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HomeMy WebLinkAboutR-92-0015C J-92-41 12/17/91 RESOLUTION NO. 9 2 +- -I. 5 A RESOLUTION AUTHORIZING THE DIRECTOR OF FINANCE TO PAY TO LEONEL DIAZ LEON AND DOLORES LEON, WITHOUT THE ADMISSION OF 1 LIABILITY, THE SUM OF $50,000.00 IN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI AND OFFICER TOM LAURA, IN CIRCUIT COURT CASE NO. 89-7343 (CA 27), UPON THE EXECUTION OF A GENERAL ' RELEASE RELEASING THE CITY OF MIAMI AND OFFICER TOM LAURA FROM ANY AND ALL CLAIMS AND DEMANDS, FUNDS TO BE PROVIDED FROM THE INSURANCE AND SELF-INSURANCE TRUST FUND. WHEREAS, Leonel Diaz Leon and Dolores Leon, through their attorneys, filed a claim and lawsuit against the City of Miami and Officer Tom Laura, in the Circuit Court of Dade County, Florida, Case No. 89-7343 (CA 27), for alleged assault and ,t battery, malicious prosecution, violation of civil rights and -:i loss of consortium, arising out of an automobile stop involving an off -duty City of Miami police officer, Tom Laura, on February 28, 1987, at or near Interstate 195 near North Miami _ k Avenue, Miami, Dade County, Florida, and WHEREAS, the above claim and lawsuit has been investigated l by the Torts Division .of the City Attorney 's Office and the 4 Office of Risk Management pursuant to Ordinance No. 8417, which created the City of Miami's Insurance and Self -Insurance Program l and said Office recommends that this claim and lawsuit be settled s. for the sum of $50,000.00; i NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: f j Section 1. The Director of Finance is hereby authorized to pay Leonel Diaz Leon and Dolores Leon, his wife, forthwith, I without the admission of liability, the sum of $50,000.00 in full Iand complete settlement of any and all claims and demands against i the City of Miami and Officer Tom Laura, in Circuit Court Case No. 89-7343 (CA 27), upon the execution of a general release in a form acceptable to the City Attorney, releasing the City of Miami and Officer Tom Laura from all claims and demands; said money to be provided from the Insurance and Self -Insurance Trust Fund. Section 2. This Resolution shall immediately upon its adoption. PASSED AND ADOPTED this 9th i SELF-INSURANCE UST FUND REVIEW: 3 SUJAN CHHA , DIR CTOR OFFICE OF ISK GEMENT n r, day of Ja become effective XAVIER L , 1992. -2- 9 2 -- 15 �i c BUDGETARY REVIEW: MANOHAR S. SURANA ASSISTANT CITY MAN ER PREPARED AND .APPROVED BY: EN BITTNER STANT CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: A. • QU NN E , I I I CITY ATT EY WB/sls/M2703 i x -3- "' 3 e 4� CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM � CA- = 15 J-92-41 TO Honorable Mayor and Members DATE December 17, 1991 FILE. L-89-045 of the City Commission SUBJECT Resolution Authorizing Settlement with Leon Case No. 89-7343 (CA 27) cROM A. uinn nes, III,. `U REFERENCES City At ney City Commission Agenda ENCLOSURES. January 9, 1992 (2) Attached is a proposed Resolution authorizing the Director of Finance to pay Leonel Diaz Leon and Dolores Leon, his wife, without admission of liability, the sum of $50,000.00, in full and complete settlement of any and all claims and demands against the City of Miami and Officer Thomas Laura, upon the execution of a General Release of All Claims, releasing the City of Miami and Officer Thomas Laura 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 sustained injuries in an incident with a City of Miami police officer, in which the officer is alleged to have used excessive force in extricating plaintiff from his automobile. This claim has been investigated by the Tort Committee and the Office of Risk Management, and is hereby recommended by this Office. AQJ/WB/sls/P1248 attachments 92- 15 CA /S -1 i Irk. CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO Members of the Tort Committee DATE December 4, 1991 FILE L-89-045 SUa,ECT Leonel Leon vs. City & Officer Tom Laura ' D/I: February 28, 1987 FROM Warren Bittner �-r -�-_, REFERENCES Miami, Florida Assistant City..etorney Claim #015/PT-88-125 ENCLOSURES REQUEST FOR SETTLEMENT AUTHORITY AND AUTHORITY TO PROCEED TO TRIAL STATUS This case is presently set for trial beginning the two -week period commencing December 9, 1991. The case will be going to mediation this Thursday, December 5, 1991. FACTS: On February 28, 1987, at approximately 4:30 p.m., Officer Tom Laura, while off -duty driving his private vehicle, but in full uniform and on his way to an off -duty job at Bayside, was driving southbound on I-95. At about 79th Street, a large van in front of and to the left of Officer Laura erratically swerved and hit Officer Laura's vehicle on the left front bumper smashing a light. The van then swerved back the other way striking Officer Laura's vehicle on the right side. Officer Laura accelerated alongside the van's right side and motioned to the driver (the plaintiff) to pull over. The plaintiff, sighting the