HomeMy WebLinkAboutR-92-0544r
4,6
J-92w-551
7/ 2 3/ 5 2 RESOLUTION NO. 9 2- 5 4 4
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO CARMEN AND LAZARO SUAREZ,
AS PARENTS AND GUARDIANS OF DANETTE SUAREZ,
THE SUM OF $25,000.00, WITHOUT THE ADMISSION
OF LIABILITY, IN FULL AND COMPLETE SETTLEMENT
OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE
CITY OF MIAMI IN THE ELEVENTH JUDICIAL
CIRCUIT COURT, CASE NO. 91-40410 (13), SAID
PAYMENT TO BE MADE UPON THE EXECUTION OF A
RELEASE RELEASING THE CITY FROM ALL CLAIMS
AND DEMANDS, SAID FUNDS TO BE PROVIDED FROM
THE INSURANCE AND SELF INSURANCE TRUST FUND.
WHEREAS, Carmen and Lazaro Suarez, as parents and guardians
of. Danette Suarez, through counsel, filed a lawsuit against the
City of Miami resulting from an incident that occurred on July
24, 1990 at Shenandoah Park, Miami, Dade County, Florida; and }
WHEREAS, the above claim has been investigated by the Risk
Management Department and the City Attorneys Office and it is
recommended that this claim be settled without admission of
liability for the sum of $25,000.00;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The Director of Finance is hereby authorized
to pay to CARMEN AND LAZARO SUAREZ, as parents and guardians of
DANETTE SUAREZ, the sum of $25,000.00, without the admission o.f
liability, in full and complete settlement of all claims and
demands against the City of Miami in the Eleventh Judicial
CITY COMMISSION
MEETING OF
S E P 1 0 1992
Resolution No.
92- 544
Circuit Court Case No. 91-40410 (13), said payment to be made
upon the execution of a Release releasing the City of Miami from
all claims and demands, said funds to be provided from the
Insurance and Self -Insurance Trust Fund.
Section 2. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this loth day of/ffepe er , 1992.
ATT s
MATTY HIRAI
CITY CLERK
BUDGETARY REVIEW:
4� Lao-p__
1ANO S. SURANA
SI ANT CITY MANAGER
PREP D AND APPROVED BY:
CHRISTOPHER F. KURTZ
ASSISTANT CITY ATTORNEY
CFK/bf/M3078
&roi o/. '66
VIER L . , WARE Z ,
SELF-INSU TRUST FUND REVIEW:
l
SUJAN CHH4211Ar IRECTOR
RISK MAHMEMENVIDEPARTMENT
AS TO FORM AND CORRECTNESS:
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2
92- 544
CITY OF MIAMI, FLORIDA CA=24
INTEROFFICE MEMORANDUM
TO: DATE : FILE :
Honorable Mayor and Members July 23, 1992 J-92-561
of the City Commission SUBJECT : L-91-277
Carmen Suarez, at al.
vs. City of Miami
Case No. 91-40410 (131)
FROM : REFERENCES : - 1-0
A. Q i n J es, III Claim #007/PC 9 08
City At ey L/I: Shenandoah park
ENCLOSURES: D/I: 7/24/90
Attached is a copy of a Request for Settlement Authority
dated July 8, 1992 directed to the City Commission and a Request
for Settlement Authority directed to the Tort Committee dated
May 27, 1992.
Also attached is a proposed Resolution authorizing the
Director of Finance to pay Carmen and Lazaro Suarez, as parents
and guardians of Danette Suarez. The complete evaluation of this
lawsuit is contained in the settlement memorandums dated May 27,
1992 and July 8, 1992. This matter is being brought before the
Commission for final approval due to objections raised by A
Commissioner at the July 16, 1992 City Commission meeting.
This lawsuit went to trial June 8-9, 1992. The jury
returned a verdict against the City of Miami for $25,800.00.
