Miracle Mile in Coral Gables, Miami, Florida. Photo: Wangkun Jia/Shutterstock.com Miracle Mile in Coral Gables, Miami, Florida. Photo: Wangkun Jia/Shutterstock.com

A Miami lawyer used filings by the City of Coral Gables to her client's advantage in a successful challenge before a Florida appellate court.

Attorney Ellen Novoseletsky secured a victory in the Third District Court of Appeal, which reversed and remanded a Miami-Dade Circuit Court order granting Coral Gables' motion for final summary judgment against 76 year-old Antonio Bejarano.

She relied on a city filing showing 13 accidents in a location that she'd been arguing was unsafe and succeeded in persuading the court to hold the city responsible for her client's car crash at the same site.

Coral Gables was the defendant in a 2015 lawsuit filed by Novoseletsky's client, Bejarano, who claimed the city created dangerous driving conditions by placing palm trees with prominent wooden support beams at the end of median strips.

Bejarano alleged the greenery obscured driver's views of oncoming traffic at the intersection of Ponce de Leon Boulevard and Navarre Avenue in Coral Gables, the same site where an SUV struck him while he riding his motorcycle in April 2012.

Novoseletsky said Bejarano has more than $300,000 in medical bills following a monthlong hospital stay after the accident. She told the Daily Business Review the teenage driver who struck her client could not see Bejarano because of the palm trees' placement.

“Traffic engineer Miles Moss submitted an affidavit … basically establishing this is a dangerous condition,” Novoseletsky said. “Once those motorists are trying to make those left turns, they can't see the traffic coming from the right, because these trees have very thick trunks … and they block the view.”

She described the situation as a hidden trap.

“This boy was a minor,” Novoseletsky said. “He said, 'I could not see, so I had to peek out into the street … and was essentially stuck.' ”

Read the opinion:

Moss' affidavit concluded the palm trees violated applicable line-of-sight visibility standards, supporting Bejarano's and Novoseletsky's assertion that Coral Gables was negligent in landscaping the roadway. Novoseletsky argued the city should have known the trees created a dangerous situation and was therefore not protected under sovereign immunity.

The city responded by filing an affidavit from a Miami-Dade County Traffic Engineering Division official stating there were no “clear zone” violations in the area. But it also mentioned 13 accident reports, documenting crashes at the intersection. Although the city claimed the documents supported its claim that the palm trees played no role in the prior incidents, further investigation by Novoseletsky showed otherwise. After contacting all of the parties listed in the reports, she found three had complained that their view was obstructed in their affidavits.

“Thirteen accidents in a year and you'd think this would've been a problem,” Novoseletsky quipped.

Attorney Luis Estrada,who represented Coral Gables in the Third DCA proceedings, did not return requests for comment by press time.

The trial court granted the city's motion for summary judgment in November 2017, reasoning the defendant planted the trees as a planning decision and “did not know, nor should it have known, that the planting of the palm trees with the wooden supports created a dangerous condition,” according to Wednesday's opinion.

But the appellate panel disagreed and reversed the summary judgment.

“Bejarano was able to obtain and submit to the trial court affidavits from three of the motorists listed in the accident reports who claimed that the palm trees in the median obstructed their view and caused their accidents on Ponce de Leon,” the opinion said. “We find there are genuine issues of material fact as to whether [Coral Gables] created a dangerous condition that it knew or should have known, given the conflicting evidence submitted by the parties.”

The opinion added, “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.”

Novoseletsky said she and her client were prepared to enter mediation at the time of the trial court proceedings and intend to give it another go now that the case is headed back to the lower court.

“We're going to try that again, and if not, we'll have to notice the case for trial and go forward,” she said. “For our case going forward I think that we have the evidence to support it was a dangerous condition.”

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