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Home My WebLink AboutR-95-0695J-95-838 9/20/95 95- 695 RESOLUTION NO. A RESOLUTION AUTHORIZING THE DIRECTOR OF FINANCE TO PAY CARMEN HARRIS, A MINOR, JAMES HARRIS AND DENISE HARRIS, LEGAL GUARDIANS, PLAINTIFFS, THE SUM OF $200,000.00, IN PERIODIC PAYMENTS OVER FOUR FISCAL YEARS WITHOUT ANY ADMISSION OF LIABILITY, IN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI IN THE CIRCUIT COURT OF DADE COUNTY, FLORIDA, CASE NO. 92-14811 CA (30); ALLOCATING FUNDS THEREFOR FROM THE CITY OF MIAMI SELF- INSURANCE AND INSURANCE TRUST FUND. WHEREAS, Carmen Harris, a minor, James and Denise Harris, Legal Guardians, Plaintiffs, through their attorney have filed a claim and lawsuit against the City of Miami, in the Circuit Court of Dade County, Florida, Case No. 92-14811 CA (30), for an injury Carmen Harris, Plaintiff, sustained on April 15, 1989; and WHEREAS, pursuant to Ordinance No. 8417, the above claim and lawsuit have been investigated by the Tort Committee of the City Attorney's Office and the Department of Risk Management; and WHEREAS, said Offices recommend that the sum of $200,000.00 payable in four instalments, with the first payment being made in fiscal 1995-1996 for $100,000.00 and the balance to be paid in equal one third installments over the next three fiscal years, with the final installment payable on January 1, 1999, without any admission of liability; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: CITY COMMISSION MEETING OF SEP 2 8 1995 Resolution No. 95- 695 L Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The Director of Finance is hereby authorized to pay Carmen Harris, a minor, James and Denise Harris, Legal Guardians, Plaintiffs, the sum of $200,000.00, without any admission of liability, in full and complete settlement of any and all claims and demands against the City of Miami in the Circuit Court of Dade County, Florida, Case No. 92-14811 CA (30), with funds therefor hereby allocated from the City of Miami Self - Insurance and Insurance Trust Fund. Section 3. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 28th ATTEST: WALTER J.CYOEPIAN, CITY CLERK -2- day of September 1995. STEP EN P. CLARK, MAYOR 95- 695 SELF-INSURANCE TRUST FUND REVIEW: OD 620101- G F K. ROLLASON, DEPUTY CH EF CHIEF OF RISK MANAGEMENT D ATM PREPARED AND APP VED BY Ia ASSISTANT CI kd:W335.DOC - 3 - BUDGE A Y V EW: MANO S. SURANA ASSISVANT CITY MANAGER APPROVED AS TO FORM AND CORRECTNESS: .95- 695 m 10 Sep,21, 1995 2.42PM CITY ATTORIIEYS OFFICE MIMI,PL CITY OF MIAMI, FLORIDA ' INTER -OFFICE MEMORANDUM 110, JOOJ r, 1i 0 TO: Honorable Mayor and Members DATE : September 20, 1995 FILE : J-95-838 of the City Commission SUBJECT : Harris, Carmen, et. al, vs. City of Miami Chums #0 11 /PC/9-004 CaseNo.: 92-14811 CA (30) FROM : JoP14 REFERENCES City Attotn ENCLOSURES: Attached hereto is a resolution which seeks Commission approval to settle the above -referenced case for the sum of Two Hundred Thousand Dollars ($200,000.00), VAthout any admission of liability. It is recommended that the Two Hundred Thousand Dollars ($200,000.00) be paid in four installments, with the payments being made as follows; 1. The first payment being made in fiscal year '95-'96 in the amount of One ' Hundred Thousand Dollars ($100,000.00); 2. The second payment being made in fiscal year '96297 in the amount of Thirty Three Thousand Three Hundred Thirty -Four Dollars ($33,334.00); 3. The third payment being made in fiscal year'97.'98 in the amount of Thirty Three Thousand Three Hundred 'Thirty -Three Dollars ($33,333.00); and 4. TILV fuurth payment being made in fiscal year `98-'99 in the amount of Thirty Three Thousand Three Hundred Thirty -Three Dollars ($33,333.00). A, copy of the corresponding tort memorandum is enclosed for your review, A's Resolution is being submitted to you for your wmideration at the City ConurAssion Meeting. of September 28, 1995. AQJ/DOF/kd r4 Sep• 2: .995" 2'43P1 `; 'C:"� A'70PNE°S CFF:CE IA. AM, rL Liu. ,uuJ .. JI V ([7 . 01Y of WAMI, PLARDA °Z INTER -OFFICE MEMORANDUM iu : Member of Lht Turt Cuaaantittee FFoaw . Dacvid Forestier, J A.