HomeMy WebLinkAboutR-90-0714i
J-90-757
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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
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TTLtot.�
NATTY HIRAI _
CITY CLERK
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Septem� y , 1990.
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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
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14ATTY HIRAI
CITY CLERK
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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.
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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
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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 �
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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
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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-,-
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