       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

       SEMINOLE LAKES HOMEOWNER’S ASSOCIATION, INC.,
                     a Florida corporation,
                           Appellant,

                                      v.

        SHELDON ESNARD and MARY ANN ESNARD, his wife,
                         Appellees.

                              No. 4D18-15

                          [December 19, 2018]

   Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cymonie S. Rowe, Judge; L.T. Case No. 2014-CA-005525
(AO).

   Thomas L. Hunker of Cole, Scott & Kissane, P.A., Plantation, and
Lissette Gonzalez of Cole, Scott & Kissane, P.A., Miami, for appellant.

   Andrew A. Harris and Nichole J. Segal of Burlington & Rockenbach,
P.A., West Palm Beach, and Joseph R. Fields, Jr. of Fields Legal, LLC, West
Palm Beach, for appellees.

KANNER, DANIEL J., Associate Judge.

   Seminole Lakes Homeowner’s Association, Inc. appeals a final
judgment entered after jury trial verdict in favor of Sheldon and Mary
Esnard. Seminole Lakes contends that the trial court erred by not
granting its motion for directed verdict on the issue of proximate
causation. Seminole Lakes also appeals on two other grounds. We agree
and reverse on the issue of proximate causation rendering the other two
issues moot.

   This case arose out of a car accident between the Esnards and Dedric
Upshur which occurred inside the Seminole Lakes community. Upshur
rear-ended the Esnards while they were stopped waiting for two trucks to
pass between two parked cars on the street. The Esnards sought damages
against Seminole Lakes on the basis that Seminole Lakes was negligent
and proximately caused the Esnards’ damages by permitting homeowners
and their guests to park on both sides of the community’s streets contrary
to its governing documents. The jury found that Seminole Lakes’
negligence was a legal cause of the Esnards damages and apportioned
fault with 30% to Seminole Lakes and 70% to Upshur.

   Seminole Lakes is a community of single family homes and townhomes
located in the Village of Royal Palm Beach, Florida. At the time of the
accident, the Esnards were renting a townhome in Seminole Lakes. The
Association’s restrictive covenants provide that owners and guests shall
park in their driveways or garages or designated common area spaces. In
2009, the board realized that there was a severe parking problem within
the community and made the decision to allow overnight street parking,
despite the fact that the Village of Royal Palm Beach Code prohibits any
street parking which interferes with the flow traffic. As a result, vehicles
parked on both sides of the street in various sections of the community.
Occasionally, this circumstance would only allow one car to pass between
two parked vehicles.

   One evening in 2013, Mr. and Mrs. Esnard were returning home to their
residence where they encountered such a circumstance. While they waited
behind a truck for another truck to pass between two cars, they were rear-
ended by Upshur. The Esnards’ car was totaled and Mr. Esnard suffered
injuries as a result of the accident.

    The case proceeded to trial. At the close of the Esnards’ case, Seminole
Lakes moved for a directed verdict maintaining that Seminole Lakes’
allowing cars to park on the street was not a proximate cause of the
accident.

   The issue of proximate causation is generally an issue for the trier of
fact; however, there are instances where the issue should be decided as a
matter of law. The Supreme Court of Florida held in Nat’l Airlines, Inc. v.
Edwards, 336 So. 2d 545, 547 (Fla. 1976) (quoting Kwoka v. Campbell,
296 So. 2d 629, 631 (Fla. 3d DCA 1974)): “The question of proximate
cause is one for the court where there is an active and efficient intervening
cause.”

   The Second District Court of Appeal further explained the issue of
proximate causation in Mathews v. Williford, 318 So. 2d 480, 481-83 (Fla.
2d DCA 1975):

      The law is well settled in this state that a remote condition or
      conduct which furnishes only the occasion for someone else’s
      supervening negligence is not a proximate cause of the result
      of the subsequent negligence.

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      ***

      In short, conduct prior to an injury or death is not legally
      significant in an action for damages like this, unless it is a
      legal or proximate cause of the injury or death-as opposed to
      a cause of the remote conditions or occasion for the later
      negligence.

