Continental Ins. Co. v. Belflower, 355 So. 2d 840

Continental Ins. Co. v. Belflower

355 So. 2d 840 | Fla. Dist. Ct. App. | 1978

Dissenting Opinion

BOOTH, Judge,

dissenting.

A jury question was presented as to whether the road where the accident occurred was a county road under Florida *841Statute § 95.361. The evidence presented here was substantially similar to that in Pasco County v. Johnson, 67 So.2d 639 (Fla.1953) wherein the court held that the county’s cleaning up of bush, stumps and trees and filling up of holes and ruts in an unpaved rural road satisfies the statutory requirements of a presumed dedication. Accord, Lovey v. Escambia County, 141 So.2d 761 (1st DCA 1962), findings of trial court and testimony quoted at 141 So.2d 770-771.

A closer question, but still one for the jury, was presented as to the county’s negligence in failing to warn of, or to remove, the hidden concrete abutment, an unexpected and unnatural obstacle, immediately adjacent to the edge of the narrow roadway.

I would affirm the judgment below.

Lead Opinion

SMITH, Acting Chief Judge.

Volusia County and its insurer appeal from a money judgment entered on a jury verdict that appellee Belflower was damaged to the extent of $50,000 when he was injured as his car struck a concrete slab off the surface of a narrow dirt road near Edgewater. The judgment was for $10,000, reflecting the jury’s finding that Belflower’s negligence was 80 percent responsible for the accident and the County’s negligence was 20 percent responsible.

The evidence was insufficient to submit to the jury the issue of the County’s asserted negligence in failing to clear obstacles from the grassy area adjoining the road and in failing to post signs warning of such obstacles. There is no evidence of formal dedication of the road. Belflower’s case rests entirely on Section 95.361, Florida Statutes (1975), which presumes dedication from county maintenance and repair “continuously and uninterruptedly for four years.” There was evidence that a county commissioner caused the road to be cut many years ago and that twice since then other commissioners caused shell to be placed on portions of the road for the convenience of hunters. But there was an entire absence of evidence that even these desultory activities occurred within a four year period, or that the county performed any inspection or repair “continuously and uninterruptedly for four years” on what otherwise must be regarded as a private road. The judgment will be reversed and the cause remanded for entry of judgment for appellants.

REVERSED.

ERVIN, J., concurs. BOOTH, J., dissents.