HomeMy WebLinkAboutR-85-0246t
i
J-85-215
2/27/8 5
RESOLUTION NO. 85-246.
A RESOLUTION AUTHORIZING THE DIRECTOR OF
r FINANCE TO PAY TO ROBERT LINCOLN THE AMOUNT
OF SEVEN THOUSAND FIVE HUNDRED DOLLARS
($7,500.00), WITHOUT ANY ADMISSION OF
LIABILITY, IN FULL AND COMPLETE SETTLEMENT OF
ALL BODILY INJURY, PERSONAL INJURY,
PROTECTION LIENS, CLAIMS, DEMANDS AGAINST THE
CITY OF MIAMI AND UPON THE EXECUTION OF A
RELEASE RELEASING THE CITY FROM ALL CLAIMS
AND COUNTER CLAIMS AND DEMANDS.
WHEREAS, Robert Lincoln filed a claim against the City of
Miami through his attorney, Rick G. Ciravolo for the alleged
negligence, false arrest and violation of his civil rights,
resulting from an incident involving two City of Miami Police
Officers on September 6, 1982, at 2121 North Bayshore Drive,
Miami, Dade County, Florida, and;
WHEREAS, the above claim has been investigated by the Torts
Division of the City Attorney's Office pursuant to Ordinance No.
8417, which creates the City of Miami's Self -Insurance Program
and the said office recommends that this claim be settled for the
sum of Seven Thousand Five Hundred Dollars ($7,500.00);
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 Robert Lincoln the sum of Seven Thousand Five Hundred
Dollars ($7,500.00) in full and complete settlement of all bodily
injury, personal injury protection liens, property damage claims,
claims and demands against the City of Miami upon execution of a
release releasing the City of Miami from all bodily injury,
personal injury protection liens, property damage claims, claims
and demands.
PASSED AND ADOPTED this 21st day of April , 1985.
EST: a
Ole
RALPH G. ON IE
City Clerk
Maurice A. Ferre
AURI E A. FERRE
MAYOR
CITY COMMISSION
MEETING OF
MAR 21 1985
104 ,%Q.
4
4
PREPARED AND APPROVED BY:
MARIA J. CEt -RO n
Assistant City Attorney
APPROVF.E'AS TOAORM AND CORRECTNESS:
-LVl.1C'f LVVV
City Attorney
LAD/GC/MJC/wpc/ab/108
2
85--246
I
3
CITY OF MIAMI. FLORIDA
INTER -OFFICE MEMORANDUM
1�
TO
Honorable,tiaurice A. Ferre and
PATE February
20, 1985
FILE PT-82-06 &
L-83-46
Members f City Commission
SUSJECT Lincoln
v. City of
Miami,
Krasner
& Kendrick
�i
Circuit
Court Case
#83-7183
FROM
Lucia A. Dougherty
REFERENCES D/I:
September 6,
1982
City Attorney
L/I:
2121 North Bayshore Drive
ENCLOSURES
Miami, Florida
Request for Settlement Authority
This case involves a 42 year old white man arrested during a
domestic dispute at his home on 2121 North Bayshore Drive. He is
represented by Richard Ciravolo of Ciravolo & Feldman, P.A.. The
amended complaint filed September 15, 1983 against the City of
Miami3Officers Dean Krasner and R. Kendrick alleges negligence,
false arrest and violation of civil rights. Internal security has
sustained a charge of false arrest against Officer Kendrick. This
case is set for trial in April of 1985.
Facts
. On September 6, 1982 Robert Lincoln had attended, with his
girlfriend Denyse Miranda, a charity function at Turnberry Isle
and returned to his home where apparently Lincoln and Miranda had
a disagreement. Possibly Lincoln had struck Miranda and she called
the police. The City of Miami field training officer Kendrick and
rookie Krasner responded to the call.
When the two police officers arrived, Mr. Lincoln was upstairs
in his apartment and Ms. Miranda, her two daughters and one of their
friends were waiting in the lobby. Ms. Miranda explained to the police
officers what had happened and said that she wanted them to get her car
keys so that she could go home. The two police officers went up the
elevator to Mr. Lincoln's apartment. The security guard at the com-
plex had called to inform Mr. Lincoln that the police were on their
way up. As the two police officers left the elevator they saw a man
coming toward them down the hall. Officer Kendrick addressed him as
Mr. Lincoln and Mr. Lincoln responded affirmatively. He was asked
for identification by the officers but was belligerent and refused
to give the identification. All three proceeded to the elevator to
return to the lobby.
Officer Kendrick indicated to Officer Krasner that he had run
into Mr. Lincoln before while Kendrick was a Florida Highway patrol
officer. Kendrick indicated that Mr. Lincoln had given him a rough
time at that incident and was a "bad ass" and should be watched.
All three arrived in the lobby and Officer Krasner stayed with
Mr. Lincoln and Officer Kendrick went to speak with Ms. Miranda again.
After a few minutes, Officer Kendrick came back and told Officer
85-'24+6.