officer, "stepped -on -it" and "took -off" down I-95 at a high rate of speed. Officer Laura requested assistance via his police radio advising of a hit and run driver. At the junction of I-195 (Julia Tuttle Causeway going east to the beach) and SR 112 (going west to the airport), the plaintiff swerved across several lanes of traffic and exited onto I-195 in an unsuccessful attempt to lose Officer Laura. Officers Mosher and Tuttle, hearing that the hit and run driver had exited I-95 at I-195 going east, proceeded to come to Officer Laura's assistance. Officer Mosher entered I-195 eastbound from Miami Avenue, placed himself in front of traffic, and stopped and blocked traffic. Officer Tuttle had entered I-195 at Miami Avenue going westbound and observed plaintiff's van entering I-195 - eastbound from the I-95/I-195 overpass. When Officer Tuttle saw the van he recalls it becoming "boxed -in" by police cars; one in front, one on the side and one in back, which forced plaintiff's • vehicle to come to a stop. f-) Members of the Tort Committee December 4, 1991 Page Two Officer Laura, parking alongside of and to the rear of the van in a traffic lane, exited his private vehicle and approached the van from the rear together with Officer Tuttle. Upon reaching the van, Officer Laura opened the door and told Plaintiff to get out. The plaintiff was reportedly belligerent and was yelling something to Officer Laura in Spanish when Officer Mosher approached too. Each officer testified they believed plaintiff was under the influence based upon a distinct odor of alcohol, plaintiff's blood shot eyes, his slurred speech and his violent demeanor. As Officer Tuttle withdrew to move Officer Laura's car out of traffic, Officer Mosher witnessed Officer Laura being kicked in the chest by the plaintiff. Officer Laura then grabbed plaintiff's left arm with both hands to pull him out of the van, upon which plaintiff threw a punch at Officer Laura with his right fist which struck him on the top of his head. Officer Laura then struck the plaintiff in the face (probably more than once) with his right fist and pulled plaintiff out of the car. Plaintiff landed on his back in the roadway. Officer Laura handcuffed plaintiff's left arm, and Officer Mosher the right, after which no further force was used. While waiting for a transporting unit to arrive, and while plaintiff was seated (handcuffed) on the rear bumper of the van, he jumped up and kicked a glass containing what his wife later admitted was a glass of whiskey and Pepsi Cola. Plaintiff has testified that he routinely drinks for his circulation per "doctor's orders". A short time later, the transporting Officers, Gil and Lopez, arrived and plaintiff was placed in the back of their patrol car for transport to Ward D. Plaintiff resisted getting in the car. Officer Gil related that plaintiff appeared "upset, sweating and had an odor of alcohol on hia breath". Immediately thereafter, Sgt. Jeff Turner responded to the scene reference a control of persons report. Plaintiff was already subdued, handcuffed and seated in the back seat of the marked unit when he arrived. Sgt. Turner related that plaintiff "reeked of alcohol" and was slightly incoherent. Sgt. Turner determined that Officer Laura had conducted himself within departmental guidelines. Plaintiff was charged with: (1) battery upon a police officer; (2) DUI; (3) leaving the scene of an accident; (4) resisting with violence; and (5) careless driving. 92` 15 y AWA Members of the Tort Committee December 4, 1991 Page Three SUBSEQUENT CRIMINAL PROSECUTION: 1. Battery on a Police Officer - After several continuances were requested by the defendant (Leonel Leon), the charge of battery on a police officer was dismissed for lack of prosecution (all officers except Officer Laura showed up and the Court denied the State's motion for continuance). Officer Laura had appeared three times before. 2. Resisting Arrest with Violence - No action was taken by the State Attorney on the charge of resisting with violence. 3. puS - This charge was DDI grossed by the State Attorney because the plaintiff's blood analysis came back .09 and there was no video to otherwise establish the charge. 4. Leaving the Scene of the Accident - On this charge the accused was found nal guilty. 