   “[H]arm is ‘proximate’ in a legal sense if prudent human foresight would
lead one to expect that similar harm is likely to be substantially caused by
the specific act or omission in question.” McCain v. Fla. Power Corp., 593
So. 2d 500, 503 (Fla. 1992). Obviously, the facts of every case are different
and must be analyzed in their entirety.

   In Pope v. Cruise Boat Co., Inc., 380 So. 2d 1151 (Fla. 3d DCA 1980),
the pedestrian plaintiff chose to walk on the shoulder of a county street
running in front of the defendant’s business. The plaintiff “came upon a
boat on a trailer and two pickup trucks parked perpendicular to the street
on the shoulder, but not protruding into the street.” Id. at 1152. The
plaintiff was struck by a truck when she stepped off the shoulder into the
street in an attempt to go around the boat. Id. The plaintiff alleged that
the defendant breached its duty to maintain the premises in a reasonably
safe condition and that the issue of negligence should have been a
question for the jury. Id. The Third District Court of Appeal held that the
defendant’s conduct of permitting the parking condition was not a
proximate cause of the plaintiff’s injury because it merely furnished the
occasion for the plaintiff’s own negligence in stepping into oncoming
traffic, noting that the plaintiff “chose[] to walk the shoulder of the road
rather than the sidewalk on the other side of the same street.” Id. at 1152-
53. The Third District Court later elaborated on its ruling in Stahl v. Metro.
Dade Cty., 438 So. 2d 14, 23 (Fla. 3d DCA 1983), explaining that the
accident in Pope was an unusual, unforeseeable event:

      [I]t was not a reasonably foreseeable consequence of the
      defendant’s negligence that the plaintiff pedestrian would
      react in such an unusual manner. The plaintiff pedestrian
      plainly had no momentum problem as she travelled on foot
      alongside the road and could have easily come to a complete
      stop upon encountering the subject vehicles on the shoulder;
      in fact, that is what one, as a matter of law, would reasonably
      expect. Her decision thereafter to step onto the road without
      looking, whereupon she was hit by a car, was an unexpected,
      highly unusual event, and therefore an unforeseeable

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      intervening cause for which the defendant was not
      responsible. There was causation-in-fact in that case, but the
      result was considered too extraordinary and too unforeseeable
      to be considered a proximate cause of the defendant’s
      negligence.

   The same analysis applies to the present case. While the vehicles
parked on the side of the street caused traffic to slow or even stop, it cannot
be said that this was a proximate cause of the Esnards’ damages. It is
within common experience while driving on the streets of Florida to
encounter traffic that is slowed or stopped for any number of reasons. The
law requires every driver to maintain a safe distance from the traffic in
front of them to avoid rear-end collisions.

   In this case, the evidence showed that the Esnards had been stopped
for a period of time before Upshur collided with them. The parking
situation was patently obvious to any and all drivers using the streets in
Seminole Lakes. There was no evidence that the Esnards were forced to
make a sudden emergency stop or otherwise take evasive action to avoid
the parked vehicles. This court sees no difference between this situation
and a car being stopped behind a city bus waiting to pick up passengers.
While Seminole Lakes’ failure to enforce the parking rules was a cause-in-
fact of the accident, its negligence only furnished the occasion for Upshur’s
negligence.

    In light of all of the evidence, including the lack of any prior incidents
of this nature, and the general conditions of this residential neighborhood,
we hold that Upshur’s negligence was not reasonably foreseeable by
Seminole Lakes, and the failure to enforce its parking rules was not the
proximate cause of the Esnards’ injuries. See Las Olas Holding Co. v.
Demella, 228 So. 3d 97 (Fla. 4th DCA 2017).

  Accordingly, we reverse the trial court’s denial of Seminole Lakes’
motion for directed verdict, and remand for entry of a judgment in favor of
Seminole Lakes.

   Reversed and Remanded.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.


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