However, the jury also found the minor plaintiff 20% negligent
which results in a net verdict of $20,640.00. Since the
plaintiffs are the prevailing party, they would be entitled to
their taxable costs in addition to the verdict. Plaintiffs are
seeking $3,890.77 in costs which would bring the total judgment
to $24,530.77. Plaintiffs have filed various post -trial motions
attacking the sufficiency of the verdict and requesting a new
trial on the grounds that the jury should not have been allowed
to find the minor plaintiff comparatively negligent and on the
grounds that they should have been allowed more challenges to the
jury during jury selection. However, in lieu of proceeding
forward on these motions and then having to appeal if the motions
are denied, plaintiffs have agreed to accept the total sum of
$25,000.00, inclusive of costs. Conversely, if plaintiffs'
motions are granted, the City would have to appeal with the risk
that the appellate court would order a new trial and a new jury
could return a verdict substantially higher than the one at
issue.
This claim has been investigated by the Law Department and
the Department of Risk Management and both concur that the
settlement as outlined in the July 8, 1992 Request for Settlement
Authority memorandum is in the best interest of the City.
AQJ:CFK:bf:M591 92- 544
attachments
4
r CITY OF MIAMI, FLORIDA
To
INTER -OFFICE MEMORANDUM
Honorable Mayor and Members
of the City Commission
FROM A. Quinn ,J es, III
City Atto ey
DATE July 81 1992 FILE L-91-277
SUBJECT
Carmen Suarez, et al.
vs. City of Miami
Case No. 91-40410 (13)
REFERENCES Claim #007/PC-91-008
L/I: Shenandoah Park
ENCLOSURES. D/I: 7/24/90
REQUEST FOR SETTLEMENT AUTHORITY
Attached is the request for settlement authority in the
above referenced case.
This memorandum is written pursuant to Ordinance No. 10072
which authorizes the City Attorney to approve the settlement of
lawsuits when the amount of the settlement does not exceed
$25,000.00.
This claim has been investigated by the Risk Management
Department of the City and evaluated by me, and we concur that
the settlement of this case as described in the settlement
memorandums is in the best interest of the City.
This case was tried to a jury June 8-9, 1992. The jury
returned a verdict against the City for $25,800.00. However, the
jury also found the minor Plaintiff 20% negligent which reduces
the award by this amount for a net verdict of $20,640.00. In
addition to the judgment, Plaintiffs are entitled to be
reimbursed for their taxable costs. Plaintiffs have filed a
motion requesting costs in the amount of $3,890.77.
Plaintiffs have filed various post -trial motions requesting
a new trial on damages, -a new trial based upon a denial of their
request for additional preemptory challenges of the jury, and
additur (claiming the damages are inadequate based upon the
severity of the injuries and requesting the trial judge to
increase the jury's award). The trial judge deferred ruling on
these motions and suggested that the parties attempt to work out
an amicable agreement. Plaintiffs have now agreed to accept a
total of $25,000.00, which includes taxable costs, in lieu of an
appeal if the trial judge denies their motions. Since the
original verdictplus costs would almost equal this amount,
settlement of $25,000.00 in lieu of the uncertainty of what the
appellate court may do on appeal is highly recommended. Provided
that you express no objections by July 23,' 1992, a check for
Twenty -Five Thousand and 00/100 Dollars ($25,000.00) will be
92- 544 2
4
CITY OF MIAMI, FLORIDA 0
INTEROFFICE MEMORANDUM
To A. Quinn Jones, III, City Attorney
°AT�
and Members of the Tort Committee SUBJECT
CROM Christopher F . Kurt gEFERENCES
Assistant City Attorney
ENCLOSURES
May 27, 1992 L F 1-277
Carmen Suarez, et al.
vs. City of Miami
Case No. 91-40410 (13)
Claim #007/PC-91-008
D/I: 7/24/90
L/I: Shenandoah Park
REQUEST FOR SETTLEM-FIT AUTHORITY
FACTS
On July 24, 1990, Danette Suarez, a minor, was attending
summer camp at Shenandoah Park when she was injured by being
accidently struck in the mouth by a baseball bat swung by a City
Parks' employee. Danette's date of birth is 6/7/79, she is
presently 12 years old and attends the seventh grade, was 11
years old at the time of the incident and was in between the
fifth and sixth grades at the time.
