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HomeMy WebLinkAboutR-90-0714i J-90-757 13 If RESOLUTION NO. 9 0— 71,4 A RESOLUTION AUTHOR12ING THE DIRECTOR OF tZMANCE TO PAY TO EV'ELYN ROVELLO BERNARD, WI NOUT ADMISSION OF LIABILITY, THE SUN OF $60,000 IN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI UPON THE EXECUTION OF A RELEASE RELEASING THE CITY OF MIAMI FROM ANY AND ALL CLAIMS AND DEMANDS. WHEREAS# Evelyn Rovello Bernard, through her attorney, has filed a claim against the City of Miami in the Circuit Court of Dade County, Florida, Case No.: 88-32061 CA 21)arising out of an incident which occurred on September 1, 1987; and WHEREAS, the above claim has been investigated by the Torts Division of the City Attorney's Office pursuant to Ordinance No. 8417, which created the City of Miami's Self -Insurance Program, and said Office recommends that this claim be settled for the sum of $60,000; 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 Evelyn Rovello Bernard, without the admission of liability, the sum of $60,000 in full and complete settlement of any and all claims and demands against the City of Miami, upon the execution of a release, releasing the City of Miami from all claims and demands, said money 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 27th day of A TTLtot.� NATTY HIRAI _ CITY CLERK f Septem� y , 1990. r SUAREZ, 4R +L:IT3t CO BO _ZMMGOF SEP X 10 ovum P RESOLUTION NO. 9 0 714 A . RESOLUTION AUTNORIZING TOE DIRECTOR OF i�I1tC8 TO PAY , TO RVELY14 ROVELLO 88W4ARD, WI —ROUT ADMISSION OF LIABILITY, THE SON OF $8O,CdO YN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI UPON THE EXECUTION OEM' A RELEASE LEASING THE CITY OF MIAMI FROM ANY AND ALL CLAIMS AND DEMANDS. WHEREAS, Evelyn Rovello Bernard, through her attorney, has filed a claim against the City of Miami in the Circuit Court of Dade County, Florida, Case No.: 88-32061 CA 21)arising out of an incident which occurred on September 1, 1987; and WHEREAS, the above claim has been investigated by the Torts Division of the City Attorney's Office pursuant to Ordinance No. 8417, which created the City of Miami's Self -Insurance Program, and said Office recommends that this claim be settled for the sum of $60,000; 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 Evelyn Rovello Bernard, without the admission of liability, the sum of $60,000 in full and complete settlement of any and all claims and demands against the City of Miami, upon _ the execution of a release, releasing the City of Miami from all 3 claims and demands, said money 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 27th day of a te4o� 14ATTY HIRAI CITY CLERK • MMLI�W •/, i�f M�F1 f' taw _ i Otis — fit C lk CITY .. ._ MET OF , SEP 8'y :7 1# q - 5 � M1715/CCM/bjr -" 2- a t- M�n may: { P} a 4} k- 1` r CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Honorable Mayor and Members DATE of the City Commission ,. SUBJECT August 28, _1990 FILE: Resolution Authorizing SettJe ment with Rvelyn Rovello Bern, � Circuit Case No.88-32061 CA 21. FROM , 'J 4 Fernandez REFERENCES C ty A othey ENCLOSURES : ( 2 ) Attached is it resolution authorizing the Director of Finance to pay to Evelyn Rovello Bernard, without admission`.of liability, all the sum of $60,000 in full and complete settlement•or any=and claixa. and demands against the City of Miami,: upon :the execut3:on all. claims and ... of` a _Release, releasing the .City from any and demands. Evelyn Rovello Bernard, through her attorney. filed .a Circuit lawsuit for damages against the City of Miami. in the ooting ah,ich sh- Court of Dade County, arising out of an accidental 1, 1987. This claim . has been; investioita a — occurred on September City Attorneys Office puxsuanto by the Torts Division of the which the City of .Miami's::3S�e�f- ordinance No. 8417 created as set forth in the attached memoranaumf insurance Program, and this Office recommends that the claim be settled for the sum of { -- $60,000. P1357/JEp/CCM/bjr _ 1 > t t ikt C`� Q r#, %R may, �; rli.^..w�✓ y s 4:n S i!i•' z} � yt �i ii b r =� i.. a G � } r¢ CITY OF MIAMI, FLORIDA , INTER -OFFICE MEMORANDUM_ Ta. Members of the Torts Committee FROM Charles C. Mays Cd#A Assistant City Attorney DATE : August 9, 1990 FILE L-gs�li- SUBJECT . Evelyn Rovello Bernard V. City of Miami# etc. � Case No. 88-32061 CA 21 D/1: September 1, 1987 REFERENCES: L/I: Northwest 44th Avenue ENCLOSURES: and 7th Street REST [++OR SE"MEMENT AUTHORITY The Incident On September 1, 1987, an off duty City police officer was n the of alerted to a melee involving several teens ile approaching ers 7th Street. While a the Northwest 44th Avenue and of the disturbance the officer obserust theescene the. scene arriving combatants discharge a revolver. Upon ar g instructed'. the offenders to lay on.: • ...officer. drew his -hand- gun and `tne did The officer"then stopped thii street= they so. itnessedthe