HomeMy WebLinkAboutR-94-0807i
J-94-876
10/26/94
RESOLUTION NO. 9 4 807
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO SONIA LEBESS, THE SUM OF
$62,500.00, 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. 93-23522 CA (06);
ALLOCATING FUNDS THEREFOR FROM THE CITY OF
MIAMI SELF-INSURANCE AND INSURANCE TRUST FUND.
WHEREAS, SONIA LEBESS, by and through her attorney, has
filed a claim and lawsuit against the City of Miami, in the
Circuit Court of Dade County, Florida, Case No. 93-23522 CA (06),
in consequence of a slip-n-fall that occurred on or about
April 2, 1993 at or near 2937 Southwest 22nd Terrace, Miami,
Florida; and
WHEREAS, the above claim and lawsuit has 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 Self -Insurance and Insurance
Trust Fund; and
WHEREAS, said Offices recommend that the sum of $62,500.00
be paid without any admission of liability;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings set forth in the
Preamble to this Resolution are hereby adopted by reference
CITY COMMISSION
MEETING OF
NOV 17M4
Resolution No.
94- 807
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The Director of Finance is hereby authorized
to pay to SONIA LEBESS, the sum of $62,500.00, 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. 93-23522 CA (06),
with said 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 17th day of November , 1994.
po"
ATTE5 : STE EN P. CLAAK, MAYOR
HIRAI, �K
SELF-INSURANCE TRUST FUND REVIEW: 13UDGETARY REVIEW:
4Av 4::;AAV i
FRANK K. ROLLASON, Depu y hief JO S. SURANA
CHIEF OF RISK MANAGEM T ASSI ANT CITY MANAGER
PREP' l AND PROVF�D 7X: CORRECTNESS:APPROVED AS
FORM AND
DAVID FORE�TIER, JR A: QU NN JIOWS, I
ASSISTANT CITY TORNEY CITY ATTO Y
DOF/kd/M4688
94- 807
-2-
e
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
CA=23
J-94-876
To: Honorable Mayor and Members DATE October 14, 1994 F�LE:LT-93-195
of the City Commission
FROM : A. Q inn J nes, III
City At o ney
SUBJECT: Lebess, Sonia vs. City of Miami
Claims No. 011/GL/93-091
Court Case No. 93-23522 CA (06)
REFERENCES:
ENCLOSURES:
Attached is a proposed Resolution being distributed to you
at this time so that you may review the item for consideration at
the City Commission Meeting. The Resolution seeks Commission
approval to settle the above -referenced case for the sum of
$62,500.00 without any admission of liability.
The details of the case can be found in the Tort Memorandum,
enclosed for your information.
AQJ/DOF/kd
94- 807
e of2g-/
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO Tort Committee Members
Law Department
FROM
David Forestier, Jr.
Assistant City Attorney
DATE September 21, 1994 FILE LT-93-297
SUBJECT Lebess, Sonia vs.
City of Miami
Case No. 93-23522 CA (06)
REFERENCES Claim No. O11/GL/93-091
ENCLOSURES
REQUEST FOR SETTLEMENT AUTHORITY
FACTS:
On the afternoon of April 2, 1993, pedestrian Sonia Lebess
tripped and fell on an elevated flag of a City sidewalk at 2937
SW 22nd Terrace. The deviation between the slabs of concrete
measured 1.5 inches in contravention of industry standards and
the ADA acceptable deviation tolerance of one half inch.
Ms. Lebess who was allegedly wearing flat shoes, severely
fractured her left elbow joint, suffered facial lacerations and
loss of a tooth. The fall was corroborated by witness Miguel
Portela, a neighborhood resident, who assisted Ms. Lebess. In a
sworn statement Mr. Portela alleges that the sidewalk was damaged
during Hurricane Andrew by an uprooted tree near the sidewalk.
Ms. Lebess was unfamiliar with the sidewalk area as she was
displaced from her home in Southern Dade County by the Hurricane
and had never walked on the particular sidewalk in question. On
the day of this trip and fall she was walking home after having
just dropped off her car at a nearby mechanic.
MEDICAL INFORMATION
Ms. Lebess was immediately transported by her daughter to
Doctors Hospital's emergency room and the care of Dr. Edward
Lazzarin. Radiology confirmed the existence of a severely
comminuted left distal T-Type condylar fracture of the humerus.
Dr. Lazzarin expressly states in his reports and advice to Lebess
that this particular fracture was "very bad... perhaps the worst
I've seen _in fourteen years". Consideration was given to
transferring Ms. Lebess to Dr. Gregory Zych one of the leading
specialists at the University of Miami Jackson Memorial Hospital.
Despite hospitalization and traction for over 2 weeks,
alignment of the bone fragments showed little improvement and
condition was deteriorating. The pain was excruciating
evidenced by the high dosage of narcotics prescribed.
doctors were concerned, "that no one could fix the fracture
restore function of the joint".
the
her
as
The
and
94- 807
Tort Committee Me ors Sept ber 21, 1994
Law Department Page - 2 -
On April 17, 1993, Ms. Lebess underwent surgery for an open
reduction and interval fixation with metal plates, pins and/or
screws. The surgical attempt to realign the elbow joint was
unsuccessful because the bone fragments were to numerous and
fragile for plate fixation, so screws were used instead. The
surgery also revealed a major complication i.e. crushing ulner
nerve damage. The ulnar nerve is responsible for fine motor and
sensory articulation of the forearm and hand.