On the above date, Shenandoah Park was having a "pitch, 'zit
and run" contest for the summer campers run by Parks Department
employees. Danette Suarez was in a group of about 15 - 20 other
children and being supervised by Parks' employees Cynthia
Castillo and Roberto Gonzalez. Danette Suarez was "at bat",
attempting to throw the ball up and swing with a bat but kept
missing (Roberto Gonzalez was approximately 90 feet away in the
outfield with a measuring tape to see how far each camper hit the
ball). Seeing that Danette was having difficulty in hitting the
ball, Cynthia Castillo,\ a Recreational Aide, started to show
Danette how to hit the 'ball. According to Cynthia Castillo,
Danette was in front of Cynthia, approximately six feet away,
when'.Cynthia Castillo threw the ball up, swung the bat, missed
the ball and struck Danette in the mouth with the bat. According
to Cynthia Castillo's testimony, in the few seconds that Cynthia
threw the ball up and swung, Danette had walked around in back of
Cynthia without Cynthia realizing that she had done so. This was
confirmed_ by Roberto Gonzalez who testified that he remembers
seeing Danette in front of Cynthia, he looked down to adjust the
tape, and when he looked back up seconds later, saw Danette in
back of Cynthia being struck in the mouth with Cynthia's bat (he
did not see Danette move from the first position to behind
Cynthia). Danette Suarez has testified that she was behind
Cynthia the whole time and was struck in the mouth by the bat
held by Cynthia on Cynthia's back swing, and not on the end of
the owing. Nonetheless, the bat struck Danette in the mouth,
9 2- 544�
CITY OF MIAMI, FLORIDA
INTEROFFICE MEMORANDUM
TO
Honorable Mayor and Members
of the City Commission
FROM A. Quinn , es, III
City Att,o ey
OATE July 8, 1992 FILE L-91-277
sve.iEcr
Carmen Suarez, et al.
vs. City of Miami
Case No. 91-40410 (13)
REFERENCES Claim #007/PC-91-008
L/I: Shenandoah Park
ENCLOSURES. D/ I; 7/ 2 4/ 9 0
REQUEST FOR SETTLEMENT AUTHORITY
Attached is the request for settlement authority in the
above referenced case.
This memorandum is written pursuant to Ordinance No. 10072
which authorizes the City Attorney to approve the settlement of
lawsuits when the amount of the settlement does not exceed
$25,000.00.
This claim has been investigated by the Risk Management
Department of the City and evaluated by me, and we concur that
the settlement of this case as described in the settlement
memorandums is in the best interest of the City.
This case was tried to a jury June 8-9, 1992. The jury
returned a verdict against the City for $25,800.00. However, the
jury also found the minor Plaintiff 20% negligent which reduces
the award by this amount for a net verdict of $20,640.00. In
addition to the judgment, Plaintiffs are entitled to be
reimbursed for their taxable costs. Plaintiffs have filed a
motion requesting costs in the amount of $3,890.77.
Plaintiffs have filed various post -trial motions requesting
a new trial on damages, a new trial based upon a denial of their
request for additional preemptory challenges of the jury, and
additur (claiming the damages are inadequate based upon the
severity of the injuries and requesting the trial judge to
increase the jury's award). The trial judge deferred ruling on
these motions and suggested that the parties attempt to work out
an amicable agreement. Plaintiffs have now agreed to accept a
total of $25,000.00, which includes taxable costs, in lieu of an
appeal if the trial judge denies their motions. Since the
original verdict plus costs would almost equal this amount,
settlement of $25,000.00 in lieu of the uncertainty of what the
appellate court may do on appeal is highly recommended. Provided
that you express no objections by July 23,' 1992, a check for
Twenty -Five Thousand and 00/100 Dollars ($25,000.00) will be
92- 544 3
processed for payment to Carmen and Lazaro Suarez, as parents and
guardians of Nanette Suarez.
