Preview
Filing # 97511230 E-Filed 10/18/2019 12:11:56 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
LAMAR MITCHELL, GENERAL JURISDICTION DIVISION
Plaintiff, CASE NO. 19-8931 CA 01(02)
v.
MIAMI-DADE COUNTY,
Defendants.
MIAMI-DADE COUNTY’S AMENDED MOTION FOR SUMMARY
JUDGMENT AND INCORPORATED MEMORANDUM OF LAW
Defendant, MIAMI-DADE COUNTY (the “County”), pursuant to Florida Rule of
Civil Procedure 1.510, hereby files this Amended Motion for Summary Judgment in response
to Plaintiff?s Amended Complaint and as grounds thereof states as follows:
INTRODUCTION
This is a negligence action against the County. Plaintiff, Lamar Mitchell (“Plaintiff”)
claims he was injured when he tripped and fell on a “metal pipe and/or rod” which “was
concealed in the grass” in an area near the “Miami-Dade Transit bus station located on the
corner of US-1 and SW 244» Street” in Miami-Dade County, Florida. Complaint § 7-9.
Plaintiff claims that the County was or should have been aware of this condition. /d. § 10. The
County does not dispute that it is responsible for the maintenance of the area in question. But
in order for Plaintiff “to establish a prima facie claim for negligence, a plaintiff must show that
defendant had either actual or constructive notice of the alleged negligent condition.” Miami-
Dade County v. Herndon, 776 So.2d 360 (Fla. 3d DCA 2001); citing Grier v. Metro. Dade
County, 660 So. 2d 273, 275 (Fla. 3d DCA 1995) (For a municipality to be liable for injuries
for failure to exercise ordinary care to keep its public ways in a reasonably safe condition, the
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY
Case No. 19-8931 CA 01 (02)
municipality must have known or had reasonable cause to have known, of the defective
condition a sufficient length of time prior to the accident in order to enable the municipality to
make the necessary repairs). Itis undisputed that the County did not have actual notice of the
alleged condition. See, Affidavit of Miguel Alfonso attached as Ex. A and Answers to
Interrogatories #15 attached as Ex C. It is also undisputed that Plaintiff has no idea how long
the alleged dangerous condition existed. See, excerpts of Plaintiff’s deposition Attached as
Exhibit B p. 33 lines 5-16 and Answers to Interrogatories # 14. Asa result, Plaintiffis unable
to prove actual or constructive knowledge on the part of the County. Since Plaintiff is unable
to establish that the County knew or should have known of the alleged dangerous condition at
issue, the County is entitled to summary judgment.
FACTUAL BACKGROUND
Plaintiff claims that on February 13, 2018 he was walking towards a Miami-Dade bus
station located on the corner of US-1 and SW 244' Street when he tripped on a metal rod or
pipe that was protruding from the ground. Complaint { 7. He claims that the pipe or rod was
“concealed in the grass.” Complaint J 8. As a result, Plaintiff claim he fell and injured himself.
Complaint { 8-9. The County does not deny that it is responsible for the maintenance of the
area in question. However, prior to Plaintiff’s alleged fall into that area, the County was not
aware of the existence of the concealed rod or pipe in the grass. Ex. A. Plaintiff himself admits
that he does not know whether the County had actual knowledge of the concealed condition
nor how long the alleged dangerous condition existed. Ex. B p. 33 lines 5-16; and C questions
14 and 15. Plaintiff himself, said he had been in this area many times before and never seen
the condition before. Ex. B at p. 23, lines 13-18; p. 26, lines 21-23 p. 27, lines1 1-15.
Page 2 of 6
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY
Case No. 19-8931 CA 01 (02)
ARGUMENT
Under Florida Rule of Civil Procedure Rule 1.510, summary judgment shall be entered
in favor of a moving party if the pleadings and summary judgment evidence on file show that
there is no genuine issue as to any material fact and the moving party is entitled to judgment
asa matter of law. A material factis a fact which is essential to the resolution of alegal question
raised in the case. Fla. Dep't of Env. Reg. v. C.P. Dev., Inc., 512 So. 2d 258 (Fla. 1st DCA
1987). A summary judgment motion triggers evidentiary burdens on both the moving and
nonmoving parties. Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1088 (Fla. 3d DCA 2011).
