HomeMy WebLinkAboutR-95-0617I
J-95-735
8/16/95 9 5 - 6
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY ROSE FELTMAN, WITHOUT
ADMISSION OF LIABILITY, THE SUM OF
$25,000.00 IN FULL AND COMPLETE SETTLEMENT
OF ANY AND ALL CLAIMS AND DEMANDS AGAINST
THE CITY OF MIAMI, IN CIRCUIT COURT CASE
NO. 94-04187-CA(21), UPON THE EXECUTION OF A
GENERAL RELEASE RELEASING THE CITY OF MIAMI
FROM ANY AND ALL CLAIMS AND DEMANDS;
ALLOCATING FUNDS THEREFOR FROM THE INSURANCE
AND SELF-INSURANCE TRUST FUND, INDEX CODE
NO. 620101-653.
WHEREAS, Rose Feltman, through her attorney, filed a claim
and lawsuit against the City of Miami, in the Circuit Court of
the 11th Judicial Circuit, Case No. 94-041877-CA(21), for alleged
negligence arising out of a trip and fall on a public sidewalk in
Coconut Grove, Miami, Dade County, Florida; and
WHEREAS, the above claim and lawsuit have been investigated
by. the Tort Committee of the City Attorney's Office and the
Department of Risk Management pursuant to Ordinance No. 8417,
which created the City of Miami's Insurance and Self -Insurance
Trust Fund and said Offices recommend that said claim and lawsuit
be settled for the sum of $25,000.00;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
CITY COMMISSION
MEETING OF
S E P 1 4 1995
9 e-solutig'nAL
L
Section 1. The Director of Finance is hereby authorized
to pay Rose Feltman, forthwith, without the admission of
liability, the sum of $25,000.00 in full and complete settlement
of any and all claims and demands against the City of Miami, in
Circuit Court Case No. 94-04187-CA(21), upon the execution of a
general release, in a form acceptable to the City Attorney,
releasing the City of Miami from any and all claims and demands,
with funds therefor hereby allocated from the Insurance and Self -
Insurance Trust Fund, Index Code No. 620101-653.
Section 2. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 14th da of September , 1995.
STIkPHEN P. CLARK, MAYOR
ATTE T:
WALTER or. ,POE
CITY CL RK
RISK MANAGEMENT REVIEW:
G
FRANK K. ROLLASON, DEPUTY CHIEF
CHIEF OF RISK MANAGEMENT
PREPARED AND APPROVED BY:
DAVID FORES IER
ASSISTANT ITY ATTORNEY
W270/BSS
-2-
BUD RY REVIEW:
MAN S. SURANA
ASS TANT CITY MANAGER
APPROVED AS TO FORM AND
CORRECTNESS:
C
III
� -- 61.6
I
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM CA'18'
I
o Honorable Mayor and Members oaTF . August 22, 1995 FILE 3-95-735
of the City Commission
SUBJECT : Feltman, Rose vs. City of Miami
Claims #011/GL/93-097
Case No.: 94-04187 CA (21)
FROM: A, nn J n , III REFERENCES
City Atto y
ENCLOSURES'
Attached hereto is a resolution which seeks Commission approval to settle the
above -referenced case for the sum of $25,000.00, without any admission of liability. A copy the
corresponding tort memorandum is enclosed for your review. The resolution has been submitted for
the City Commission meeting of September 14, 1995.
AQJ/DOF/kd
.
CA16 ' t
95- 616
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
A. Quinn Jones, III, City Attorney
TC Members of the Tort Committee
GATE August 15, 1995 FILE LT-94-075
SUBJECT Rose Feltman v. City of Miami
Case No. 94-04187-CA (21)
+ ` Claim No. 011/GL-93-097
Davi or suer, Jr. REFERENCES
Assis nt ty Attorney
t
ENCLOSURES
REQUEST FOR SETTLEMENT AUTHORITY
Facts
On April 29, 1993 at approximately 11:30 a.m,, Mrs. Rose Feltman tripped and fell on the
uneven decorative sidewalk pavement located at 3484 Main Highway in Coconut Grove. (See
attached photos.) Plaintiff was 82 years old at the time and was accompanied y three friends who
witnessed the fall. Mrs. Feltman's group of senior citizens from a Northeast Hollywood
Condominium Association had just disembarked from a tour bus and were headed to the Coconut
Grove Playhouse, The three independent eye witnesses confirmed and corroborated that Plaintiff
fell due to the raised bricks in the sidewalk.
