City of Miami v. Navarro

Third District Court of Appeal
State of Florida
Opinion filed March 2, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-3038
Lower Tribunal No. 13-8439
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City of Miami,
Appellant,
vs.
Facunda S. Navarro,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Antonio Arzola,
Judge.
Victoria Méndez, City Attorney, John A. Greco, Deputy City Attorney,
Richard Otruba, Senior Assistant City Attorney, and Forrest L. Andrews, Assistant
City Attorney, for appellant.
Arnold R. Ginsberg; Robert Rossano, for appellee.
Before SUAREZ, C.J., and FERNANDEZ and LOGUE, JJ.
SUAREZ, C.J.
The City of Miami (the “City”) appeals a final judgment entered on a jury
verdict finding the City negligent based on a raised brick paver in a sidewalk over
which Appellant Facunda S. Navarro tripped and fell. Ms. Navarro presented no
evidence that the City had actual notice of the raised brick, and the photograph of
the area introduced at trial in an attempt to prove constructive notice was legally
insufficient to raise an inference as to the length of time the raised brick paver had
existed. Therefore, we reverse.
This case arose when Ms. Navarro was injured after she tripped and fell over
a raised brick while walking on a brick-paved sidewalk in the City of Miami. In
order to maintain a prima facie case of negligence against the City, Ms. Navarro
had to prove either that the City had actual knowledge of the sidewalk defect, of
which there was no evidence, or constructive knowledge through some evidence
that the sidewalk defect existed long enough that the City should have known of it.
Leon v. City of Miami, 312 So. 2d 518, 519 (Fla. 3d DCA 1975). In an attempt to
establish the City’s negligence, Ms. Navarro relied upon a color photograph of the
raised brick that she argued was sufficient, by itself, to infer that the defect had
existed for a significant period of time to establish the City’s constructive notice of
the defect. Ms. Navarro did not provide any testimony as to the length of time it
would take for a brick paver to raise up in the manner she claimed the photograph
demonstrated.1
1 Appellant did provide some testimony regarding the sinking of brick pavers, but
that was not pertinent to the question at issue. Likewise, Appellant’s photographs
of an entirely separate area of a nearby sidewalk were also not pertinent to the
issue.
2
The trial court found that the photograph was legally sufficient and denied
the City’s motion for directed verdict, thus allowing the issue of whether the defect
had existed for a sufficient length of time to go to the jury. This was error. The
issue of whether a photograph alone is legally sufficient to show negligence
through the passage of time was answered by the Supreme Court in Hannewacker
v. City of Jacksonville Beach, 419 So. 2d 308 (Fla. 1982). There the Court stated:
If the photograph portrays a condition that has some
distinguishing feature which clearly shows that the defect
has existed for a long period of time, it may afford the
jury a basis to infer that a significant period of time has
passed. If the photograph is ambiguous on this point and
what is shown makes it questionable whether a
significant period has passed, the jury would necessarily
be required to indulge in speculation to determine the
duration of the condition. In such a case the photograph
without live testimony is insufficient. This is no different
than if a witness testifies to the condition of a defect at
the time of an accident and there are no distinguishing
features or other testimony to indicate its duration. In
such instance the trial judge is entitled to direct a verdict
on the question of constructive notice. Since that is the
law in effect for testimonial evidence, it should be the
same when the witness is a photograph. But there are
photographs which may constitute tangible evidence of
the scene of an accident sufficient to raise an inference as
to the length of time the defect was present. While this
depends entirely on the condition sought to be depicted,
the photograph must clearly demonstrate that a
significant period of time has passed.
Id. at 311-12 (emphasis added).
The photograph provided by Ms. Navarro failed to satisfy the requirements
of Hannewacker. While the photograph
3
did show a raised brick paver, that was all that it showed. There is nothing
contained in the photograph itself that demonstrates, much less clearly
demonstrates, the passage of any time relative to the raising of the brick. In order
to arrive at the decision that a significant time had passed, the jury would have had
to speculate about the duration of the condition. Such speculation is not permitted
under Hannewacker. In the absence of any other evidence on that issue, the trial
court should have directed a verdict in favor of the City. Reversed and remanded
for entry of a directed verdict in favor of the City of Miami.
4