Trial to focus on landscaping
By SUSAN THURSTON
© St. Petersburg Times, published March 11, 2001
HUNTER'S GREEN -- Debra Jackson drove through the intersection countless times. But one time she will never forget.
Traffic was heavy that evening four years ago. As usual, she had to wait to turn left into the Hunter's Green subdivision in New Tampa.
She said she never saw the pickup speeding toward her on Bruce B. Downs Boulevard. Instead, she saw bushes and trees.
The cars collided in the intersection, killing her 11-year-old daughter and permanently injuring her then-7-year-old daughter.
A jury convicted the pickup driver of drunken driving, and he was sentenced to up to 16 years in prison.
Now, the family says others should share the blame. They argue the developer and the community association were responsible for the shrubbery in the median that blocked her view. They filed a civil lawsuit in Hillsborough Circuit Court seeking millions to cover their daughter's medical costs. A jury trial is set to begin Monday and could last three to four weeks.
Henry Valenzuela, an attorney for the Jacksons, called the intersection a booby trap and said the landscaping looked like a wall of foliage at the time of the crash. Debra and her husband, Tom Jackson, a columnist for the Tampa Tribune, allege that Hunter's Green improperly planted the shrubbery that led to the accident.
Markborough Florida and the Hunter's Green Community Association say they aren't to blame. The county, which owns the median, approved the developer's landscaping plans and later inspected the work.
The lawsuit raises questions facing many new suburban communities: How far should neighborhoods go to make road medians more attractive? And does such landscaping make streets more dangerous?
Opinions vary on who should take charge of landscaping. Some people say it's the government's job. Government officials say building roads is their top priority.
All agree, however, that safety should come first.
'It changed the fabric of their beings'
The Jacksons filed suit in February 1998 against six defendants, and reached resolutions with four. They settled with the landscaping firms that planted and maintained the plants for an undisclosed cash amount. They also settled with the insurance company for the driver of the pickup, Harold Vann of Lutz. Last month, the Jacksons dismissed their action against the landscape designer, who says the finished median didn't match his plans. Now, he plans to testify for the family.
The Jacksons are seeking enough money to cover the lifelong medical costs of their surviving daughter, Elizabeth, an estimated $10-million, Valenzuela said. They also want justice for their daughter Katherine, who died in the Feb. 6, 1997, crash.
"It didn't just change the course of their lives," said Valenzuela, who advised his clients not to be interviewed for this story. "It changed the fabric of their beings."
Now 11, Elizabeth functions like a 6-month-old and requires round-the-clock care. Her mother tends to her needs during the day. A nurse keeps watch at night.
Elizabeth could live well into adulthood, but her condition isn't likely to improve.
She can't walk, talk or even hold up her head. She spends her waking hours strapped in a wheelchair. She can breathe on her own and, sometimes, follows people with her eyes.
In 1986, Markborough began building the gated, deed-restricted community where the Jacksons still live. The development includes a private country club, parks, an elementary school and commercial property. Ponds and lush landscaping cover the grounds.
Markborough paid landscape architect Jonathon Toner $1,250 to draw up plans for the median to submit for county approval in 1994.
In court documents, Toner said the developer wanted to spruce up the approach along Bruce B. Downs Boulevard so it would mirror the landscaping in the subdivision, which the state honored for protecting wetlands and wildlife areas.
Toner gave the drawings to Markborough but never saw the approved plans. He said the county must have okayed the project or the developer would not have been able to proceed.
The architect also said he didn't watch Sunrise Landscaping put in the trees and bushes, nor did he see the finished product. Markborough did not ask Toner to review the work once it was completed.
Toner said he heard nothing about the median again until the lawsuit was filed more than two years later. When he went out there, he noticed the landscaping had not been planted according to his plans.
The trees were different than what he had prescribed in certain places and some bushes were too close together, and some trees were too dense with branches too close to the ground, he said. Had he seen the discrepancies sooner, he would have alerted Markborough.
"The first thing I would have noticed is the holly trees being full to the ground as the number one thing that cannot happen in a median . . . because it blocks visibility," Toner said in a deposition.
'It was the developer's responsibility'
Markborough officials are expected to argue that the landscaping passed county muster. Their attorney, James Kadyk, who also represents the community association, said he would not comment on the case before it goes to trial.