The moving party has the initial burden of demonstrating the nonexistence of any genuine issue
of material fact, while the non-movant must provide counterevidence sufficient to reveal a
genuine issue. /d. The non-movant “must point to evidence, not allegations” revealing a
genuine issue. /d. at 1091
A. The County did not have actual notice
In order for Plaintiff to establish a prima facie claim for negligence, Plaintiff must show
that the County had actual or constructive notice of the alleged negligent condition. Herndon,
776 So.2d at 360 citing Grier, 660 So. 2d at 275. Here, it is undisputed that the County did not
have actual notice of the condition alleged in the Complaint. Ex. A and C question 15. Thus,
Plaintiff is unable to show or establish that the County had actual notice of the alleged
dangerous condition.
B. The County did not have constructive notice
Constructive notice is shown by presenting evidence that the condition existed for such
a length of time that in the exercise of ordinary care the defendant should have known about
it. Wilson-Greene v. City of Miami, 208 So. 3d 1271, 1274-75 (Fla. 3d DCA 2017). A
Page 3 of 6
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY
Case No. 19-8931 CA 01 (02)
landowner “is not an insurer of the safety of persons on the property, nor is the owner strictly
liable, or liable per se without fault, for injuries resulting from dangerous conditions on owned
property.” Haynesy. Lloyd, 533 So. 2d 944,946 (5th DCA 1988). The landowner “has no legal
duty to constantly know of all existing dangerous conditions on the property and there is no
legal evidentiary presumption of such knowledge. /d. Instead, Plaintiffhas the burden “to plead
and prove facts from which the trier of fact can reasonably infer constructive knowledge.” /d.
In order to do so, Plaintiff must allege and prove “that the dangerous condition existed for a
sufficient length of time so that the defendant should have known of it.” /d.
Here, Plaintiff is unable to prove constructive knowledge because he does not know
how long the condition existed. Ex. B p. 33 lines 5-16 and C question 14. Without knowing
how long the alleged dangerous condition existed, Plaintiff is unable to show that it existed
long enough for the County to have constructive knowledge. Because Plaintiff is unable to
establish that the County had actual or constructive knowledge of the alleged dangerous
condition, the County is entitled to summary judgment as a matter of law
C. It would be unreasonable to expect the County to inspect hundreds or
thousands of miles of grassy areas looking for hidden defects
In addition to the fact that Plaintiff is unable to show actual or constructive knowledge,
this case is analogous to Grier v. Metropolitan Dade County, where the Third District Court
of Appeal found thatit would be unreasonable to expect Miami-Dade County to haveto inspect
hundreds, if not thousands of miles of streets looking for quarter inch defects. Grier v.
Metropolitan Dade County,660 So. 2d 273 (Fla. 3rd DCA 1995). In Grier, Plaintiff had tripped
on a quarter inch nail that was sticking out in the middle of the street. /d. There, the Court hold
that such a defect as the proverbial needle in a haystack. /d. The Court also relied on the
Page 4 of 6
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY
Case No. 19-8931 CA 01 (02)
testimony of an engineer from the County who testified that it would have been very difficult
to notice the condition at issue without a very intentional and purposeful act. /d. at 275. A very
similar situation is presentin the instant case. Here, based on the testimony of Plaintiff himself,
he had been in this area many times before and never noticed the condition before. Ex. B at p.
23, lines 13-18; p. 26, lines 21- p. 27, line 1, 11-15. In other words, even if the condition had
existed for some time, the fact that Plaintiff was not able to notice it himself after having
walked by it many times, means that it was very hard to notice this condition without a very
intentional or purposeful act. As the Court stated in Grier, it would be unreasonable to expect
Miami-Dade County to have to inspect hundreds, if notthousands of miles of grassy areas near
bus stops looking for defects that Plaintiff himself was unable to notice even though he himself
testified that he had walked by so many times.