AQJtCPKtbftM591
attachment
111
CITY OF MIAMI. FLORIDA
INTEROFFICE MEMOAANDUM
TO A. Quinn Jones, 111, City AttorneypT_
and Members of the Tort Committee
SUBJECT
r
°ROM Christopher F. Kurt gEFE4ENCES
Assistant City Attorney
ENCLOSURES
May 27, 1992 L--`41-277
Carmen Suarez, et al.
vs. City of Miami
Case No. 91-40410 (13)
Claim #007/PC-91-008
D/I: 7/24/90
L/1: Shenandoah Park
REQUEST FOR SETiLEM- 27T AUTHORITY
FACTS
On July 24, 1990, Danette Suarez, a minor, was attending
summer camp at Shenandoah Park when she was injured by being
accidently struck in the mouth by a baseball bat swung by a City
Parks' employee. Danette's date of birth is 6/7/79, she is
presently 12 years old and attends the seventh grade, was 11
years old at the time of the incident and was in between the
fifth and sixth grades at the time.
On the above date, Shenandoah Park was having a "pitch, 'pit
and run" contest for the summer campers run by Parks Department
employees. Danette Suarez was in a group of about 15 - 20 other
children and being supervised by Parks' employees Cynthia
Castillo and Roberto Gonzalez. Danette Suarez was "at bat",
attempting to throw the ball up and swing with a bat but kept
missing (Roberto Gonzalez was approximately 90 feet away in the
outfield with a measuring tape to see how far each camper hit the
ball). Seeing that Danette was having difficulty in hitting the
ball, Cynthia Castillo,\ a Recreational Aide, started to show
Danette how to hit the ball. According to Cynthia Castillo,
Danette was in front of Cynthia, approximately six feet away,
when'•Cynthia Castillo threw the ball up, swung the bat, missed
the ball and struck Danette in the mouth with the bat. According
to Cynthia Castillo's testimony, in the few seconds that Cynthia
threw the ball up and swung, Danette had walked around in back of
Cynthia without Cynthia realizing that she had done so. This was
confirmed by Roberto Gonzalez who testified that he remembers
seeing Danette in front of Cynthia, he looked down to adjust the
tape, and when he looked back up seconds later, saw Danette in
back of Cynthia being struck in the mouth with Cynthia's bat (he
did not see Danette move from the first position to behind
Cynthia). Danette Suarez has testified that she was behind
Cynthia the whole time and was struck in the mouth by the bat
held by Cynthia on Cynthia's back swing, and not on the end of
the swing. Nonetheless, the bat struck Danette in the mouth,
92-r 5445
knocked one front tooth out, and injured the other front tcoth
(these were permanent teeth).
When everybody realized what happened, Fire Rescue was
called as well as the child's parents. The tooth was recovered
and Danette's mother took her immediately to see their regular
dentist, Dr. Steven Lanster ($170.00 paid by City insurance).
Dr. Lanster performed emergency treatment and attached a
temporary crown. Danette sought treatment from other dentists,
namely Dr. Jorge Hernandez, who inserted a permanent crow; and
did a root canal preparation ($333.00), Dr. Rosa Barrera ($130.00
paid by insurance), Dr. Samuel Mozes ($40.00 paid by insurance),
and Dr. Georgina Garcia ($162.00, insurance paid $100.75).
As a result of plaintiff's injuries, Danette was examined by
Dr. Richard Souviron, D.D.S., for an independent medical
evaluation. Dr. Souviron confirmed that Danette's two front
teeth were injured and that the upper right incisor was treated
with a root canal, a post and a porcelain crown restoration. The
other tooth has not yet been treated. Dr. Souviron confirmed
complaints of pain in the upper front teeth and headaches. Dr.
Souviron stated that tooth #8 was treated appropriately with the
root canal, post and porcelain crown restoration and that tooth
#9 is in need of this treatment as well as post and crown
restoration. Dr. Souviron also stated that this treatmen't: is
necessary as a result of the trauma. Dr. Souviron estimates that
future medical treatment will cost approximately $7,000.00 to
$10,000.00 over her lifetime (see reports of Dr. Souviron
attached).
EVALUATION
There is no question that Danette Suarez was accidently hit
in the mouth with a bat swung by a City employee in the course of
the normal activities of the camp. The plaintiffs' Complaint is
straightforward: negligence because of lack of due care.
