|
Barrish v. State of Florida DOT, City of N. Miami, Sixth Avenue Properties Inc., and State Farm Fire and Casualty Ins. Co., 509 So2d 340 (1987). A pedestrian was injured after being struck by a car. The ped was walking in the street because overgrown foliage blocked the sidewalk. Summary judgment for defendant, and plaintiff appealed. Affirmed. From the concurring opinion: "I concur ... because the case is factually indistinguishable from Pope v. Cruise Boats Co. ... But the case is also factually similar to Stahl v. Metropolitan Dade County ... where we reversed a summary judgment for the defendant. In Stahl the young victim was injured when he left a bicycle path to avoid an obstruction and was struck by a passing automobile. The difference between this case and Stahl is that the young victim in Stahl rode a bicycle whereas the victim here was a pedestrian.
"It appears then that the liability of a landowner, who negligently obstructs a sidewalk forcing the user to detour onto a highway where she is struck by a passing automobile, may turn on the user's method of locomotion. If the detour is made by a bicyclist there may be a proximate cause relationship, but if the detour is made by a pedestrian there is no proximate cause relationship as a matter of law. The rationale, I suppose, is that a pedestrian who is forced onto the highway has a greater ability to extricate herself from the peril of an oncoming automobile than has a bicyclist. I cannot subscribe to the 'mode of locomotion' theory as adequately distinguishing the cases. Either Pope or Stahl is incorrect." |
|