WHEREFORE MIAMI-DADE COUNTY respectfully requests that its Motion for
Summary Judgment be GRANTED, and for such other relief as this Court deems just
Respectfully submitted,
ABIGAIL PRICE-WILLIAMS
Miami-Dade County Attorney
Attorney for Defendant Miami-Dade County
Stephen P. Clark Center, Suite 2810
111 Northwest First Street
Miami, Florida 33128-1993
By: /s/Daniel Frastai
Daniel Frastai
Assistant County Attorney
Florida Bar Number 0666041
Telephone: (305) 375-5480
Fax: (305) 375-5634
Email: Frastai@miamidade.gov
Jeane.Neal@miamidade. gov
Page 5 of 6
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY
Case No. 19-8931 CA 01 (02)
CERTIFICATE OF SERVICE
I CERTIFY that a copy hereof has been furnished by E-MAIL generated by the Florida
Courts E-Filing Portal on October 18, 2019 to: Andres Hermida, Esq., Morgan & Morgan,
P.A., 703 Waterford Way, Suite 1050, Miami, FL 33126,
ahermida@forthepeople.com;cdelaosa@forthepeople.com
{s/Daniel Frastai
Assistant County Attorney
Page 6 of 6
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151EXHIBIT AAFFIDAVIT OF MIGUEL ALFONSO
STATE OF FLORIDA }
ss:
COUNTY OF MIAMI-DADE }
COMES NOW AFFIANT MIGUEL ALFONSO who, after being duly cautioned and sworn
according to the Law, deposes and says:
1. [am over the age of 18, employed as a Safety Officer in the Office of Safety and Security
within the Department of Transportation & Public Works of Miami-Dade County, and
have been so employed at all pertinent times.
2. Ican testify regarding my review of records within the Department of Transportation
& Public Works of Miami-Dade County, my experience and training, as well as personal
knowledge.
3. Miami-Dade County did not receive any complaints or reports of any pieces of rebar at
or near any grassy area near any bus stop near the intersection of US-1 and SW 244%
Street in Miami-Dade County, Florida in the 2 years preceding February 13, 2018.
FURTHER AFFIANT SAYETH NAUGHT.
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Sworn to (or affirmed) and subscribed before me this
by AFFIANT.
Jf
Personally known \_ OR Produced Identification _. Type of Idehntification Produced:EXHIBIT B10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 23
Q. Thank you very much.
I am going to ask you questions now about the
laccident that we are here for today.
Do you recall the day of the accident?
A. 2008, February of 2008. No, forgive me. It
was 2017, February 13th I think. I think that is the
right one.
Q. Okay. Do you know what day of the week that
was?
A. No. I know it was on the 13th. I went to my
doctor, and when I stopped by to get my meat, that was
when it happened. I can't remember what day that was.
Q. And where did it happen?
A. It happened on US1 the side of Dixie Highway
lbetween 248 and 244. The accident happened on 244.
Q. Okay. Had you ever been to that area before?
A. Yes, I have been walking through there and
getting my groceries all the time.
Q. Okay. So you would go get you groceries?
A. Once a month.
Q. Where do you get your groceries at?
A. At the meat store right there between 248 and
244, Princeton Meat Store.
Q. Princeton Meat Store, okay. So were you
taking the bus; is that why you were in that area also?
Florida Legal Support
(786) 347-129210
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 26
No.
Had you been drinking that day?
No.
So you drank the day before?
No.
Were you on drugs the day before?
No.
pnp Po PpoO PF Oo >
Okay. So if you can describe to me how it is
that the accident happened, how it is that you tripped
land fell?
A. I left the meat store. I walked down the
sidewalk to the right side of the gate. So I get down
Ito the way that there is another bus stop going south,
lout I need to go north. So I have got to walk through
the path where the flea market is at and where the bus
Istop is at and where the grass is at.
I have got to walk through that to get to the
Inext bus stop. There is an opening there with grass,
Inothing but grass and concrete.
MR. FRASTAI: Okay.
A. So I had to walk through the grass to get to
the bus, and all the time that I have been going through
there I have never seen iron or nothing there. So,
evidently, I just was going to catch the bus. The bus
Iwas at the stop or he was getting ready to pull out by
Florida Legal Support
(786) 347-129210
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 27
that time. I'm about ready to get there, he was pulling
lout. So the next thing I know, I couldn't holler at the
lbus. My right foot hit steel and I fell flat on my
lbelly. And that's when all of the blood was around my
thing.
