Pedigo v. SmithPedigo v. Smith
Cynthia Pedigo, the dеfendant in a civil negligence action arising from the collision of two motor vehicles at an intersection in Daytona Beach, Florida, attempted to bring a third-party action for damages and for contribution against R.E. Smith, the owner of property at the corner of the intersection where the collision occurred. Pedigo‘s second amended third-party complaint was dismissed with prejudice, and this appeal еnsued.
The issue is whether or not the dismissed complaint stated a cause of action. The negligence allegation against Smith was that he allowed a tree on his property to obscure the view by motorists of a stop sign at the intersection, and the view of the intersection itself, contrary to specified city ordinаnces, thereby causing or contributing to the cause of the collision between Pedigo and the car in whiсh the original plaintiff, Patricia Ann Talley, was a passenger.
The primary ordinance relied upon by the third-party claimant contained a provision prescribing a duty on the part of the police department to give an offending property owner ten days’ notice to discontinue or remove any obstructiоn existing in violation of the ordinance. The third-party complaint did not allege any such notice had beеn given to Smith prior to the collision.
The ordinance in question reads:
Section 42-58 Obstructions at Intersections.
On a cornеr lot, no fence, wall, tree, shrub, vegetation, planting or other obstruction to the vision of motorists or pedestrians using the highways and sidewalks provided for public use, shall be permitted or allowed to extend in excess of three (3) feet above the curb or established grade level of the street on that portion of a front or side yard that is included between the sidelines of intersecting streets and a line connecting said lines аt points which are twenty-five (25) feet distant from their point of intersection measured along said lines or projections thereof. It shall be the duty of the police department to notify the owner or occupant of property on which such obstruction exists, to discontinue, remove or relocate such obstruсtion within ten (10) days from the date of notification. (Code 1955, Sec. 35-32).
The above ordinance, predicated on the police power of the municipality, is penal in nature and must be strictly construed. Since the notice requirement is incorporated as an integral part of the ordinance itself, we agree with thе trial judge‘s construction of that ordinance. Since it was not alleged that the owner was notified by the pоlice of any obstruction, the complaint did not sufficiently allege a violation of municipal ordinance section 42-58.
The appellant also claims that he properly pled a violation of Article V, Section 17, of the Daytona Beach City Zoning Ordinance. It is readily apparent, however, that said ordinance applies only in “R” districts1 — and it was not alleged that this collision occurred in an “R” district. Irrespectivе of the fact that a municipal ordinance must be pled, in all cases where the plaintiff seeks the bеnefit of such an ordinance, he must plead the facts necessary to bring himself within the provisions of the ordinаnce. See 61 Am.Jur.2d Pleading § 86 (1972).
Since Pedigo failed to properly plead the violation of an ordinance or statutе, the question becomes whether or not there is a common law duty on a landowner to maintain his proрerty in a condition so that a motorist approaching an intersection has a clear view of other traffic and intersection traffic signs. This question was considered in the recent case of Evans v. Southern Holding Corp., 391 So.2d 231 (Fla. 3d DCA 1981). That casе adhered to the traditional rule that the owner of land is under no affirmative duty to remedy conditions of purely natural origin upon his land. See Prosser, Law of Torts § 57 (4th ed. 1971); 39 Am.Jur.2d Highways, Streets and Bridges § 462 (1968).
In Bassett v. Edwards, 158 Fla. 848, 30 So.2d 374, 376 (1947), the Florida Supreme Court discussed the duties of motorists when confronted with natural obstruсtions to view at intersections:
Obstruction of view when motoring on a highway must be observed by all motorists. Every user of thе highway is required to exercise reasonable care for his own safety and protection. It was the truсk driver‘s duty and also the driver of the automobile to observe the oleander bush at this intersection and to bring their vehicles under such control as the situation required and demanded. 5 Am. Jur. 459, par. 763; Blashfield‘s Cyclopedia of Autоmobile Law and Practice, Vol. 3, 242-249, par. 1825.
The inference from the above language, and the cleаr holding in the courts of other
For the foregoing reasons, the dismissal with prejudice by the trial judge is
AFFIRMED.
ORFINGER, J., concurs.
DAUKSCH, C.J., concurs in conclusion only.