St. Fort v. Post, Buckley, Schuh & Jernigan

902 So.2d 244

Mark Phillip ST. FORT, a Minor, by and through his Mother and Natural Guardian, Marie Lourdes ST. FORT, Emanual Pernier, a Minor, Priscille Pernier, a Minor, and Alexandra Pernier, a Minor, by and through their Mother and Natural Guardian, Margaret Pernier, Marie Lourdes St. Fort, Individually, Margaret Pernier, Individually, Dominique Auguste, Individually, Teddy St. Fort, Individually, and Vladimir Pierre-Louis, Individually, Appellants, v. POST, BUCKLEY, SCHUH & JERNIGAN, Appellee.

No. 4D03-3930.

District Court of Appeal of Florida, Fourth District.

May 18, 2005.

Adam Trop and Maximo Santiago of Grover, Weinstein & Trop, P.A., Miami Beach, for appellants.

Raymond L. Robinson and Myles A. Cochran of Robinson & Associates, P.A., Coral Gables, for appellee.

POLEN, J.

Mark Phillip St. Fort, et al., appeal a final summary judgment in favor of Post, Buckley, Schuh & Jernigan, Inc. ("Post Buckley"), and denial of rehearing in a negligence action. St. Fort argues that the trial court erred in holding that defendants were not liable because the action by another person in rear-ending the St. Fort vehicle constituted the active and efficient intervening cause for any alleged damages. We agree and reverse.

On November 30, 1990, at approximately 10:30 p.m., St. Fort and several other adults and children were passengers in a motor vehicle on the southbound Sheridan Street ramp to I-95 in Broward County. St. Fort alleged that the vehicle was forced to come to a sudden stop due to the dangerous condition of the access ramp. In particular, St. Fort alleged that the ramp "existed, and/or was maintained, in a hazardous condition, in that there was insufficient space for ingress/egress, insufficient visibility, insufficient stopping space, insufficient emergency access, and/or other improper/insufficient and dangerous circumstances." While the vehicle was stopped on the access ramp, a vehicle operated by Mason Fuchs rear-ended the St. Fort vehicle, allegedly as a result of the dangerous roadway conditions, and caused the St. Fort vehicle to collide with a retaining wall, causing its occupants serious, permanent bodily injuries.

Post Buckley and co-defendants, Florida Department of Transportation ("FDOT"), Archer Western Contractors, and Morrison Knudsen Engineers, were involved in a construction project on the section of I-95 where the accident occurred. Post Buckley was hired by Morrison Knudsen Engineers to provide on-site consulting, engineering, and inspection services ("C.E.I.") for the highway construction project at or near the subject on-ramp. Prior to the date of the accident, defendants had created a new on-ramp, altering the acceleration lane and merge area onto I-95. The new ramp was not constructed in compliance with FDOT specifications. The design plan called for a 400 foot long acceleration lane, but it was actually constructed to be zero feet. Additionally, the plan called for a 250 foot long merge area, but it was actually constructed closer to 200 feet. Defendants admitted that the way the ramp existed at the time of the accident did not accord with the construction plan.

As Trooper Barry Radanof testified "the entire roadway was under construction, and there was no — the way the ramp dumps into that lane, the extreme right-hand outer lane, as we call it — the ramp just dumps into it. There's no merge lane there." Radanof also testified that there were two retaining walls dividing the approach ramp and the main lane of I-95 during construction, one wall on the ramp and one on the I-95 side. These walls could obstruct the driver's view on the ramp looking out the left window trying to find a break to enter I-95 traffic.

At the time of the accident, Vladimir Pierre-Louis was driving the St. Fort vehicle. He testified in deposition that there was not much light where he was driving up the ramp approaching I-95, and he could barely see where he was going with his headlights on. There were no overhead street lights. He did not recall seeing any lighting poles, nor any reflectors along the roadway. Fuchs, the driver of vehicle that rear-ended the St. Fort vehicle, also testified in deposition that there was absolutely no lighting on the access ramp. Fuchs testified that, although there were lights on I-95, the ramp area was "pitch black." Fuchs was unable to see that there was a car in front of him until he was only eight to ten feet away. In contrast, Trooper Radanof testified in deposition that "it was dark, but it was lit with the regular street lighting on the interstate."

Pierre-Louis did not see any barricades with flashing lights near Sheridan Street and the southbound ramp or any signs indicating that there was construction work ahead. He also did not see any type of signs indicating that he was to merge with I-95 traffic. Fuchs and Radanof also testified that they did not recall seeing any warning signs posted.