Q. I am going to go back and just make sure that
we get everything clear on what you said. So you have
ito cross this grassy area to get to the bus that you
were going to take?
A. Right.
Q. And you had walked across that grassy area
many times before?
A. Many times.
Q. And you had never noted anything on the floor?
A. Never.
Q. But do you look on the floor when you are
walking through grass?
A. Well, you always make sure that you look where
lyou are walking at.
Q. Okay. And you noticed while you were walking
through the grass that the bus that you were going to
take was about to leave?
A. Yes.
Q. So were you rushing then to get to that bus?
A. I was just walking home. I thought it was
Florida Legal Support
(786) 347-129210
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 33
Q. Okay. But you can't say it's one of these?
A. You fall and you are hurt and bleeding like
that, do you have time to search and see that rebar like
that? No, sir. But I know it's one of them rebars.
Q. Okay. Do you know how that rebar got to that
lpposition?
A. No, I don't.
Q. Do you know who put that rebar there?
A. No, I don't.
Q. Do you know how long that rebar was there?
A. I know the hurricane had been through there
Inot too long after that.
Q. Do you know how long that rebar was there?
A, No, sir, I don't.
Q. Do you know anyone who might know that?
A. No, sir.
Q. Okay. I am going to show you two more
Ipictures.
MR. FRASTAI: We will mark them as Composite
Exhibit 2.
(The photographs were marked as Defendant's
Composite Exhibit Number 2 for Identification.)
Q. In these two pictures -- if you can look at
these pictures and tell me if you recognize what is in
those pictures.
Florida Legal Support
(786) 347-1292EXHIBIT CIN THE CIRCUIT COURT OF THE 117
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2019-8931 CA 01 (02)
LAMAR MITCHELL,
Plaintiff,
vs.
MIAMI-DADE COUNTY,
Defendant.
i
PLAINTIFF'S VERIFIED ANSWERS TO DEFENDANT’S INTERROGATORIES
COMES NOW the Plaintiff, LAMAR MITCHELL, by and through the undersigned attorney, and
hereby gives notice of filing answers to the Defendant, MIAMI-DADE COUNTY’s, Interrogatories,
propounded on or about May 16, 2019, and that such answers have been returned to counsel for Defendant,
a
MIAMI-DADE COUNTY, on this j2° day of June, 2019.
[CERTIFICATE OF SERVICE ON FOLLOWING PAGE]CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished to all counsel of record via
Electronic Mail Served by the Florida E-Portal this [2 _ day of Dome 2019,
By:
A
An Hermida, Esquire
Florida Bar Number: 1010725
MORGAN & MORGAN, P.A.
Attorneys for Plaintiff
703 Waterford Way, Suite 1050
Miami, FL 33126
Telephone; 305-929-1901
Facsimile: 305-929-1944
AHermida@forthepeople.com
JJaime@forthepeople.com14.
Homestead Hospital
975 Baptist Way
Homestead, FL 33033
Cyst in back of my head
2015
Avelino Pinon, MD
941 N. Krome Avenue
Homestead, FL 33030
This has been my urologist since about 2014.
University of Miami Hospital
Operation for bladder and colon cancer
2008
Carlos Conrado, MD
151 NW 11" Street
Homestead, FL 33030
This has been my primary care provider since about 2006.
List the names and addresses of all persons who are believed or known by you, your
agents or attorneys to have any knowledge concerning any of the issues in this
lawsuit; and specify the subject matter about which the witness has knowledge.
ANSWER:
Myself.
My treating physicians as listed above.
Plaintiff reserves the right to amend this answer as discovery is ongoing.
Indicate how long the dangerous condition alleged in the Complaint existed.
ANSWER:
Unknown at this time. Discovery is ongoing.15. Indicate when the County received actual notice of the condition, who received the
notice, who provided it and when it was received.
ANSWER:
Unknown at this time. Discovery is ongoing.2019-06- :
06 Mt 16:22 0302 3052537559 >> MM P 4/5
State Of Florida
County Of Miami-Dade :
Before me on this day personally appeared Lamar Mitchell who, being du
sworn, states that foregoing answers are true and correct.
