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City of Miami v. Facunda S. Navarro, Case No. 3D14-3038 (3rd DCA)

In Navarro, the Third District reversed a judgment entered in favor of the plaintiff and against the City of Miami following a jury trial. The case arose after the plaintiff tripped and fell over a raised brick while walking on a brick-paved sidewalk in Miami. To maintain a prima facie case of negligence against the City, the plaintiff had to prove either than the City had actual knowledge of the sidewalk defect or that the City had constructive knowledge through some evidence that the sidewalk defect existed long enough that the City should have known of it. There was no evidence of actual knowledge. The plaintiff instead relied upon a color photograph of the raised brick. No testimony was given as to the length of time it would take for a paver to raise up in the manner shown in the photograph.

The Third District found that the issue of whether a photograph alone is legally sufficient to show negligence through the passage of time was addressed by the Florida Supreme Court inHannewacker v. City of Jacksonville Beach, where the court stated:

“If the photograph portrays a condition that has some distinguishing feature which clearly shows the defect has existed for a long period of time, it may afford the jury a basis to infer that a significant period of time has passed. If the photograph is ambiguous on this point and what is shown makes it questionable whether a significant period has passed, the jury would necessarily be required to indulge in speculation to determine the duration of the condition. In such a case the photograph without live testimony is insufficient. This is no different than if a witness testified to the condition of a defect at the time of an accident and there are no distinguishing features or other testimony to indicate its duration. In such instance the trial judge is entitled to direct a verdict on the question of constructive notice. Since that is the law in effect for testimonial evidence, it should be the same when the witness is a photograph. But there are photographs which may constitute tangible evidence of the scene of an accident sufficient to raise an inference as to the length of time the defect was present. While this depends entirely on the condition sought to be depicted, the photograph must clearly demonstrate that a significant period of time has passed.”

The Third District found that the photograph provided by the plaintiff in this case did not satisfy the requirements of Hannewacker and therefore was insufficient. While the photograph showed a raised brick paver, nothing contained in the photograph itself demonstrated the passage of time relative to the raising of the brick. In the absence of any other evidence of the issue, the trial court should have directed a verdict in favor of the City.

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