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Otero v. Gomez – Florida Bicycle Accident Lawsuit Remanded

Florida’s 3rd District Court of Appeal recently reversed an earlier judgment by a trial court that prevented a bicycle accident victim from proceeding with his case against a property owner.
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In Otero v. Gomez, the appellate court found the trial court had improperly used an untimely-filed motion in limine to effectively serve as a summary judgment in favor of the defendant. This procedural flaw will allow the plaintiff another chance to bring his case.

Cape Coral bicycle accident lawyers recognize this case as an example of how those injured in traffic crashes may have more options with regard to litigation than simply pursuing the driver and his insurer.

This is an important reminder, particularly for cyclists, given the Lee County Metropolitan Planning Organization’s recent data release indicating 112 bicycle crash injuries just so far this year in the county. In total last year, there were 175, a figure we’re unfortunately on track to surpass.

This case was brought against a property owner, whose land was adjacent to the intersection where the crash occurred. According to court documents, the cyclist said his view was obstructed by a wall located at the edge of the defendant’s property line. As he approached the intersection and entered the crosswalk, he did not see the vehicle crossing into the intersection until it was too late. He was struck by the vehicle and sustained serious injuries.

We don’t know if the cyclist sued the driver or if the driver was even found at-fault for the crash. What we do know is that, according to the plaintiff, the wall violated standards set forth by the Florida Department of Transportation, as well as county ordinances. The structure was apparently erected by a developer several years ago, and had been altered by the previous owner, who allegedly failed to obtain the proper permitting before completing those alterations.

Even though the property owner may not have erected the wall, the plaintiff asserted he had a duty to recognize it as a potentially dangerous condition to nearby pedestrians, cyclists and motorists, and to address the problem.

The plaintiff sought to present the expert witness testimony of a traffic expert, who posited the wall obstructed the cyclist’s line-of-sight, and further violated FDOT standards and county ordinances.

Prior to trial, the defendant filed a motion in limine to exclude this testimony, saying it wasn’t relevant because he owed no duty of care to the plaintiff on the basis of case law established in the 2007 case of Williams v. Davis. Four days after filing that motion, the defendant filed a motion for summary judgment, again relying on the Williams case. He asserted that because the wall on his property didn’t extend into the public right-of-way, he owed no duty of care to the cyclist.

The court didn’t rule on the summary judgment request. However, just a few days before trial, the defendant amended his previous motion in limine to ask for the exclusion of all evidence indicating the wall violated FDOT standards. Again, he relied on Williams.

The trial court granted this motion, in effect granting summary judgment to the defendant. Upon appeal, the appellate court ruled this procedurally improper, as the defendant was required to file such a motion at least 20 days in advance of a hearing on the issue. No such hearing was held, as the motion was heard after voir dire had begun.

The case has been remanded for further proceedings.

The issue of landowner liability for traffic accidents in Florida is one the court has wrestled with for some time. Currently, commercial landowners have a duty to maintain their premises in a way that permits safe ingress, egress and use of surrounding sidewalks and roadways. Additionally, they must maintain both natural and artificial conditions in order to satisfy their duty to protect the general public.

The 2001 Florida Supreme Court decision in Whitt v. Silverman held that conditions on a commercial landowner’s property that result in injury or damages off the premises need to be evaluated based on the established principles of negligence – even if those conditions are natural (such as foliage that overhangs the property and obstructs one’s view).

However, residential landowners are typically held to a lesser standard, per the Davis decision. Though there may be exceptions, liability is generally limited to situations where a dangerous condition on the property encroaches on the public right-of-way or extends beyond the boundaries of the property.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:
Otero v. Gomez, July 30, 2014, Florida’s Third District Court of Appeal
More Blog Entries:
Winter v. State Farm – Insurance Firms Must Write Clear Policies, July 15, 2014, Cape Coral Bicycle Accident Lawyer Blog