_ - Signature of Lamar Mitchell
ww
Swom to (or affirmed) and subscribed before me this Ne day of
mens AON by Lamar Mitchell.
Personally known OR Produced Identification x :
Type of Identification Produced: DUH M324- $20 -$3-C8l-0
Notary Public State of Florida +
Ny © Jasmeen Jaime o
Preview
Filing # 97511230 E-Filed 10/18/2019 12:11:56 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA LAMAR MITCHELL, GENERAL JURISDICTION DIVISION Plaintiff, CASE NO. 19-8931 CA 01(02) v. MIAMI-DADE COUNTY, Defendants. MIAMI-DADE COUNTY’S AMENDED MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW Defendant, MIAMI-DADE COUNTY (the “County”), pursuant to Florida Rule of Civil Procedure 1.510, hereby files this Amended Motion for Summary Judgment in response to Plaintiff?s Amended Complaint and as grounds thereof states as follows: INTRODUCTION This is a negligence action against the County. Plaintiff, Lamar Mitchell (“Plaintiff”) claims he was injured when he tripped and fell on a “metal pipe and/or rod” which “was concealed in the grass” in an area near the “Miami-Dade Transit bus station located on the corner of US-1 and SW 244» Street” in Miami-Dade County, Florida. Complaint § 7-9. Plaintiff claims that the County was or should have been aware of this condition. /d. § 10. The County does not dispute that it is responsible for the maintenance of the area in question. But in order for Plaintiff “to establish a prima facie claim for negligence, a plaintiff must show that defendant had either actual or constructive notice of the alleged negligent condition.” Miami- Dade County v. Herndon, 776 So.2d 360 (Fla. 3d DCA 2001); citing Grier v. Metro. Dade County, 660 So. 2d 273, 275 (Fla. 3d DCA 1995) (For a municipality to be liable for injuries for failure to exercise ordinary care to keep its public ways in a reasonably safe condition, the OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY Case No. 19-8931 CA 01 (02) municipality must have known or had reasonable cause to have known, of the defective condition a sufficient length of time prior to the accident in order to enable the municipality to make the necessary repairs). Itis undisputed that the County did not have actual notice of the alleged condition. See, Affidavit of Miguel Alfonso attached as Ex. A and Answers to Interrogatories #15 attached as Ex C. It is also undisputed that Plaintiff has no idea how long the alleged dangerous condition existed. See, excerpts of Plaintiff’s deposition Attached as Exhibit B p. 33 lines 5-16 and Answers to Interrogatories # 14. Asa result, Plaintiffis unable to prove actual or constructive knowledge on the part of the County. Since Plaintiff is unable to establish that the County knew or should have known of the alleged dangerous condition at issue, the County is entitled to summary judgment. FACTUAL BACKGROUND Plaintiff claims that on February 13, 2018 he was walking towards a Miami-Dade bus station located on the corner of US-1 and SW 244' Street when he tripped on a metal rod or pipe that was protruding from the ground. Complaint { 7. He claims that the pipe or rod was “concealed in the grass.” Complaint J 8. As a result, Plaintiff claim he fell and injured himself. Complaint { 8-9. The County does not deny that it is responsible for the maintenance of the area in question. However, prior to Plaintiff’s alleged fall into that area, the County was not aware of the existence of the concealed rod or pipe in the grass. Ex. A. Plaintiff himself admits that he does not know whether the County had actual knowledge of the concealed condition nor how long the alleged dangerous condition existed. Ex. B p. 33 lines 5-16; and C questions 14 and 15. Plaintiff himself, said he had been in this area many times before and never seen the condition before. Ex. B at p. 23, lines 13-18; p. 26, lines 21-23 p. 27, lines1 1-15. Page 2 of 6 OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY Case No. 19-8931 CA 01 (02) ARGUMENT Under Florida Rule of Civil Procedure Rule 1.510, summary judgment shall be entered in favor of a moving party if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and the moving party is entitled to judgment asa matter of law. A material factis a fact which is essential to the resolution of alegal question raised in the case. Fla. Dep't of Env. Reg. v. C.P. Dev., Inc., 512 So. 2d 258 (Fla. 1st DCA 1987). A summary judgment motion triggers evidentiary burdens on both the moving and nonmoving parties. Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1088 (Fla. 3d DCA 2011). The moving party has the initial burden of demonstrating the nonexistence of any genuine issue of material fact, while the non-movant must provide counterevidence sufficient to reveal a genuine issue. /d. The non-movant “must point to evidence, not allegations” revealing a genuine issue. /d. at 1091 A. The County did not have actual notice In order for Plaintiff to establish a prima facie claim for negligence, Plaintiff must show that the County had actual or constructive notice of the alleged negligent condition. Herndon, 776 So.2d at 360 citing Grier, 660 So. 2d at 275. Here, it is undisputed that the County did not have actual notice of the condition alleged in the Complaint. Ex. A and C question 15. Thus, Plaintiff is unable to show or establish that the County had actual notice of the alleged dangerous condition. B. The County did not have constructive notice Constructive notice is shown by presenting evidence that the condition existed for such a length of time that in the exercise of ordinary care the defendant should have known about it. Wilson-Greene v. City of Miami, 208 So. 3d 1271, 1274-75 (Fla. 3d DCA 2017). A Page 3 of 6 OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY Case No. 19-8931 CA 01 (02) landowner “is not an insurer of the safety of persons on the property, nor is the owner strictly liable, or liable per se without fault, for injuries resulting from dangerous conditions on owned property.” Haynesy. Lloyd, 533 So. 2d 944,946 (5th DCA 1988). The landowner “has no legal duty to constantly know of all existing dangerous conditions on the property and there is no legal evidentiary presumption of such knowledge. /d. Instead, Plaintiffhas the burden “to plead and prove facts from which the trier of fact can reasonably infer constructive knowledge.” /d. In order to do so, Plaintiff must allege and prove “that the dangerous condition existed for a sufficient length of time so that the defendant should have known of it.” /d. Here, Plaintiff is unable to prove constructive knowledge because he does not know how long the condition existed. Ex. B p. 33 lines 5-16 and C question 14. Without knowing how long the alleged dangerous condition existed, Plaintiff is unable to show that it existed long enough for the County to have constructive knowledge. Because Plaintiff is unable to establish that the County had actual or constructive knowledge of the alleged dangerous condition, the County is entitled to summary judgment as a matter of law C. It would be unreasonable to expect the County to inspect hundreds or thousands of miles of grassy areas looking for hidden defects In addition to the fact that Plaintiff is unable to show actual or constructive knowledge, this case is analogous to Grier v. Metropolitan Dade County, where the Third District Court of Appeal found thatit would be unreasonable to expect Miami-Dade County to haveto inspect hundreds, if not thousands of miles of streets looking for quarter inch defects. Grier v. Metropolitan Dade County,660 So. 2d 273 (Fla. 3rd DCA 1995). In Grier, Plaintiff had tripped on a quarter inch nail that was sticking out in the middle of the street. /d. There, the Court hold that such a defect as the proverbial needle in a haystack. /d. The Court also relied on the Page 4 of 6 OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY Case No. 19-8931 CA 01 (02) testimony of an engineer from the County who testified that it would have been very difficult to notice the condition at issue without a very intentional and purposeful act. /d. at 275. A very similar situation is presentin the instant case. Here, based on the testimony of Plaintiff himself, he had been in this area many times before and never noticed the condition before. Ex. B at p. 23, lines 13-18; p. 26, lines 21- p. 27, line 1, 11-15. In other words, even if the condition had existed for some time, the fact that Plaintiff was not able to notice it himself after having walked by it many times, means that it was very hard to notice this condition without a very intentional or purposeful act. As the Court stated in Grier, it would be unreasonable to expect Miami-Dade County to have to inspect hundreds, if notthousands of miles of grassy areas near bus stops looking for defects that Plaintiff himself was unable to notice even though he himself testified that he had walked by so many