Ms. Lebess remained hospitalized for an additional 2 1/2
weeks. After being discharged she commenced physical therapy
but displays limited normal function of the arm and elbow joint.
Osteoporosis and trauma induced arthritic changes have further
restricted the range of motion at the shoulder and elbow joint.
To illustrate her range of motion, Ms. Lebess is now after 1 1/2
years just barely able to touch her lips with her left hand.
Fortunately, Ms. Lebess is right hand dominant. In addition to
the frozen shoulder Ms. Lebess has a visible 8" scar from the
elbow surgery. Medical bills for the surgery and physical
therapy are in excess of $32,000. Ms. Lebess also required
dental care which included surgery and a tooth cap. Guillermo
Valdes Fauli DDS issued a bill for $350.00.
As recent as August 25, 1994 Ms. Lebess underwent a third
surgery of the elbow for the removal of internal fixation screws
by Dr. Lazzarin. The cost of the latest surgery is $915.00.
All medical bills to date have been covered by medicare
however there is a pending lien for $27,000.00 (See attached).
The Independent Medical Examination (IME) by Dr. Salvador
Ramirez, a generally conservative orthopedic specialist indicates
a five (5%) percent permanent disability. However, the most
recent surgery and removal of the screws may leave Plaintiff with
even more restricted range of motion, and thus expose the City to
even greater damage.
BACKGROUND
Ms. Lebess is a sixty-five year old retired, widow. She has
three surviving adult children and four grandchildren. Ms.
Lebess makes a good impression and presents herself as a
sympathetic.sincere witness. A jury will be impressed with the
ordeal she has endured.
REPRESENTATION
Ms. Lebess is ably represented by Danny Correa, Esq. of
Aran, Correa and Guarch P.A. with law offices located at 710
South Dixie Highway, Coral Gables, Florida 33146-2602.
94- 807
Tort Committee Mc ers Sep iber 21, 1994
Law Department Page - 3 -
EVALUATION
The City had a duty to maintain the sidewalk. Liability is
adverse to the City.
Pre trial discovery and personal investigation reveals
sufficient basis to document both actual and constructive
knowledge and notice of the defect to the City.
The current tenant in possession, Mr. Rotigilo who has
resided at the property adjacent to the accident scene for over
ten (10) years was deposed. He advises that the area has
previously flooded after rain storms and that with each flood he
has alerted City engineers. City documents confirm site
inspection by City engineers. Mr. Rotigilo maintains that the
elevated flag predates Hurricane Andrew and was not caused by the
uprooted tree. Instead he counters that erosion or general
subsidence of the earth beneath the side walk has been caused by
the flooding and thus the elevated flag. Professional literature
in the engineering and legal field support this theory.
Consultations with Public Works Civil Engineer Dan Brenner also
confirms erosion as a contributing cause. Remedial repairs of
the sidewalk, by the City, were concluded on June 24, 1994. (see
attached photos)
Given the gravity of this elbow fracture, the excessive
period of hospitalization, age of victim, extended immobilization
of the Plaintiff in traction, three related surgical procedures,
impaired function of the left arm, the associated pain and
suffering, and dental care, it is not unreasonable that a jury
verdict may award this Plaintiff in excess of $150,000 dollars
damages. Even allowing for a 50-50 split on the comparative
negligence issue the City could potentially still be liable for a
$75,000 judgment in a best case scenario for the City. Given
that City had actual knowledge and/or constructive notice of this
defect, and that Plaintiff never walked on this sidewalk before,
the comparative negligence assessment will most likely be less
than evenly split.
Therefore it is requested and advised that $62,500 be
approved in full and final settlement of this lawsuit.
Plaintiff's counsel has agreed to make Medicare a co -payee on the
sett ent check given the outstanding lien.
P VE/DISAPPROVE $62,500.00
CITYYUATIORgE , III
94- 807
Tort Committee M )ers
Law Department
CHARLES C.-,MAYS Y
CHIEF ASSIISSP CITY ATTORNEY
,i'
-
Sep tuber 21, 1994
Page - 4 -
ASSISTANT C ATTOR l
W RREN BITTNER^-1
( SISTANT CITY ATTORNEY for z �01�
CHRISTOPHER F. KURTE'
ASSISTANT CITY ATTORNEY
a n i-) . ,
THERESA GIRTEN it
ASSISTANT CITY ATTORNEY
DAVID Z. STONE
(�J'
ASSISTANT CITY TORNEY
i
Reviewed as to Content and Proposal:
OVFRANK K. ROLL SON, DEPUTY CHIEF
CHIEF OF RISK MANAGEMENT
M007/DOF/kd/mis
►1 , c 0 AI Lim