Medical
Ms. Feltman was transported to Broward liospital where she was diagnosed with a
fracture of the forearm bones at or near the left elbow joint. Surgery was required to perform an
internal fixation. She was hospitalized for several days, casted and sent to physical therapy.
Given the proximity of the bone fracture to the elbow joint there has been serious permanent loss
of range of motion in the arm. Ms. Feltman unfortunately is or was left hand dominant. Medicals
are in excess of $14,000 with physical therapy, surgery and hospitalization.
Background
Ms. Feltman's entire arm was immobilized for several weeks. Primary treating physician
Dr. Crastinopol opines that given her advanced age, preexisting medical condition (breast cancer)
and the loss of range of motion to her dominant hand, this injury had an adverse impact on
Plaintiffs quality of life and ability to take care of herself. As a widow with grown children out of
state she has lost much of her previous self sufficiency independence and ability to cook, wash and
care for herself. She has become more dependent on the kindness of neighbors and has hired
nursing help and a house keeper to assist her.
95- M 3
A. Quinn Jones, III, City 'orney
and Members of the Tort committee
Representation
August 15, 1995
Page 2
Representation is by Irving Whitman of Whitman and Gordon with. Law Offices, located
at 3929 Ponce de Leon Boulevard, Coral Gables, Florida 33134.
Evaluation
Liability is adverse to City. Former Records Custodian Dan Brenner from the Department
of Public Works acknowledged in deposition that the City was aware of the specific trip and fall
hazardous depression at the sidewalk in question. Risk Management can also document other
claims on the main highway brick sidewalk, which is equally infamous as Flagler Street tile for
producing slip and fall litigation.
Given the advanced age of plaintiff, the exacerbation of her preexisting medical problems
by the loss cif range of motion and its impact on her quality of life and independence I believe we
should resolve this case for the negotiated amount of $25,000.00.
A sympathetic jury in Broward County (which has a reputation for being much less
generous than Dade juries) recently awarded a 79 year old female with a similar fracture of the
arm at the elbow joint over $245,000 after reduction for comparative negligence assessed at 9%.
(See attached Jury Trial & Tribulation excerpt.)
Sympathetic, grandmother figures are likable and bankable Plaintiffs especially when the
injury impacts the quality of life for their remaining years. Therefore, I am recommending and
requesting approval in an amount of $25,000.00,
d'�;7
JED/DISAPPROVED - Authority to settle and/or file an Offer of Judgment for
000.00.
CHAES
CHIEF ASSISTANT CITY ATTORNEY
r 95— 616
M
A. Quinn Jones, III, Cit) ",orney
and Members of the Tort Committee
August 15, 1995
Page 3
LEOWM. FIRTEL
ASSISTANT CITY ATTORNEY
DAVTD
ASSIST
ASSISTANT CITY ATTORNEY
N
THERESA GIRTEN
ASSISTANT CITY ATTORNEY
CHRISTOPHER F. KURTZ
ASSISTANT CITY ATTORNEY
Reviewed as to Content and Proposal:
�vti FRANK K. ROLLASON, DEPUTY CHIEF
CHIEF OF RISK MANAGEMENT
DF/pb/W001
i
95- 61.6 s
Jury Trials and Tribulations rase 7
`IONROE COUNTY
DEBOR_aH EILEEN .\IARTIN v, THE DISTRICT BOARD OF TRUSTEES OF FLORIDA
KEYS COI�IUNITY COLLEGE. (Monroe County Case No.: 93-582, Judge Ignatius
Lester). Tried \lurch 20-2.1, 1995.
Plaintiffs attorney: IRA LEESFIELD and ALEX ALVAREZ
Defendant's attorney: \r'ILLIAM SOLMS, JR., and HARK.-kN E. UDELL
DISCHARGE OF FIREARM; Negligent law enforcement training. Plaintiff was enrolled in
the police academy of the Florida Keys Community College. Plaintiff was in a course which
involved a domestic violence mock scenario. One of the instructors tired a weapon. loaded with
blanks, obtained from the Defendant. The blank was exploded approximately 3 feet from the
plaintiffs hand. Plaintiff. 25. female, suffered damages to her ligaments, tendons, and muscles
of the hand. She underwent reconstructive surgery by DR. JOEL LEVIN. Plaintiff had
approximately S34,000.00 in medical and will require future cosmetic surgerv. Plaintiff \vas
unable to pursue a career in law enforcement. Plaintiff claimed that the procedures for checking
ammunition blanks was not followed in the presentation of the course. Defendant's Expert.