5. Careless Driving - On this charge the accused would found guilty. As the photographs of plaintiff show, plaintiff sustained numerous facial bruises of the face and back as well as bruises, scrapes and "road burns" of his left arm, shoulder and leg. Plaintiff claims that he sustained a fracture of the left elbow and a trauma injury to his back at the time. Although x-rays taken at Jackson Memorial Hospital's Ward D were negative for fractures or dislocations, x-rays subsequently taken by Dr. Pedro Alonso at Cedars were read by him to indicate a fracture of the left elbow, i.e., a fracture of olecranon process. Dr. Alonso applied a cast for 90 days. �1 Members of the Tort Committee December 4, 1991 Page Four Plaintiff was also treated by Dr. Rigoberto Padilla for pain in his low back. 1,7he plaintiff suffered from a pre-existing spondylolisthesis secondary to osteoarthritic changes at L4-L5, which he claims is now aggravated. Plaintiff first saw Dr. Padilla on November 11 1982 (almost 5 years pre - incident), where he was repeatedly treated for his low back complaints. Dr. Padilla suggested he wear a girdle permanently at that time. He discontinued treatment in May of 1985 (about two years before the incident) until May of 1989, when Dr. Padilla took x-rays and saw the patient one time concerning his back problem. Dr. Neal performed an IME on plaintiff for these problems on November 13, 1990, and concluded that he had no permanent impairment in accordance with the American Medical Association's Guide for Permanent Impairment. For these miscellaneous problems, directly related to the incident, plaintiff accumulated medical bills in the amount of $2,765.40. B. LEFT FOOT On March 30, 1990, over three years following the incident at issue in this case, plaintiff sought treatment from Dr. Alan Shader, a podiatrist. He complained of pain and swelling in the left foot which he claimed he has had for over 2 years. Dr. Shader localized the pain at the plantar aspect of the 1st metatarsal and diagnosed a bone infection. Dr. Shader found an ulcerative lesion under the 1st metatarsal which plaintiff indicated was present for 2 days. The ulcer was caused by a metatarsal plantar flexion (the 1st metatarsal was lower than the rest). Surgeries were performed on 4/12/90, 5/11/90, 7/13/90 and 7/20/90 to remove infected bone. During his deposition, Dr. Shader indicated that one possible cause of a metatarsal flexion could be trauma and that the trauma could have occurred years earlier. Finally, plaintiff sought the advice of an orthopedic surgeon, Dr. John Bowker, of the University of Miami, who performed the last surgery on January 22, 1991, which was successful. Dr. Bowker noted on March 18, 1991, that the plaintiff had virtually no pain in the left foot at that time. -11 Spondylolisthesis: forward displacement of a lumbar vertebra on the one below it producing pain by compression of the nerve roots. 92-- 15 0 Members of the Tort Committee December 4, 1991 Page Five When later examined by Dr. Neal for a 2nd IME, specifically for the foot, on May 29, 1991, plaintiff complained of almost constant pain and numbness in his left foot. Dr. Neal concluded that the plaintiff had a 15% permanent disability of the left foot secondary to infection and gout, but did not feel that the left foot complaints were related to the incident. Plaintiff's medicals for the foot are $78,362.29. Plaintiffs' present demand is for $107,500.00, which is inclusive of the wife's loss of consortium claim. Plaintiff has claims against the City for excessive force, and for assault and battery only. Against Officer Laura individually, plaintiff, Leonel Leon, has claims for violation of civil rights under Section 1983, excessive force, assault and battery, and malicious prosecution. Loss of consortium claims by the wife are lodged against both defendants. Our chief witness, Officer Tom.Laura, is presently relieved of duty, pending a criminal charge of perjury arising out of an unrelated and subsequent alleged police brutality case. Plaintiffs' counsel is seeking to introduce this incident into evidence to show similar conduct on the part of Officer Laura. My efforts to resist plaintiffs' discovery into this incident met with deaf ears before Judge Capua, the presiding judge. I believe he will allow this incident into evidence, even though it will severely prejudice the defendants. The trial on Officer Laura's criminal prosecution is presently set for February 11, 1992. Based upon the facts of Officer Laura's present status and the almost shocking photographs of plaintiff, Leonel Leon, I believe that an offer of up to $50,000.00 should be made in this case. I do not believe that plaintiff's association of his foot injury to this incident is wholly realistic and opposing counsel recognizes the severe causation problem. 9 2 i-- I N Members of the Tort Committee December 4, 1991 Page Six Nevertheless, if the jury finds a violation of civil rights through excessive force, which I believe they will, plaintiff will also be entitled to attorney's fees, which will be significant since we have deposed numerous doctors, witnesses and prepared for trial at least twice in the past. APPROVED/DISAPPROVED - Settlement of up to $50,000.00. KA Q NN JONE , III City Attorney RAFAEL O. DIAZ Deputy City Attor'Rey CHARLE . MAYS Chief As istant City Attorney M. FIRTE sistant City Attorney CHRISTOPHER F. R RTZ Assistant City ttorney Assistant City Attorney kz 0�j V -6 THERESA L. GIRTEN Assistant City Attorney MICHAEL MISLER Liability Supervisor