ILIANA WHITT, as Personal Representative of the Estate of ILIA FOTINOV, deceased and YORDANKA FOTINOVA, individually, VS. JEAN SIMONEAU and IGNACIO URBIETA and IGNACIO URBIETA, JR., d/b/a OCEAN AMOCO
Defendant’s Attorney: MICHAEL P. RUDD and NICHOLAS REISING
This wrongful death and personal injury lawsuit arose from a February 26, 1997 accident involving an automobile and two pedestrians. On said date at about 6:41 pm, a vehicle driven by Jean Simoneau struck a husband and wife who were walking on a sidewalk as the vehicle exited an Amoco gas station owned by clients Ignacio Urbieta and Ignacio Urbieta, Jr. When Mr. Simoneau started his turn and was crossing over the sidewalk that ran across the exit to the gas station, he hit both pedestrians with the right front of his vehicle. As a result of this accident, Ilia Fotinov suffered fatal injuries and Yordanka Fotinov allegedly suffered personal injuries. The Plaintiffs’ alleged that foliage on our clients’ property prevented Mr. Simoneau from seeing the Fotinovs walking on the sidewalk and prevented the Fotinovs from seeing the Mr. Simoneau’s vehicle as he exited the gas station. The Plaintiffs’ Expert testified that the plants and bushes on the edge of Amoco’s property created a visual obstruction that was the substantial cause of the accident. He also testified that this foliage violated the Dade County Landscaping Ordinance that requires foliage within ten feet of the edge of a driveway leading to a public right of way not to exceed two and one-half feet in height. Mr. Fotinov was a 73 year-old tourist from Bulgaria who died from head injuries the day following the subject accident. He was survived by his wife and two daughters. Mrs. Fotinova’s personal injury claim was settled prior to trial and the wrongful death claim went to the jury. The Plaintiffs’ lawsuit against Mr. Simoneau, was settled on the third day of the five-day trial.
It should be noted that Summary Judgment was initially granted by the trial court in the clients’ favor. The Plaintiffs appealed and appellate counsel handled the appeal. The Florida Supreme Court, in a landmark decision, overruled the trial court and held that premises owners could be liable when it was reasonably foreseeable that natural conditions on their premises could create visual obstructions to motorists and pedestrians traveling on adjacent public rights of way. At trial, the case was vigorously defended on liability, arguing that the accident was caused by the negligence of the driver and pedestrians only, and that the foliage did not cause or contribute to the occurrence of the accident. It was also argued that it was not reasonably foreseeable that the foliage on our clients’ premises would or could cause injury to persons walking on the sidewalk adjacent to the premises. At trial the Plaintiffs’ counsel asked the jury for damages exceeding $1,000,000. The jury returned a verdict for the Defendants.