KENNETH HARMS, testified that all of the defendant's procedures were proper.
Verdict for Plaintiff: S500,000.00.
BROWARD COUN'I"�8
PAULINE STEWART and EDWARD S. STEWART, her husband v. DISCOVERY
CRUISE, LTD d/b/a DISCOVERY CRUISE LIMES. (Broward County Case No.:93-22314,
.Judge Herbert Moriarty). Tried: March 15, 1995.
Plaintiffs Attorney: BRETT RIVKIND and LAURIE `•IILGRINI-ENGELBERG
Defendant's Attorney: DAVID J. HORR
CRUISE SHINI,-aalls Plaintiff. a 78 year old passenger aboard the Defendant's Cruise Ship
Discos er y. fell ulrilrexitingshe casino. Plaintiff claimed that she tripped and fell over cables
that had been left ost thmcarpet. Defendant claimed that the cables had nothing to do «ith the
accident. plaintiff had a history of problems with balance, dizziness, and tripping and falling..
Plaintiff suffered a fracture to her proximal humerus. She had to undergo an open reduction.
DR. STEk1v'ART EIDELSON testified plaintiff has a 25% disability. Medical bills totalled
approximately •$19.000.00. The jury found the plaintiff 9% comparative negligent and the
defendant 91% negligent'. Plaintiff tiled an Offer of Judgment in the amount -of S90.000.00.
Verdict for Plaintiff: 5275,000.00 (unredu*d)
95- 616 7 ��,��
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The Information Management Company
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6954 N.W. 12 STREET, MIAMI, FLORIDA 33126
305-477-9149.800-287-4799 - FAX 305-477-7526
condition
FC 017
J-95-783
8/23/95
RESOLUTION NO. 9GO
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY LINDA ROSALYN SMITH, WITHOUT
ADMISSION OF LIABILITY, THE SUM OF $30,750.00
IN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL
CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI,
IN CIRCUIT COURT CASE NO. 94-2436-CA 32, UPON
THE EXECUTION OF A GENERAL RELEASE RELEASING
THE CITY OF MIAMI FROM ANY AND ALL CLAIMS AND
DEMANDS; ALLOCATING FUNDS THEREFOR FROM THE
INSURANCE AND SELF-INSURANCE TRUST FUND, INDEX
CODE NO. 620101-651.
WHEREAS, Linda Rosalyn Smith, through her attorney, filed a
claim and lawsuit against the City of Miami, in the Circuit Court
of the filth Judicial Circuit, Case No. 94-2436-CA 32, for alleged
negligence arising out of an automobile accident that occurred on
June 3, 1993, at the intersection of Grand Avenue and Plaza
j Street, in Coconut Grove, Dade County, Florida; and
I
WHEREAS, the above claim and lawsuit have been investigated
by the Tort Committee of the City Attorney's Office and the
Department of Risk Management pursuant to Ordinance No. 8417,
which created the City of Miami Insurance and Self -Insurance
Trust Fund and said Offices recommend that said claim and lawsuit
be settled for the sum of $30,750.00;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
CITY COMMISSION
MEETING OF
SEP 1 4 1995
Repolution No
� - C-17
Section 1. The Director of Finance is hereby authorized
to pay Linda Rosalyn Smith, without the admission of liability,
i
the sum of $30,750.00 in full and complete settlement of any and
i
all claims and demands against the City of Miami, in Circuit
i
Court Case No. 94-2436-CA 32, upon the execution of a general
release, in a form acceptable to the City Attorney, releasing the
City of Miami from any and all claims and demands, with funds
therefor hereby allocated from the Insurance and Self -Insurance
Trust Fund, Index Code No. 620101-651.
Section 2. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 14th day of September 1995.