As Pierre-Louis came up the ramp and approached I-95, he could see that he did not have enough room to enter traffic: "I didn't have enough room. Usually in most intersections I would drive in, they would give me a good 20, 50 yards to merge with the flow of traffic. I did not have that." The traffic on I-95 was "pretty busy." He was forced to stop and look for a gap in traffic to enter. While still on the ramp, he brought the car to a complete stop for 15 to 20 seconds. Pierre-Louis then saw a gap in the moving traffic and was preparing to move out into the main line of traffic when he was rear-ended by Fuchs' vehicle. Pierre-Louis's vehicle was in first gear, he had removed his right foot from the brake pedal and put it on the gas pedal, and his left foot was coming off the clutch when he was rear-ended. Fuchs, who was accelerating to enter traffic, was traveling at approximately 55 miles an hour.

Under the "Contributing Causes-Road" section of Trooper Radanof's report, he listed the code for "Road under repair/construction." Radanof stated in his deposition:

If [Fuchs' vehicle] had a merge lane at that point and was accelerating, it possibly wouldn't have happened. Not to say [Fuchs' vehicle] couldn't have accelerated up to a hundred miles per hour and rear-ended him. Crazier things have happened. But I don't think this particular crash would have happened if there was a merge lane.

St. Fort, et al. sued defendants for negligence, alleging that they owed a duty of reasonable care to plaintiffs to avoid creating dangerous conditions and/or to warn of any dangerous conditions at or near the intersection, and to further make safe any and all dangerous conditions of which they knew or should have known. St. Fort alleged that defendants breached said duty though all or some of the following:

(a) Failing to provide adequate warnings or any warnings;

(b) Designing a dangerous/hazardous condition;

(c) Creating a dangerous/hazardous condition;

(d) Failing to provide adequate lighting;

(e) Failing to provide sufficient ingress and/or egress;

(f) Failing to provide any lighting;

(g) Failing to provide sufficient emergency access;

(h) Failing to provide adequate stopping distance;

(i) Failing to provide sufficient merging distance; & /or

(j) Was otherwise negligent.

St. Fort offered expert testimony in the form of the deposition of Ralph Aaronberg, a consulting engineer who has performed traffic engineering design work. His opinion of the case included the following:

(1) That the acceleration lane and merge area for [the ramp] at the time of the accident was insufficient;

(2) That that was a contributing cause to this accident, that caused the car in which the Plaintiffs were riding in to come to a stop, as it would have to do if there were to be any southbound traffic on I-95, so that it could move right into I-95, whereas if you were to have an acceleration lane and merge area, you do not have to bring the vehicle to a stop;

(3) That that condition existed for some period of time and it was causing this problem for some period of time as it is reflected by prior accidents that were occurring;

(4) That the area as it existed was not on the original design plans;

(5) That the contractor and CEI would both have responsibility to keep track of accidents that were occurring in that area, and take actions as required to be able to alleviate the hazardous conditions that had been created; and that should have taken place well before this accident occurred;

(6) In my opinion, as soon as you have an area where people are stopping on a merge area, then that alone is enough to tell you that you have a hazardous condition.

Aaronberg opined that the primary cause of the accident was the hazardous condition of the roadway, not Fuchs' rear-ending the St. Fort vehicle:

Aaronberg: In my opinion, the primary cause of the accident would be the hazardous manner in which the roadway existed at the time that the accident occurred, meaning the lack of an appropriate merge lane for traffic coming from Sheridan Street, forcing vehicles on Sheridan Street to come to a stop, forcing people that were entering from Sheridan onto southbound I-95 to come to a stop in an area where it is very hazardous to bring a vehicle to a stop. That, I believe, is the primary cause of the accident.

Defense: Mr. Aaronberg, it's not your opinion that the primary cause of this accident was Mason Fuchs' rear-ending of the plaintiff's vehicle?

Aaronberg: No, because Mr. Fuchs wouldn't have rear-ended the vehicle if the vehicle had not been there to rear-end.

Defendants moved for summary judgment on the grounds that Fuchs' rear-ending of the St. Fort vehicle constituted the active and efficient intervening cause for any alleged damages. The trial court entered final summary judgment in favor of all defendants, specifically relying on Clark v. L. & A. Contracting Co., 730 So.2d 288 (Fla. 3rd DCA 1998), and Department of Transportation v. Anglin, 502 So.2d 896 (Fla.1987). The court denied St. Fort's motion for...