times. WHEREFORE MIAMI-DADE COUNTY respectfully requests that its Motion for Summary Judgment be GRANTED, and for such other relief as this Court deems just Respectfully submitted, ABIGAIL PRICE-WILLIAMS Miami-Dade County Attorney Attorney for Defendant Miami-Dade County Stephen P. Clark Center, Suite 2810 111 Northwest First Street Miami, Florida 33128-1993 By: /s/Daniel Frastai Daniel Frastai Assistant County Attorney Florida Bar Number 0666041 Telephone: (305) 375-5480 Fax: (305) 375-5634 Email: Frastai@miamidade.gov Jeane.Neal@miamidade. gov Page 5 of 6 OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE 305.375.5151LAMAR MITCHELL v. MIAMI-DADE COUNTY Case No. 19-8931 CA 01 (02) CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been furnished by E-MAIL generated by the Florida Courts E-Filing Portal on October 18, 2019 to: Andres Hermida, Esq., Morgan & Morgan, P.A., 703 Waterford Way, Suite 1050, Miami, FL 33126, ahermida@forthepeople.com;cdelaosa@forthepeople.com {s/Daniel Frastai Assistant County Attorney Page 6 of 6 OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE 305.375.5151EXHIBIT AAFFIDAVIT OF MIGUEL ALFONSO STATE OF FLORIDA } ss: COUNTY OF MIAMI-DADE } COMES NOW AFFIANT MIGUEL ALFONSO who, after being duly cautioned and sworn according to the Law, deposes and says: 1. [am over the age of 18, employed as a Safety Officer in the Office of Safety and Security within the Department of Transportation & Public Works of Miami-Dade County, and have been so employed at all pertinent times. 2. Ican testify regarding my review of records within the Department of Transportation & Public Works of Miami-Dade County, my experience and training, as well as personal knowledge. 3. Miami-Dade County did not receive any complaints or reports of any pieces of rebar at or near any grassy area near any bus stop near the intersection of US-1 and SW 244% Street in Miami-Dade County, Florida in the 2 years preceding February 13, 2018. FURTHER AFFIANT SAYETH NAUGHT. STATE OF FLORIDA COUNTY OF MIAMI-DADE Sworn to (or affirmed) and subscribed before me this by AFFIANT. Jf Personally known \_ OR Produced Identification _. Type of Idehntification Produced:EXHIBIT B10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 Q. Thank you very much. I am going to ask you questions now about the laccident that we are here for today. Do you recall the day of the accident? A. 2008, February of 2008. No, forgive me. It was 2017, February 13th I think. I think that is the right one. Q. Okay. Do you know what day of the week that was? A. No. I know it was on the 13th. I went to my doctor, and when I stopped by to get my meat, that was when it happened. I can't remember what day that was. Q. And where did it happen? A. It happened on US1 the side of Dixie Highway lbetween 248 and 244. The accident happened on 244. Q. Okay. Had you ever been to that area before? A. Yes, I have been walking through there and getting my groceries all the time. Q. Okay. So you would go get you groceries? A. Once a month. Q. Where do you get your groceries at? A. At the meat store right there between 248 and 244, Princeton Meat Store. Q. Princeton Meat Store, okay. So were you taking the bus; is that why you were in that area also? Florida Legal Support (786) 347-129210 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 26 No. Had you been drinking that day? No. So you drank the day before? No. Were you on drugs the day before? No. pnp Po PpoO PF Oo > Okay. So if you can describe to me how it is that the accident happened, how it is that you tripped land fell? A. I left the meat store. I walked down the sidewalk to the right side of the gate. So I get down Ito the way that there is another bus stop going south, lout I need to go north. So I have got to walk through the path where the flea market is at and where the bus Istop is at and where the grass is at. I have got to walk through that to get to the Inext bus stop. There is an opening there with grass, Inothing but grass and concrete. MR. FRASTAI: Okay. A. So I had to walk through the grass to get to the bus, and all the time that I have been going through there I have never seen iron or nothing there. So, evidently, I just was going to catch the bus. The bus Iwas at the stop or he was getting ready to pull out by Florida Legal Support (786) 347-129210 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 27 that time. I'm about ready to get there, he was pulling lout. So