ST PHEN P. CLARK, MAYOR
i
i
(LY(_
T:
GE �iLi�
R
CITYCtFJ6K
RISK MANAGEMENT REVIEW: BUDGETARY REVIEW:
F K. ROLLASON, DEPUTY CHIEF _"71KANWAR S. SURANA
CHIEF OF RISK MANAGEMENT ASSISTANT CITY MANAGER
PREPARED AND_..APPROVED BY:
,� ...
W EN BITTNER
ISTANT CITY ATTORNEY
293/WB/bss
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APPROVED AS TO FORM AND
OnDuv ormTV00 .
95- GO
e4
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM CAm19
Honorable Mayor and Members DATE : August 23, 1995 FILE : J-95-783
To : of the City Commission
SUBJECT : Resolution Authorizing
Settlement with Linda Rosalyn Smith
r�lf Case No.: 94-2436 CA 32
FROM : nn J n ,III REFERENCES:
City Atto G�� City Commission Agenda
ENCLOSURES: September 14, 1994
Attached is a proposed Resolution authorizing the Director of Finance to pay Linda Rosalyn
Smith, without admission of liability, the sum of $30,750.00, in full and complete settlement of any
and all claims and demands against the City of Miami upon the execution of a Release of All Claims,
releasing the City of Miami from any and all claims and demands.
The complete evaluation of this claim is contained in the attached Tort Committee settlement
memorandum. In brief, the claimant was seriously injured in an automobile accident involving a City
of Miami garbage truck.
This claim has been investigated by the Tort Committee and the Department of Risk
Management, and is hereby recommended by this Office.
memsmith.doc
Attachment2
CIV I - f
95- 61.7
M
CITY OF MIAMI. FLORIDA
INTER -OFFICE MEMORANDUM
_ _ Members of the Tort Committee
==Ck+ Warren Bittn
Assistant City attorney
:ATE August 22, 1995 : �EG94-046
3;-&-ECT Linda Rosalyn Smith
D/1: June 3, 1993
L/L Grand Ave. & Plaza Street (coconut crove)
PEFE92ENCES Miami, Florida
ENCLOSURES Claim No. 017/V-93-201
'CONFIDENTIAL: THIS DOCUMENT IS NOT SUBJECT TO DISCLOSURE
AS A PUBLIC RECORD UNTIL SO NOTIFIED TO THE CONTRARY BY
THE CITY ATTORNEY'S OFFICE. This documents was prepared by the
Miami City attorney to reflect mental impressions, conclusions, and litigation
strategy in pending civil litigation involving Antonio White & Linda Rosalyn
Smith and the City of Miami, Dade County Circuit Court, Case No. 94-2436 CA
32. This document is exempt from Public Records disclosure as an attorney
work -product until such time as all litigation and administrative proceedings
involving said parties have been concluded. [Section 119.07(3)(n), Fla. Stat.
(1993)].
REQUEST FOR SETTLEMENT AUTHORITY
STATUS:
This case is set for trial beginning the two (2) week period commencing September 26,
1995. Mediation was held on July 11, 1995.
FACTS:
On June 3, 1993, the claimant, Linda Rosily Smith, was driving a rental vehicle and was
involved in an accident with a Solid Waste Garbage Truck at the intersection of Grand Avenue
and Plaza Street in Coconut Grove. The passenger in her car was Antonio White, who's claim
was recently settled by City Commission Resolution. The garbage truck, driven by City
employee, Carl Springer, was heading West on Grand Avenue in the far left East -bound lane, i.e.,
he was driving on the wrong side of the street. The claimant's vehicle was heading north on Plaza
Street, stopped at the intersection of Grand Avenue (where the intersection is controlled by a stop
sign), looked left down Grand Avenue to make sure no vehicles were coming, and proceeded to
execute a right-hand turn onto Grand Avenue heading East, when the vehicle collided with the
West -bound garbage truck. Understandably, the driver of the claimant's vehicle was not
expecting to encounter a vehicle heading West in the East -bound lanes of traffic. The City driver
95- 60
S
A
Members of the Tort Comn e
Re: Linda Rosalyn Smith
8/22/95
Page 2
received a citation for driving the wrong way on a two way street, plead no contest, and avoided
getting any points on his license by attending driving school.
Although this writer interviewed the City driver, his co-workers on the truck, his
supervisors and the solid waste safety officer to prepare the City's defense prior to depositions, no
one thought it important to advise the City Attorney that, immediately after the accident, Mr.
