Third District Court of Appeal
State of Florida
Opinion filed August 10, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-162
Lower Tribunal No. 19-31342
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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.
5
