Eric "Rick" Ellsley of the Ellsley Law Firm in Plantation. Courtesy photo.

Eric "Rick" Ellsley of the Ellsley Law Firm in Plantation negotiated a $5.95 million settlement with a Florida landscape gardening company over claims unruly hedges on an Oakland Park roadway median caused a crash that left his client with permanent neck, back and arm injuries.

The case demonstrates the importance of preserving evidence and getting experts to the scene as soon as possible—particularly for a visual obstruction lawsuit—as it hinged on photographs and information Ellsley gathered immediately after the accident.

"Personally go to the scene. Personally meet with witnesses and interview [them]. Draw up affidavits based upon what they tell you," Ellsley said. "People quickly forget what they see and hear, so it is important to secure that testimony very early on."

Ellsley's client, 26-year-old motorcyclist Alexander Ramos was driving in the far left lane of Oakland Park Boulevard at about 10 p.m. March 13, 2018, when driver Sharon McLeod made a left turn in front of Ramos, according to plaintiff counsel. A police report said McLeod was doing a U-turn, but hadn't noticed Ramos.

Ramos sued the driver, the city of Oakland Park, the state, and a private landscaping company in May 2019, alleging McLeod's view was hindered by a nearly 3-foot hedge that should have been—under the Florida Department of Transportation Standard Index No. 546 regulation—no more than 2 feet tall.

Ellsley's investigation revealed the Florida Department of Transportation owned the median, and was responsible for its upkeep. But it had transferred that responsibility to the city of Oakland Park, which paid defendant Landscape Service Professionals Inc. to maintain it.

The landscaping company denied that the hedge had anything to do with the crash. It instead accused the plaintiff of negligence, and the driver of carelessness.

Median on Oakland Park Boulevard at Northeast 10th. Courtesy photo.

'Factual challenges'

Ellsley's biggest obstacle lay in proving that the landscaping was to blame.

A statement from driver McLeod made that task more difficult. The driver told one officer she hadn't noticed Ramos, but mentioned to another officer that she "could have beaten him across the road," implying the possibility she had seen the plaintiff. The statement was undeniable, as McLeod's interview was recorded on an officer's body cam.

Eye witness evidence also suggested that Ramos, a downtown valet, had been speeding, though not excessively.

McLeod's insurer United Auto Insurance Co. paid its maximum liability limit of $10,000 a few weeks after the crash, while the landscaper's insurer initially agreed to pay $10,000 in medical bills. But it took several months of litigation to resolve the lawsuit with the landscapers and the government.

Ellsley recruited an accident-reconstruction engineer, who found that the height of the hedge would have obstructed both drivers' ability to see ahead of them.

Police also found McLeod at fault for failing to yield to Ramos, who had the right of way, and their report mentioned that the median bushes could have been a factor.

"We built a strong case of liability, despite some of the factual challenges," Ellsley said. "And Mr. Ramos was a likable plaintiff who would present very well in a courtroom."

Ellsley said rehabilitation hasn't been easy for his client, who had to have surgery on his neck and back, and now has limited functionality in his left arm.

Kory Ickler of Garrison, Yount, Forte & Mulcahy in Tampa represented Landscape Service Professionals. He deferred to his client's insurer, the Hanover Insurance Co., which did not immediately respond to a request for comment.

Derek Barba of Wicker Smith in Coral Gables represented driver McLeod, and did not respond to a request for comment by deadline.

Ellsley said the case spotlights a common danger on South Florida public roadways because landscapers rarely measure shrubs and hedges after finishing their work, and many popular landscaping features tend to grow quickly.

"The landscaping companies that contract with the various governmental entities are consistently violating the state codes regarding maximum height of median landscaping," he said. "Not surprisingly, crashes occur because the drivers can't see each other very clearly."

Ellsley handled a similar lawsuit in 2012 involving a crash near Hollywood, in which a cab driver claimed he didn't see an oncoming scooter because of a row of hedges in a median maintained by the Seminole Tribe of Florida. That lawsuit settled for $4 million, and the Seminoles later replaced the bushes with grass.

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The best practice for gardeners operating anywhere near roads, in Ellsley's opinion, is to follow the state transportation department's Florida Highway Landscape Guide.

"Decision makers, landscape architects and urban planners should choose grass and not trees, hedges, bushes, or plants for the medians because grass is a much safer alternative for motorists," Ellsley said.

Landscape Services's insurance company has paid the settlement, which was just shy of its $6 million policy limit. The agreement releases all government entities from liability.

Broward Circuit Judge John Bowman is now likely to dismiss the case.

 

Case: Alexander Ramos v. Landscape Service Professionals

Case No.: CACE19010987

Description: Auto negligence

Filing date: May 21, 2019

Settlement date: Jan. 6, 2020

Judge: Broward Circuit Judge John B. Bowman

Plaintiffs attorney: Eric "Rick" Ellsley, The Ellsley Law Firm, Plantation

Defense attorneys: Kory Ickler, Garrison, Yount, Forte & Mulcahy, Tampa

Settlement amount: $5.95 million

 

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