Springer was required to undergo urinalysis drug testing, and that he tested POSITIVE for
marijuana and cocaine. Mr. Spinger strategically waited until his deposition was taken by Mr.
White's attorney to blurt it out (testimony that the City Attorney might have been able to avoid or
object to if given prior warning). He further testified that, prior to the accident, he used cocaine
at least once a week, and marijuana 2 or 3 times a week since high school. In mitigation, Mr.
Springer did testify that he hadn't used any marijuana or cocaine for at least 2 or 3 days prior to
the accident, never did drugs on the job (only at home on his free time), and, after he tested
positive for drug usage, successfully completed a City sponsored drug rehabilitation program to
avoid losing his City job. In other words, this City driver is still out on the street.
MEDICAL:
Following the accident, the claimant says she had pain in the neck, left shoulder, left ankle,
and the anterior chest region. A week or so after the accident, she was seen by a chiropractic
group (Medical Rehabilitation Center), and started on a course of physical therapy, which
continued for several months. This conservative treatment was effective in resolving her neck and
ankle problems, but was ineffective in resolving her shoulder complaints. As a result, she began
treatment with Dr. Michael Russin, who, after having obtained and NM and x-rays, admitted the
claimant to Mount Sinai Hospital on August 27, 1993, to perform arthroscopic surgery on a
suspected partial rotator cuff tear of the left shoulder. Although no rotator cuff tear was
ultimately found, Dr. Russin diagnosed the claimant as having an impingement syndrome. As a
result of the surgery, the claimant was left with a significant keloid formation, i.e., scaring (see
photos attached).
On June 13, 1995, the claimant was examined, at the request of the City, by Dr. Salvador
M. Ramirez, M.D., a notoriously conservative orthopedic surgeon. Dr. Ramirez found a 5%
permanent impairment of the claimant's body as a whole as a result of the injuries sustained at the
time of the accident.
THE CLAIMANT:
At the time of the accident on June 3, 1993, the claimant was 42 years old. She is
employed as a dental assistant and is the mother of 2 children (one of which is a 10 ,year old
minor). She is a high school graduate, who continued on to earn an Associate of Arts degree
(AA). She is not making any claim for lost wages or diminution of earnings capacity.
WR&TORTMEMIDOC 9 5 _. G
L
Members of the Tort Com: be
Re: Linda Rosalyn Smith
8/22/95
Page 3
DAMAGES:
Medicals: The claimant has incurred medical specials as follows ($8,000 of which have
been paid by PIP):
a. Michael A. Russin, M.D.
b. U.S.A. Diagnostics
c. Dade Broward X-ray
d. Mt. Sinai Hospital
e. Medical Rehabilitation
Total Medicals:
ANALYSIS:
$ 5,355.00
2,250.00
1,235.00
1,005.00
2,765.00
The accident was clearly the fault of the City Driver. No realistic percentage of
comparative negligence can be assigned to the claimant under these circumstances. Aggravating
circumstances against the City exist because the City driver tested positive for drug usage.
Although an argument can be made to exclude this evidence at trial, the chances of having an in
limine motion granted are probably less than 50/50. The judge is the Hon. Rosemary Usher
Jones.
Considering the surgery, resulting scaring and permanent disability assigned by our own
conservative TIME physician, a settlement significantly less than 3 times the medicals ($37,830.00)
represents a savings of over $7,000.00 to the City
RECOMMENDATION:
Authority for settlement in the amount of $30,750.00.
�r
APP O D/DISAPPROYED - Authority as recommended above.
A. O S, III
City Atto e
CI-iARLES C. MAYS
Chief Assistant City Attorney
W RH:TORTMEM2.DM
-- Gi7
Members of the Tort Comr "'se
Re: Linda Rosily-Sipith
8/22/95
Page 4
LEON I F TEL e
Assistant City Attorney
CHRISTOPHER F. KUR'
Assists City Att,(G—ev j
DAVID FORE
Assistant City ,
c
j4e�j ...--� 4zt�,�
-
THERESA L. GIRTEN cl-,Wo 04; c 01—�
Review as to Content and Proposal:
FRANK K. ROLLASON, Deputy Chief
Chief of Risk Management
WRRTORTMEM2.DOC
95- 617
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