final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Antonio
Marin, Judge. Lower Tribunal No. 15-23014
Novoseletsky, for appellant.
Angones, McClure & Garcia, P.A., and Luis F. Estrada, for
SALTER, FERNANDEZ and LINDSEY, JJ.
Bejarano ("Bejarano") appeals the final summary
judgment entered by the trial court in favor of the City of
Coral Gables. Concluding that there are genuine issues of
material fact that preclude the entry of summary judgment, we
case concerns a vehicular accident that occurred on April 26,
2012 at the intersection of Ponce de Leon Boulevard and
Navarre Avenue in Coral Gables, between motorcyclist,
Bejarano, and the driver of a sports utility vehicle
("SUV"), Ricky Vento ("Vento"). Prior to
the accident, Bejarano was traveling northbound on Ponce de
Leon in the left lane. As Bejarano approached Navarre Ave.,
Bejarano testified that he saw an SUV slowly traveling
southbound on Ponce de Leon. The accident occurred when Vento
was in the process of making a left turn onto Navarre Ave
when Bejarano, on the approaching motorcycle, crashed into
the right front fender of the SUV resulting in Bejarano
incurring serious injury. Bejarano testified that he was
unable to stop in time to avoid the crash. Vento testified
that his view of oncoming traffic was obstructed by recently
planted palm trees with wooden supports at their base located
at the end of the median. Bejarano brought suit against
multiple defendants, including Vento and the City of Coral
Gables ("City"). This appeal concerns the suit
against the City only.
sued the City claiming, among other things, that the City was
negligent in the design and placement of the palm trees with
their wooden supports because the placement of the trees at
the end of the center medians, together with the wooden
supports, created a dangerous condition by obstructing a
driver's view of oncoming traffic when making a turn from
Ponce de Leon Boulevard onto a side street. Bejarano further
claimed that the placement of the trees and of the wooden
supports on the trees is an operational decision not subject
to the protection of sovereign immunity. The City argued that
it was a planning decision and that it did not create a
dangerous condition that it knew or should have known. On
this basis, the City filed a motion for summary judgment on
the grounds of sovereign immunity.
November 2, 2017, the trial court granted the motion for
summary judgment finding that there are no genuine issues of
material fact because the City of Coral Gables did not know,
nor should it have known, that the planting of the palm trees
with the wooden supports created a dangerous condition and
that the City of Coral Gables enjoyed absolute sovereign
immunity from suit based on Bejarano's claim. This appeal
standard of review on orders granting final summary judgment
is de novo. Siegel v. Tower Hill Signature Ins.
Co., 225 So.3d 974, 976 (Fla. 3d DCA 2017). "[W]e
must view the record and reasonable inferences therefrom in a
light most favorable to the nonmoving party, and any doubt
concerning the existence of a disputed issue of material fact
must be resolved against the moving party." Davis v.
Baez, 208 So.3d 747, 750-51 (Fla. 3d DCA 2016).
review of the record, we find there are genuine issues of
material fact as to whether the City created a dangerous
condition that it knew or should have known, given the
conflicting evidence submitted by the parties. According to
the Florida Supreme Court in Bailey Drainage Dist. v.
Stark, 526 So.2d 678 (Fla. 1988), even if this was a
planning decision, if the City created a dangerous condition
that the City knew or should have known, the City is liable
and sovereign immunity does not apply. Id. at 681
("[S]overeign immunity does not bar an action against a
governmental entity for rendering an intersection dangerous
by reason of obstructions to visibility if the danger is
hidden or presents a trap and the governmental entity has
knowledge of the danger but fails to warn motorists.").
submitted the affidavit of Miles Moss, a traffic engineer and
accident reconstructionist. After reviewing photos of the
site and visiting the site himself, Moss found that the palm
trees violated applicable line-of-sight visibility standards
and the conditions restricted Vento's view of
Bejarano's motorcycle as he was attempting to make the
left turn. On this basis, he concluded that the palm trees
and supports created a dangerous condition obstructing the
view of drivers making left turns at the intersection and the
City knew or should have known of the danger.
support of its position that no dangerous condition existed,
the City submitted an unsworn, one page email by Jeff Cohen,
Assistant Chief of the Miami-Dade County Traffic Engineering
Division, generally stating that there were no "clear
zone" violations in the area. The City further submitted
thirteen accident reports, of which the City claimed that no
one involved in the accidents stated that the palm trees
contributed to their accidents. Upon review of the accident
reports, Bajarano found that the accident reports actually
established the contrary. Bajarano was able to obtain and
submit to the trial court affidavits from three ...