Evelyn Rovello Bernard and inquired whether she had w the officer fight. Having responded in the affirmative, that he couMld ob�gn instructed her to remain on the scene so to complete his police report. ep information from her control. se zc-f other police officers arrived on the scene and took the offenders. The initial responding officerbegan-- the -offenders to locate the pistol an automobile used by one of had discharged as he approached the scene.. The off.eer that located the pistol in the rear seat. The pistol in question was unusual: the grips were from an from a CaliberSmith; .32 g it Revolver, ho11 wever the barrel was has testified deposition that, he ha0.. Wesson. The officer never seen such a gun and that to him the gun was, "weird." The by the,, officer attempted to make the gun safe removing To do so, the officer had to remove from the chamber. index pinj which would cause the cylinder to ,41sen9O9,d fry attempting., o d4 . so the body of the gun. While the officer was . the causing the plaintiff who was a few."#lep The pieta'X"discharged,' away from the officer to be shot in the left shoulder. bullet broke her left collar bone. The officer claims that he did not have his finger.on theN does trigger at the time the gun discharged* He ; not The plaintiff did not see the 9�ft .in' ��►!� S : the hammer was cocked • do�►aldl�,: Officer's hand before she was accidentally ahot�. to ,r iver0, an independent witness who Was staadinq i seat- hewer WAS 00ci ed n plaintiff=, has, testified that the officer attempted to remove the bu�'llet$ from the � s ,- t 1 v *.at t; a � y g FL. 2t a y # a r din A �t s k Members of the Torts Committee August 9, 1090s` Page -2- Y_ { 51 .V The pistol was tested by the Metro -Dade firearms section and by a Miami Police Department firearms expert and it was concluded that (1) the pistol was in good working order, and (2) that there is a pin inside of the pistol that prevents a discharge unless` ` the trigger is -pulled. . The officer has also testified that the pistol was pointed down toward the street when it discharged. He suggests that the bullet must have ricocheted off the street and then struck the plaintiff. That suggestion is inconsistent with the medical testimonywhich shows that the bullet entered plaintif:f's ► shoulder on a lateral line. x: Liability • , -:; ' y Plaintiff, through her attorney Dennis Moulton, has sued he- R6> City for negligence asserting, among other theories, that the officer failed to clear civilians from the scene before attempting to unload the gun, and that the officer failedto point the gun toward the ground as he attempted to unload it Deposition testimony of a Miami Police Department firearms trainer establishes that officers are trained not to handle ^r,, f irearms that they are not familiar with. The officer invoWed. herein has admitted that he was not familiar with the gun 'in_ question. The Firearms Review Board concluded that the officer4' carelessly caused the discharge of the pistol which resulted in an reprimand and the forfeiture of 80 hours of earned overtime. }5 Negligence is the failure to use reasonable care under the attendant circumstances, which results in foreseeable injury. The. City's duty of care to the plaintiff is heightened under the' s circumstances of this case because she was instructed to remain on the scene to assist a police officer. As such, uhder :the decisional law, the plaintiff had a "special relationship"_ with q �� the. City. See lartaft v. Milliard, 468 So.2d 936 (Fla. I'M ,m "~ Negligence can easily be estai s ed*. There is no lawful bass; for comparative negligence. . r$tsfw'r•r Damages • , M Plaintiff was hospitalised at Jackson Memorial Hosp#tal.fo►f eight clays, incurring $3,651.00 in medical expenses. After:.+mr discharge from J148o the bullet was removed approximately . V" 1/2 month later at Baptist Bospital by her private phya ciaut� �, a Richard Levitt. Prior to the removal of the bulled 640mi', �< 11 1a_. incurred the services of or. Bush Acton when she had t+a } f t 7 l` __ x y A% August 91 1990 Members of the Torts Committee Page -3- South Miami Hospital emergency room for an onset of pain- In addition to Drs. Sokolowicz and Dozenp she had been undergoing psychological counseling by Dr. Leslie Mate, a psychiatrists for A- used by the shooting. in totalt she has rassion and anxiety caused es t- h it I - in medical expenses,, and Dr. Mate op incurred $12,844 anti -depressant she.- will need additional counseling and of $3r5OO. Finally,plaintiff approximate cost medications at an approx: .$2,,500. loss of approximately has a verified wage Recommendation it Plaintiff has agreed to settle this lawsuict inr fa or 000Of Based upon the probability of a directed verd unusual circumstances of this caser plaintiff for negligence, the the medical bills, I recommend that this case be settled for and $ 000. 601-,- Wsk yF