREEARE HANGING OVER INTO THE ROADWAY , SO WHY ISN'T THAT AN OBSTRU CTION OF THE RIGHT-OF-WAY ?

YOUR HONOR , I HAVE LOOKED AT THOSE PICTURES. ALSO I HAVE LOOKED AT THE SURVEYOR, THE SU RVEY OF THIS A REA, AND I HAVE LOOKED AT THE RECORD. A S FAR AS I CAN TELL FROM THIS RECORD , AL THOUGH THE LIMBS EXTEND OUT BEYOND THE FENCE , THEY DO NOT EX TEND INTO THE RIGHT-OF-WAY.

JUSTICE: WHAT PART OF IT , THEY EXTEND BE YOND THE FENCE , WHERE DO YOU HAVE, HOW FAR DO THEY HAVE TO BE TO SEETHE RIGHT-OF -WAY , BECAUSE IT SEEMS TO ME THAT THEY AREOUT THERE PRETTY FAR OVER THE STREET. HOW FAR OUT DOES I T HAVE TO BE IN OR DER TO EXTEND BEY OND THE RIGHT-OF -WAY?

I THINK THAT , IF THE LIMB IS EXTENDE D INTO THE AIR S PACE ABO VE THE RIGHT-OF -WAY THAT CREATES A DIFFERENT SITUATION. I DON'T KNOW WHAT THE DISTANCE IN THIS PARTICULAR SITUATION IS, IF THAT IS YOUR QUESTION. I THINK IT HAS BEEN AGREED TO BY BOTH PARTIES THAT THIS IS NOT A CASE IN WHIC H IT DOES EXTEND ON TO THE RIGHT-OF-WAY.

CHIEF JUSTICE: THAT IS PART OF THE PARAMETERS O F WHAT YOU ARE AT LEAST PROPOSING HERE , NO VIOLATIONOF STATUTE AND NO EXTENSIONINTO THE RIGHT-OF-WAY , PASSING MOTORIST , UNDEVELOPED LOT.

EXACTLY. IF THERE ARE NO FURTHER QUESTIONS , THANK THE COURTVERY MUCH.

CHIEF JUSTICE: T HANK YOU V ERY MU CH. THE COURT WILL TAKE ITS MORNING RECESS. IF POSSIBLE , WE ARE GOING TO TRY TO T AKE IT FOR TEN MINUTES R ATHER THAN 15 MINUTES, BECAUSE WE HAVE T WO MORE CASES AND ONE IS A DEATH CASE. WE WILL NORTHBOUND RECESS FOR TEN M INUTES .

MARSHAL: PLEASE RISE.