HomeMy WebLinkAbout1403Despite this crit_icism and despite the difficulty in applying the
special duty doctrine, we believe we must apply the law as
announced in Modlirt to this case. Commercial Carrier rejected
Modlin stating: "Consequently, we conclude that Modlin and its
ancestry and progeny have no continuing vitality subsequent to the
effective date of Section 768.28." This accident, however,
occurred beEore the effective date of the statute.
Plaintiffs showed that defendant, Milton Davis, as
City Manager, supervised the building and construction of the
park. The complaint alleged a duty to construct the facility in a
safe manner and a duty to warn the public of hazards. Plaintiffs
arque that because the evidence showed the City Manager knew of
logs in the park, he had a duty to put up warning signs which
might have effected defendant and other motorcyclists.
We hold that no special duty has been demonstrated
here. In Modlin, plaintiff's wife was killed when a mezzanine
collapsed upon her while she was shopping in a store. Modlin held
that a city buildinq inspector owed no greater duty to the patron
of a retail establishment than he owed to the public at large.
Thus, the building inspector was held not personally liable to
plaintiff and the City, in turn, was not liable under the doctrine
of respondeat superior. In the case below, defendant, City Mana-
ger, was certainly not shown to have any greater duty than demon-
strated in Modlin. We, thus, conclude that a directed verdicti
should have been entered in favor of the defendant City Manager.
We also note that the other individual defendant in this case was
exonerated by the jury of any negligence. This defendant was a
Police Officer and was at the park on the day in question. Plain-
tiff asserted that this Pelice Officer should have taken steps to
protect him and that his failure to do so constituted negligence.
It would seem that the duty owed by the Police Officer under the
circumstances of this case was more direct and "special" than that
owed by the City Manager. There was evidence that the Officer had
-3-
_ 3
- -r_:.z ~:<:.- . _._ -, ~
dGOK JtJU P!GE~~~
. - -- = ~=.
~~ _..;~~, ~r.~