Liability is adverse to the City. Plaintiffs' attorney fees
confident that he is entitled to a directed verdict on the issue
of liability. However, I believe there exists some comparative
negligence on behalf of the minor plaintiff. - This depends on
whether the jury believes that Danette was first in front of
Cynthia Castillo and then walked behind her in the course of a
few seconds or whether she was behind Cynthia the whole time.
Plaintiffs' attorney will be arguing that this would not have
happened if there were more supervisors and if the employees were
better trained in safety procedures. Danette is a pretty little
girl who would make a favorable impression on a jury. At the
most, I foresee a 10% reduction for comparative negligence, if at
all (assuming the judge allows a jury instruction on this issue).
This was a very painful injury and Danette is still suffering the
effects of the injury such as not being able to eat certain
foods, headaches, etc. She is also at a very self-conscious age
and her peers have commented on the appearance of her teeth.- In
� 92- 544
addition, future dental treatment by way of root canals and ^wn
restoration is required. Therefore, based upon these facts and
the traumatic nature of the injury, I am requesting settlement
authority in an amount not to exceed $25,000.00. Trial is
presently set for the two week period commencing June 8, 1992.
APPROVED)DISAPPROVED:
00-7/a�4111 ^ �
R. qu'.nn: J es, II7 Leon M. Firtel
City Atto ey Assistant City Attorney
Charles C . Maya Humberto Hernandez
Chief Assis t City Attorney Assistant City Attorney A.,,,6 L;j
15 c+c a
�,� Ali `��r..�, `1•���J mil//:
// Tien R. Bittnor eresa L. Girten 6-���•C,
ssistant C'ty Attorney Assistant City Attorney.y (,.w.
i} Lt
David F r Stier � •.w•�•� ,�.47.4 Su jan h a, Administrator
Assistat City Attbrney ;, Department of Risk Management
CFR:bf:M559
92- 544
RICHARD Ft. SOUVIRON, b.b.5.
3348 ALMAMiMA CIACLt
COITAL GA8LtS. rLOM10A 33134
TELSWMONC (309) 448.1177 .- .
April 29, 1992
Mr. Christopher Kurtz
Office of the City Attorney
Suite 300
300 Biscayne Blvd. Way
Miami, rL 33131
RE: DANETTE SUAREZ
Court case No. 91-40410 (07)
Date of Incidents 7-24-90
Dear Mr. Kurtz,
On April 22nd, 1992, 1 had an opportunity to perform an
Independent Medical Evaluation at your request on Danette
Suarez, a 12 year old female. Prior to this examination, I
had an opportunity to review medical records and x-rays from
her previous treating doctors. They are Dr. Jorge Hernandez,
Or. Stephen M. Lanster, Dr. Georgina Garcia, Dr. Sam Mozes
and Dr. Rosa Barrera.
HISTORY
Ms. Danette Suarez, accompanied by her mother, states that
while playing at Shenandoah Park on July 24th, 1990, she was
struck in the mouth with a baseball bat swung by a Park
Instructor. Her two front teeth were injured. She has been
to numerous dentists for repair work. Tooth number 8, the
upper right central incisor has been treated with a root
canal,, a post and a porcelain crown restoration. Tooth
number 9, the upper left central incisor, has not been
treated. Ms. Suarez states that she has been told by several
dentists that it needs a root canal, but that they do not
have the money to pay for this treatment. As of this date,
the root canal, post and crown has been completed on tooth
number 8 and no treatment has been rendered to tooth number
9. Her chief complaints are pain in her upper front teeth
and headaches. She describes the headaches as coming on
approximately one time a week. They can vary from moderate
to severe. She is on no medication. She remains on a soft
diet. She has no complaints of a temporonandibular joint
disorder. She is not aware of clicking or popping in her jaw
joints. She gives no history of tinnitis, clogged feeling in
92- 544 Q
2
(con't - Danette Suarez)
her ears or vertigo. Dr. Lanster performed the root canal
therapy on tooth number 8. She was not happy with Dr.
Lanster's care and treatment and has seen several other
dentists (Dr. Hernandet. Dr. Barrera, and Dr. Mozes - a root
canal specialist). She also has been to Dr. Georgina Garcia
for a dental consultation. She states that the only pain
that she has is occasional pain in her upper front tooth.
