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DEFENDANT''S Alleged failure of homeowners association to safely maintain property - Bicyclist strikes pothole - Dental injuries - Metacarpal fracture - Claimed traumatic brain injury - Liability only.

Miami-Dade County

This action arose when the 60-year-old male plaintiff struck a pothole while riding his bicycle and fell from the bike. The plaintiff claimed the accident was caused by the negligence of the defendant homeowner’s association in failing to maintain the premises in a safe condition. The defendant denied that the pothole in question was located on its property. The city of Coral Gables and Miami-Dade County were also named as defendants but were dismissed from the case prior to trial. The development’s property management company and the security company were named as third-party defendants, based on the theory that they breached a duty to detect, report or repair the pothole in question if it was on the defendant’s property. The case was bifurcated and tried on liability only.

The plaintiff testified he was riding his bicycle in ________ with his 12-year-old son in the Coral Gables housing development where they resided. The plaintiff testified he was making a right turn from a bicycle path onto Cocoplum Road heading into the housing development when the front wheel of his bicycle struck a pothole causing him to fly flew forward over the handlebars.

The plaintiff’s road construction expert opined that the defendant was negligent in allowing the pothole to develop and remain in the common area of the development. The plaintiff contended that the hole was up to four inches deep. The plaintiff’s human factors expert testified that the pothole was in a shadow and would not have been readily apparent to the plaintiff.

The defendant asserted that the location of the pothole was outside the homeowner’s association land. The defense contended that photographs clearly showed the defect was not on the association’s property. A representative of the defendant testified that the pothole was in a road which was not maintained by the association. The defendant contended that the City of Coral Gables had previously responded to reports of potholes in the same road. The defense also argued that the pothole was open and obvious and was a common road condition.

The defendant’s road design/accident reconstruction expert opined that there was nothing defective regarding the design of the road and that the defect was easily avoidable by the plaintiff.

After a nine-day bifurcated trial, the jury found the defendant did not have control of the area where the accident occurred. The defendant’s motion for anticipated costs and attorney fees in excess of $________, based on a proposal for settlement, is pending. The plaintiff has filed notice of a pro se appeal.

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