Whenever an event occurs that leads to the serious injury or death of anyone, you will see no one claims responsibility over the instrumentality or location where the incident occurred. In fact, if you pick up your automobile insurance policy and look at all the things that are included with your policy will be section referenced “what to do after an accident.”

1. Never admit liability or fault;
2. Notify your insurance company immediately;
3. Do not speak to the injured party or apologize;
4. Never admit responsibility for the collision.

The lawyers for the defendants will argue it was “an unavoidable accident or a freak accident.” You will hear the insurance lawyers claim that this specific type of “harm” was not foreseeable.

Whether it was the absence of sufficient lightening or the failure to supervise the traffic conditions on a private roadway or gated community, it will be claimed that the person who omitted to do something or failed to warn, will claims that “we had no legal duty” to act or remedy the condition or to warn.” If the warning signs were not existent or inadequate in sign or visibility, it was just an event that  never could be expected  or was just a freak occurrence.

In civil litigation lack of duty is a legal escape hatch party alleged to be liable will seek to take to exit the litigation.

Landowners, tenants, occupiers of the property often hire property managers and security personnel who act as the eyes and ears of the landowners. The landowners have certain non-delegable duties that cannot be passed on to the shoulders of others. The task can be assigned or delegated to a third party but the failure of the property manager or security personnel to discharge the duty owed by the landowner to other third-party invitees on the property, remains the obligation of the landowner even if the party who was contracted to perform the job fails to do so..

In one Florida case, the injured party was legally walking on a roadway when she tripped and fell over a water valve cover (the valve) that was protruding in the roadway, causing her to sustain injuries.

The valve was on Captiva Drive in an area used by pedestrians. Defendant Lee County owns Captiva Drive and Defendant Island Water owns the valve and the pipes underneath it.

Cantalupo alleged that Island Water owed her a duty to exercise reasonable care for her safety. She further alleged that Island Water breached that duty by negligently failing to maintain the valve in the roadway, failing to inspect the valve to determine whether the protruding valve constituted a hazard to pedestrians, failing to warn Cantalupo of the danger of the protruding valve, and failing to correct the unreasonably dangerous condition of the valve.

In addition, Cantalupo alleged that Island Water knew or should have known of this foreseeably dangerous condition but failed to take any precautions to alleviate the dangerous condition or warn of it.

At the time of Cantalupo’s accident, the asphalt surrounding the valve had separated from around the valve. It appeared that the asphalt had sunk such that the asphalt was no longer flush with the valve, causing the valve to protrude above the asphalt. Approximately three months after the accident, Island Water had repairs made to the asphalt around the valve to bring the asphalt flush with the valve.

Here, the parties seem to dispute on appeal whether the issue of Island Water’s control of the roadway was controverted. Island Water acknowledged the ability to control the roadway under circumstances when its equipment caused damage or needed repairs. And the trial court found, “It is uncontroverted that [Island Water] has the ability to access and affect the road around the valve if such is required in order to repair or maintain the valve.” But the issue that Lee County raises is whether Island Water had the ability to control the roadway around the valve absent the need for repairs to Island Water’s equipment.

“As a general rule, utilities have ‘a duty to exercise care, both in the location or construction and in the use and maintenance of its lines,’ poles, and equipment.” Webb v. Glades Elec. Coop., Inc., 521 So. 2d 258, 259 (Fla. 2d DCA 1988) (quoting Padgett v. W. Fla. Elec. Coop., Inc., 417 So. 2d 764, 766 (Fla. 1st DCA 1982)). Applying the McCain analysis, when Island Water decided to operate utilities in a public roadway, it assumed a common law duty to maintain its valves to allow the public to safely navigate on or around them. On the date of the accident, the valve was sticking up one and a half to two inches above the asphalt. It was reasonably foreseeable that someone would trip over a valve that was protruding above the roadway.

Even if the valve protruded due to the erosion of the asphalt around it, Island Water is not absolved of its responsibility to keep the public safe from a known tripping hazard. For instance, in City of Tampa v. Jorda, 445 So. 2d 699, 700 (Fla. 2d DCA 1984), this court determined that the trial court properly submitted to the jury the issue of the negligence of both the city and the landowner plaintiff. There, the plaintiff fell when she stepped on the city’s water meter box in her front yard. The meter box had become tilted because some of the sand under the meter box had fallen away. The meter box gave way when the plaintiff stepped on it, thus causing her to fall. Id. Similarly, Island Water’s valve became a hazard when it protruded above the pavement when the asphalt around it eroded or settled. See Utter v. Jacksonville Utils. Mgmt., Inc., 363 So. 2d 829, 829 (Fla. 1st DCA 1978) (reversing dismissal of amended complaint when it alleged a water utility’s “negligent maintenance of its water meter and the creation or failure to repair a hazardous hole surrounding it”); City of Niceville v. Hardy, 160 So. 2d 535, 537 (Fla. 1st DCA 1964) (stating in a negligence case that the plaintiff’s theory of recovery for a dangerous and defective condition was sound when the plaintiff’s foot slid into a water meter box owned by the city and the meter box, due to soil erosion, had become tilted so that the lid would not stay on the box).

Section 90.407 provides as follows:

Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.

“It is well settled that a public or private entity which owns, operates, or controls a property, including a roadway, owes a duty to maintain that property, and a corresponding duty to warn of and correct dangerous conditions thereon.” Pollock v. Fla. Dept. of Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004). In Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So. 3d 120, 122 (Fla. 2d DCA 2015), this court also recognized that a party who exercises control over some premises has a corresponding duty and reversed a summary judgment in favor of the defendant.

There, the fact that an employee of the defendant removed the pipe that caused the injury after the accident was a factor in determining whether the defendant exercised control of the premises. Id. at 123. In considering all the evidence, this court determined that issues of material fact existed regarding whether the defendant exercised control of the area where the plaintiff was injured.

The appellate court reversed the final summary judgment in favor of Island Water and the order of December 16, 2015, that sets forth findings on the motion for reconsideration regarding subsequent remedial measures. The appellate court also reversed the order in limine of December 1, 2015, as to the ruling on subsequent remedial measures and the legal duty of Island Water. We remand for further proceedings in the trial court.