But in court documents, Tom Panaseny, the second in command for Markborough at Hunter's Green, said he relied on the architect to make sure the plants has been installed according to the designs. He assumed a post-construction review was a customary part of the contract.
Panaseny checked periodically on the landscapers' progress. Markborough's contract with Sunrise Landscaping required written reports on any changes, but there were none and no one objected, he said.
Shea Hughes, co-owner of Sunrise, said he and Panaseny used color-coded flags and a measuring tape to mark the location and type of each plant. He didn't review the plans as they went along, but instead followed Panaseny's instructions.
"The entire layout was coached by Mr. Panaseny," Hughes said in a deposition. "I was there as an assistant."
Hughes said they were in a hurry to do the work. He wasn't sure if Panaseny was present during the planting, and no one checked to see if it matched the architect's plans, he said.
Panaseny, who left Markborough in 1996, said he verified the number of plants but not the exact locations.
County staff approved the designs and the right of way permit needed to take over the maintenance. After the plantings, staff did a routine drive-by safety inspection. A formal release was not required.
David Fountain and other employees in the county Parks and Recreation Department reviewed the Hunter's Green landscaping plans before permits were approved. Fountain regularly drove past the intersection but never noticed trees or bushes blocking a motorist's view, he said in court documents. He lives in Pebble Creek, just north of Hunter's Green.
The county was legally protected against a lawsuit, largely because the government agency can't be held liable for the landscaping. The most a party could get is $200,000.
"They would have to show the county was negligent, and I'm not sure how they would do this," said Rob Brazel, senior assistant county attorney. "The county didn't maintain it. It was the developer's responsibility."
The county rarely gets sued in cases involving median plantings, he said. Its road department generally does a good job keeping up medians and has the records to prove it, Brazel said. Crews mow on a regular basis, and calls about overgrown trees and bushes are checked right away.
The county issues about six permits a year to homeowner associations and developers who want to landscape and maintain a median, said Jerry Taylor, an engineer with the county's planning and growth department. Typically, all are approved, provided they meet requirements for how far drivers can see down the road.
"The county doesn't have the funds to do it, but they are glad to see the developer do it," Taylor said.
In depositions, Debra Jackson said that before the accident, she never noticed anything blocking her vision as she turned to enter the development. She also didn't remember if the shrubs impeded her view seconds before the accident.
The Jacksons decided to sue over the landscaping after she could not figure out why she didn't see the oncoming truck, Valenzuela said. They checked and found the plantings did not match the designs, he said.
Trying to move on
Since the accident, the Jacksons have had a third child, Christopher, who turns 2 in April. They built a pool behind their pale pink house. A vanity license plate on their 1998 Mercedes Benz SUV reads, TLC4LIZ.
"They have dealt with this situation as courageously . . . as two people could," Valenzuela said. "They have gone through terrible suffering, the likes of which only people who have lost children could know."
Debra Jackson sought counseling for her depression, but stopped treatment when lawyers subpoenaed her records. Just recently, she visited the cemetery where Katherine was buried for the first time, Valenzuela said.
She didn't drive for more than a year.
Like other Hunter's Green residents, Debra Jackson prefers to use the entrance on less-traveled Cross Creek Boulevard instead of the main one on Bruce B. Downs.
Resident Frank Margarella, who used to work for Markborough, said he tries to avoid the Hunter's Green Drive intersection whenever possible. The oncoming traffic is heavy and it is tough to gauge speeds when turning into the development, he said.
Margarella was president of the New Tampa Community Council when the landscaping went in. The council formed in 1992 to beautify and improve the quality of life in New Tampa.
Landscaping Bruce B. Downs became a priority.
The group looked into doing its own plantings, but found that even the design work would cost too much. "You just don't go out there and plop down plants," he said.
At the time, the council applauded Hunter's Green for tackling the project.
However, Margarella said he believes that if a government agency builds a road, it should also have to make it look nice. Communities should not have to get in the business of beautifying public roads.
"It's tragic and it's unfortunate that you deal with things after the fact," Margarella said. "As much as we want beauty, we want safety."
- Susan Thurston can be reached at (813) 226-3463 or firstname.lastname@example.org.
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