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Florida Third DCA rules that whether City of Coral Gables’ created a dangerous condition in placement of palm trees in street median was an issue of material fact for the jury

On July 10, 2019, in Bejarano v. City of Coral Gables, No, 3D17-2636, the Florida Third DCA reversed a summary judgment entered by the trial court for the defense in a premises liability case involving alleged negligence by the City of Coral Gables in the placement of palm trees in a roadway median.  The plaintiff’s northbound motorcycle struck a southbound SUV making a left turn from a roadway that had a median planted with palm trees supported by wooden bases.  The SUV driver claimed that his line of sight was obstructed by a palm tree and its base and the City was consequently added as a defendant in the case based on the allegedly negligent design and placement of the tree and its support. The City moved for summary judgment on two grounds.  First, it alleged that the placement of the palm trees was a planning-level decision for which a municipal entity enjoys sovereign immunity.  See  Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979) (discretionary, judgmental, planning-level decisions by government entities are immune from suit).  Second, it claimed that the placement did not create a dangerous condition that it knew or should have known about. The trial court found in the City’s favor on both issues and granted the motion for summary judgment.  On appeal, the Third DCA found it unnecessary to reach the first issue (whether this was planning-level decision or an operational decision).  The Court noted that based on the Florida Supreme Court’s ruling 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 about, the City is liable and sovereign immunity does not apply.  Based on the proffered testimony of a traffic engineer retained as an expert witness by the plaintiff, the Third DCA concluded that there was a genuine issue of material fact in dispute as to whether the palm tree and its base created a dangerous condition.