%sistant City DATE . September 20, 1995 LT.lL2,198 ,UOAaaCT : Harris, Carmen vs. COM Cease No. 92-14911 CA (30) sgEFEwr,coVA1w No. O11/PC190-004 ea►eILOWItFs - On April 15, 19ti9, Carmen CPA age S, was playing on the "fireman's pull' of the "Jungle Gym" at Hiocatenmial Park After climbing to the top of the Sroman's pole, she reached out to the newt portion of the Jungle Gym Hawever, the distant between the two was too far for her to reach. Shc lost her grip and foil, head first, approximately 10 feet to the grmmd She lost consdousnom fnr approxima sly 20 a inutes. City paramedics transported her to Jaokson Memorial Hospital where she was hospitalized in pediatric intensive care for approxirmay five weeks~, laid treated for neurological dysfimction, After a CAT-SCAIK Carmen was diagnosed as having sustained multiple punctuate pete*chial hemorrhages of the left frontal tube; of ails brain, which is multiple contusions with bleeding and swolling of the brain. This initial diagnosis was rendered by bar primary treating physiciam Rarth Green (who is currently the Senior Professor and Chairman of the Department of Neurological Surgery, University of Miami School of Medicine 7aaacksun Meruoeial Hospital). Dr, Cirai confirmed that this injury wars to Carmen's dominant hcniephere of the brain, the area affecting cognitive flanotiona, apeeeh, behavior, sUcaigth and balarace. During Catmon's rgcovery she was unable to spoak coherently, coordinate &a hand eye exercises or de monrltrate sgfficiemt gross motor flrnctinn sidlLw nexxesasy to walk and maintain her bola= or even hold hir head steady while seated, In addition to her medical treatment she received rehabilitative sprxch a1d physical therapy. DLukig this time Carmen also began to oarparience epileptic seizureat, which were ultimately controlled with Phenobarbital. While convalescing, Carmen was adopted by W. and Mrs. Jaines Harris. In the six years dw have elapsed liras the accident Carmen has progressed only marginally. Her IQ has been clinically tested emd eWuated as abnormal for her age. Caam= is ammrrtly enrolled in learning diaabled cheeses, oontitaues to walk with an awkward gait, has rigk side hndy weakness, pool' de rterky In her durnima right hand, inability to hop on ono log, cognitive dellficiencles, impidred verbal skills, diminished concentration and difficulty following all but the tuost a'rmpliatie of instr uWorm Carmen also takes Ritalin in order to control her Attemion Deficit Disorder (ADD). �a q�' EIS rk"SeP 21 1995�ITI ATTORNEYS OF' 2.55PM'.'�"�," G FIDE MIAMI, PI. lvo, su�� r, tit Metnbets•of the Tot. —ornmittee �y Page 2 •.n l,V Neurological Il&'s confirm that she sustained significant brain damage as a direct result of head trauma. LAMAGk,S Carmen and her adoptive parents have sued the City of Miami and pled multiple theories of liability. The lawsuit alleges negligent maintenance, inspection, installation and repair of the tireman's pole and failure to insure the use of adequate impact absorbent ground cover in the Pall zone beneath the pole. Negligent design is also alleged and attributed to the failure to provide hand grips at the top 'of the pole and to make subsequent mudifications or post warnings regarding the height of the structure, which exceeded National Play Ground Safety Standards by at least two feet and possibly as much as four feet. Lastly, they alleso that a play area for toddlors and pmschool children should not have been placed in close proximity to or within the same area, as oquipmem dcsignod fbr older ohildmn. The parties arc socking the recovery of damages for pain and suffering, past and future medicals, economic costs associated with special education, cowiseling, therapy, and vocational training as well w diminished ability to earn income due to Carmen's mental and physical handicaps. The aggregate future economic damages, medical care and diminished earning capacity wen® estimated by two expert economists consulted by the City as being well over two million dollars. Past medical expenditures are in excess of $35,000. September 20, 1995 Plaintiffs are represented by Joseph Glick, Esquire whose Law offices are located at 44 West Flagler Street, Suite'550, Miami, Florida 33130 and Roy Wesson, 44 'West Flagler. Streets Suite 402, Miami, Florida 33130. E_ YAL=QN .r As a child of tender years, there is no legal fa dt or contributory negligence that can be assigned to Carmen as an incompetent minor. Children under the age of 8 are presumed to be incapable of reasonably apprehending danger in the eyes of the law. In Mc�T dW, 256 So. 2d. 542 (Fla. 4th DCA 1972). Comparative negligence can be argued against the custodial foster parents who accompanied Carmen at the park for negligent supervision, However, the percentage of their negligence, if any, is minimal. Nevertheless, even in the unlikely event that comparative negligence were found by a jury, the potential exposure for the City, given the projected economic damages and actual value of significant brain damage, would still result in a substantial six (6) figure judgment. Plaintiffs hired Dr. Joseph Frost, the leading nationally acknowledged playground safbry expert. Dr. Frost is a