the next thing I know, I couldn't holler at the lbus. My right foot hit steel and I fell flat on my lbelly. And that's when all of the blood was around my thing. Q. I am going to go back and just make sure that we get everything clear on what you said. So you have ito cross this grassy area to get to the bus that you were going to take? A. Right. Q. And you had walked across that grassy area many times before? A. Many times. Q. And you had never noted anything on the floor? A. Never. Q. But do you look on the floor when you are walking through grass? A. Well, you always make sure that you look where lyou are walking at. Q. Okay. And you noticed while you were walking through the grass that the bus that you were going to take was about to leave? A. Yes. Q. So were you rushing then to get to that bus? A. I was just walking home. I thought it was Florida Legal Support (786) 347-129210 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 33 Q. Okay. But you can't say it's one of these? A. You fall and you are hurt and bleeding like that, do you have time to search and see that rebar like that? No, sir. But I know it's one of them rebars. Q. Okay. Do you know how that rebar got to that lpposition? A. No, I don't. Q. Do you know who put that rebar there? A. No, I don't. Q. Do you know how long that rebar was there? A. I know the hurricane had been through there Inot too long after that. Q. Do you know how long that rebar was there? A, No, sir, I don't. Q. Do you know anyone who might know that? A. No, sir. Q. Okay. I am going to show you two more Ipictures. MR. FRASTAI: We will mark them as Composite Exhibit 2. (The photographs were marked as Defendant's Composite Exhibit Number 2 for Identification.) Q. In these two pictures -- if you can look at these pictures and tell me if you recognize what is in those pictures. Florida Legal Support (786) 347-1292EXHIBIT CIN THE CIRCUIT COURT OF THE 117 JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO: 2019-8931 CA 01 (02) LAMAR MITCHELL, Plaintiff, vs. MIAMI-DADE COUNTY, Defendant. i PLAINTIFF'S VERIFIED ANSWERS TO DEFENDANT’S INTERROGATORIES COMES NOW the Plaintiff, LAMAR MITCHELL, by and through the undersigned attorney, and hereby gives notice of filing answers to the Defendant, MIAMI-DADE COUNTY’s, Interrogatories, propounded on or about May 16, 2019, and that such answers have been returned to counsel for Defendant, a MIAMI-DADE COUNTY, on this j2° day of June, 2019. [CERTIFICATE OF SERVICE ON FOLLOWING PAGE]CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to all counsel of record via Electronic Mail Served by the Florida E-Portal this [2 _ day of Dome 2019, By: A An Hermida, Esquire Florida Bar Number: 1010725 MORGAN & MORGAN, P.A. Attorneys for Plaintiff 703 Waterford Way, Suite 1050 Miami, FL 33126 Telephone; 305-929-1901 Facsimile: 305-929-1944 AHermida@forthepeople.com JJaime@forthepeople.com14. Homestead Hospital 975 Baptist Way Homestead, FL 33033 Cyst in back of my head 2015 Avelino Pinon, MD 941 N. Krome Avenue Homestead, FL 33030 This has been my urologist since about 2014. University of Miami Hospital Operation for bladder and colon cancer 2008 Carlos Conrado, MD 151 NW 11" Street Homestead, FL 33030 This has been my primary care provider since about 2006. List the names and addresses of all persons who are believed or known by you, your agents or attorneys to have any knowledge concerning any of the issues in this lawsuit; and specify the subject matter about which the witness has knowledge. ANSWER: Myself. My treating physicians as listed above. Plaintiff reserves the right to amend this answer as discovery is ongoing. Indicate how long the dangerous condition alleged in the Complaint existed. ANSWER: Unknown at this time. Discovery is ongoing.15. Indicate when the County received actual notice of the condition, who received the notice, who provided it and when it was received. ANSWER: Unknown at this time. Discovery is ongoing.2019-06- : 06 Mt 16:22 0302 3052537559 >> MM P 4/5 State Of Florida County Of Miami-Dade : Before me on this day personally appeared Lamar Mitchell who, being du sworn, states that foregoing answers are true and correct. _ - Signature of Lamar Mitchell ww Swom to (or affirmed) and subscribed before me this Ne day of mens AON by Lamar Mitchell. Personally known OR Produced Identification x : Type of Identification Produced: DUH M324- $20 -$3-C8l-0 Notary Public State of Florida + Ny © Jasmeen Jaime o