The other front teeth, namely numbers 6, 7, 9, 10 and 11 are
not painful. She did have bleeding and swelling of her face
at the time of the injury, but has no problems in this area
at the present time. There is no paresthesia to the upper
lip, no scars or other deformities were noted.
CLINICAL EXAMINATION
Temporomandibular joint testing was performed. Stethoscopic
examination of the temporomandibular joints bilaterally
ellicited no sounds. Vertical opening was 40s■ with no
deviation. Palpation of the temporomandibular joints, both
with lateral and intrameatal palpation, ellicited no pain.
Muscle testing by means of palpation also ellicited no pain.
Patient has a malocclusion with a class I on the right and a
class II on the left. There is anterior crowding and Ms.
Suarez is in need of orthodontic care. Panoramic x-ray as
well as six transcranial films were taken. The six
transcranial films were within normal limits and no fractures
were noted to the condyle or condylar process. Vertical
opening is within normal limits. Panoramic x-ray shows
retention of deciduous teeth in areas number 11 and 13.
Tooth number 9 has not been root canaled, but shows what
appears to be an area of internal resorbsion. The upper
anterior teeth were x-rayed with a more detailed periapical
x-ray and this indeed shows what appears to be an area of
internal resorbsion. Vitaloseter testing was performed with
an electrical tester. Normal response was noted on tooth
number 10, a delayed response on tooth number 7. No response
was noted to either teeth number 8 (as expected with root
canal therapy) or tooth number 9.
OPINION
It is,sy opinion that Ms. Danette Suarez suffered a traumatic
injury to her maxillary anterior teeth. Tooth number 8 has
10
92- 544
t
(con't - Danette Suarez)
been treated appropriately with root canal. post and
porcelain crown restoration. Tooth number g is in need of
endodontic treatment as well as post and crown restoration.
This treatment is necessary as a result of trauma. He.
Suarez also needs dental treatment in the form of orthodontic
care and extraction of deciduous tooth numbers 11 and 13.
This additional treatment is non -accident related.
If you have any questions or require additional information,
please do not h itate to contact me.
A
Sin e 1
e-'Ri and R. Souviron, D.D.S.
RRSsdra
92- 544
1� s
RICHARD R. SOUVIRON. O.O.S.
May 21, 197?' ,
REi DANETTE SUAREZ
Date of Accidents
Addendum Report
Dear Hr. Kurtz,
234 ALMAMiRA CIRCLt
CORAL CADLtt IrLORIDA 32134
ttLt'MONt ISOM A&I IH9
Hr. Christopher Kurtz
Assistant City Attorney
Suite 300
300 Biscayne Blvd. Way
Miami, FL 33131
7-24-90
It is my opinion, as expressed on page 3 of.my narrative
report to you of April 29th, 1992, that Ns. Danette Suarez is
in need of additional care to her front teeth. The root canal
therapy, post and crown necessary on tooth number 9 should be
approximately the same charge as on tooth number S. According
to the records, a charge of $425.00 was billed by Dr. Hoses
for the work on tooth number S. However, I believe that that
fee did not include the crown and the post work. The standard
in the community would be approximately $1,009.00 for these
procedures, root canal, post, core and crown. This is
assuming the root canal and crown on number 9 are successful.
However, should tooth number 9 be lost as a result of the
internal resorbsion, then a three unit bridge would need to
be constructed. Again, I defer to the doctors that were going
to be treating as to their fees for crown and bridge work.
According to the records, her Cigna dentist charged in 1991,
$235.00 for a crown. Therefore, based on these figures, a
three unit bridge would cost approximately $700.00. Crown and
bridge work lasts on the average of 8 to 10 years. Therefore,
crown replacement every 10 years for the remainder of her
life would be considered within reason.
A reasonable dental estimate for necessary care now and care
t into the future for a life expectancy of approximately 80
years of age, would be $7,909.99 to $10,000.00.
If you have any q •tions or require additional information,
�g please do,not he tate to contact ■e.
Sincere
L777777!��!�
Richard"R: Sodwiron, D.D.B.
RRSsdra 92_ 544
13