professor, lecturer, and prolific author on child safety issues and playground design. Dr. Frost was a formidable witness in deposition and has testified in courts throughout L 95- 695 I SEu. 211'Y r1'i"1'UY,NIrY6 UP u tYliM rL } 4 IVMembers'of the Tort 'nminee September 20 1995 Page 3 the country. Dr. Frost has very damaging opinions on this lawsuit with regard to the height of the monkey barslfireman's pole, the absence of hand grips on the elevated platform to prevent falls, the inadequacy of impact absorbent ground cover and the insufficiency of its depth and the City's ' use of Trap Sand (fine powdery, golf course sand which compacts when wet) verses coarse DOT 70 sand which retains its absorption characteristics. Even the City's expert, Dr. Lou Bowers, cannot refute Dr. Frost's testimony with regard to maintenance issues. i Maintenance history, records, and corrective action at Bicentennial park were particularly problematic during the late 1980s due to the vast number of homeless persons living in the park at that time and the daily' acts of vandalism. Further complicating the City's defense are several inspection reports (see attached). An emergency safety evaluation of park equipment at Bicentennial Park, in particular the wooden climbing apparatus, was requested three years before Carmen's fall However, no inspection or verifiable corrective action can be documented in ` response thereto. ? Notice and knowledge to the City of defects or problems with the placement, design and depth of around cover, were matters of municipal and legal record as early as 1981. In 1981, the City of Muni was sued for a similar playground fall but with less serious injuries. That lawsuit (which also hinged upon inadequate safety issues, ground cover, etc.) was originally dismissed by the trial court. However, the Florida Supreme Court reversed the trial court and re -instated the suit. &g City of Maml y. Amgll L 472 So.2d 728 (Fla. 1985). Also see the attached memo of Parks & Recreation Director Albert Ruder to GSA dated eleven (11) days before Carmen's accident which suggests we were still purchasing the wrong kind of sand for playgrounds in spite . , of because it was less expensive. Arneller is significant in several respects. As an original party defendant the City was on notice of these safety issues eight years before Carmen's fall, AMIller established precedent for municipal liability on placement of playground equipment and j the requisite duty of care for playground surface cover in fall zones. i .. The trial of Carmen Harris, vs. City of Miami commenced on August 28, 1995 before Judge Murray Wldman. After several adverse evidentiary rulings against the City during -the first two (2) days of trial and at the conclusion of Carmen's devastating testimony, the City proposed and Plaintiffs accepted a tentative structured settlement. The structured settlement is an agreement to pay $200,000 dollars over the next four years, subject to Commission approval. The first payment of $100,000 dollars will be tendered in fiscal year 1995-1996, wish subsequent payments in equal installments over the next three (3) fiscal years with final payment due on January 1, 1999. This settlement is in the brat interest of the City for the following reasons: (1) the high probability of a Plaintiffs verdict well in excess of the statutory cap; (2) the full value of the claim without a sovereign immunity cap is realistically close to seven (4) figures; (3) this case has legislative appeal for a claims bill given a sympathetic little girl with significant brain damage; and (7) savings of post -trial costs and the expense of lobbying in Tallahassee to fight a claims bill `t s +f 'Sep, 21, 995- 2'41 M,%CITY ATTOBEYS OFF ICE. Mimi, rL 1�• JVI J ;. Members of the Tort .mutes September 20, 1995 a Page 4 effort that can be re -initiated every legislative islative session until successful or abandoned, A settlement � of Two Hundred Thousand Dollars ($200,000.00) is therefore advised. f Plew indicate your approval/disapproval for a struc =ed settlement in the amount of Two Hundred Thousand Dollars ($200,000r00). =k ADISAPPROVE M,000.00 —.- A. QUIZ (.'.i V A CHIEF ASSISTANTICITY ATTORNEY LEON M. FIEL EL ASSISTANT CITY ATTORNEY Mi, BrRiaR :STANT CITY ATTORNEY r � •!-- :1: ,fit-.. ' • 95-- 635 p 21. 1,: 1995 2:44R. "' CITY ATTORNEYS OFFICE u ,IAMI FI No r, oio ��s Members of the Tort ..mw ttee September 20, 199S page S 'CHRIMPHER F. KURTZ ASSISTANT CITY ATTORNEY �• 'TkYERESA GIRTEN 99 ASSISTANT MY ATTORNEY ' DAVID Z. STONE .'� ASSISTANT CITY ATTORNEY , A• S• ;, FRANK K. ROU ASON, DEPUTY CHIEF CHIEF OF RISK MANAO�NT 'rJ .v ,i {- rS W001DOF;k MARRIS 95— 695 L