1
4
Honorable Maurice A. Ferre and
Members of the City Commission -2-
Krasner that Mr. Lincoln was under arrest and
take him to the car. Officer Krasner assumed
for disorderly and/or intoxicated conduct in
to do as instructed by Officer Kendrick.
February 20, 1985
to handcuff him and
that the arrest was
public and proceeded
During this time, Officer Krasner had been trying to persuade
Mr. Lincoln to give up Ms. Miranda's car keys. Officer Krasner
began having trouble controlling Mr. Lincoln as they left the lobby
and proceeded toward the police car. Mr. Lincoln, who was over six
feet tall and probably weighed well over 200 lbs., refused to bend
down to get into the police car. Officer Krasner, who is approxi-
mately 516" or 5'8" and maybe 175 or 180 lbs., attempted to bend
Mr. Lincoln over. Officer Kendrick moved in to help. They tried
lifting Mr. Lincoln who was twisting and struggling and finally
dropped him. When they dropped him, his face hit the car door and
he was kicking at them. Because Mr. Lincoln was kicking, the officers
put plastic cuffs on his ankles. To do this they had to put him face
down on the ground, remove his boots and physically hog-tie him. Then
they were still unable to lift him and get him situated in some sort
of position in the car. During this time, Mr. Lincoln was screaming
and yelling, calling for a supervisor. Ms. Miranda was also apparently
beginning to regret calling the police and appeared very upset by Mr.
Lincoln's treatment. Some of the residents from the complex became
alerted to this situation and came to the scene, including the well-
known Claude Pepper, who is a resident of the building. A supervisor
was called to the scene. Sgt. Christopher apparently unarrested Mr.
Lincoln at the complex and went back to his apartment to talk to him
and give him a chance to quiet down. Mr. Lincoln was then taken by
Randle Eastern Ambulance to Cedars of Lebanon Hospital. The medical
report indicates that the Plaintiff had been drinking but does not
identify to what extent, nor do the medical tests reflect this.
Also on the scene soon after this matter were Paul Weber, Claims
Supervisor and Steven Edelstein, former Assistant City Attorney, who
proceeded to take statements of Ms. Miranda and the three girls with
her. The girls' version of the incident pretty much follows what is
outlined above. Ms. Miranda has apparently recanted on her story and
feels that the police used too much force and that she did not want
Mr. Lincoln arrested. One of the security people at the residence,
who left that apartment's employ soon after, said that Mr. Lincoln
appeared to have provoked the situation and that he did not see any
officer strike Mr. Lincoln. Also, he did not see the incident with
Ms. Miranda. The other security guard, who probably still works at
the residence, will probably say that Mr. Lincoln did not resist arrest
but that the police were overly rough.
Officer Kendrick was antagonistic and defensive when Internal
Security Officer Luis Gonzales took his statement concerning this
matter on October 25, 1982. He has since left the City of Miami
police force to join the police force in Orlando, Florida. Officer
Krasner left the police force before completing his six months proba-
tionary term apparently from pressure which started from this incident
and kept increasing until he finally resigned. He is currently seeking
employment with the Metro Dade Police Department but they have indicated
that they will not take him on staff until this matter has been resolved.
8S-246
.1
Honorable Maurice A. Ferre and
Members of the City Commission
-3- February 20, 1985
Officer Krasner will make a fairly good witness in that he is con-
servative in his testimony, but he does appear young and probably
strong -headed.
Damages
The medical bills submitted by Lincoln's attorneys are as follows:
1) Cedars of Lebanon Health Care Center, reports and bill in the
amount of $309.65.
2) Randle -Eastern Ambulance Service, bill in the amount of $83.00.
3) Brian Steingo, M.D., reports and bills in the amount of $355.00.
4) C.L.G. Neurodiagnostics, bills in the amount of $666.00.
5) City of Miami Fire Rescue report.
6) Drs. Feltman, Worton & Keusch, bill in the amount of $34.00.
While most of the bills were for diagnostic procedures, there were
sutures involved on Lincoln's cheek. He still suffers from post
concussion syndrome, that is persistent headaches with severe pain
episodes and occasional loss of memory.
Evaluation
The Plaintiff's attorney had initially demanded $25,000 in order to
resolve this matter. In that Internal Security of the Police Department
had sustained a claim of false arrest against Officer Kendrick, the dam-
ages for false arrest are going to include physical injury, mental pain
and suffering and damage to reputation. Considering Lincoln's position
in the community (as more specifically spelled out in the request for
settlement authority), the damage to his reputation may not be insigni-
ficant. Although the two police officers were smaller and weighed less
than Lincoln, it is probable that a jury will find the police could
have used verbal persuasion or less excessive force in placing Lincoln
in a police car and may interpret the police officers actions as exces-
sive. There is no documented loss of wage but the Plaintiff does pro-
motions for charity events and is self employed.
Since the Plaintiff's attorney has not provided me with documented
loss of wage I have steadfastly maintained that I would offer no more
than $7,500 to settle this case. The Plaintiff's attorney has agreed
to accept a set amount and I recommend settlement of any and all claims
of Robert Lincoln against the City and against Officers Kendrick and
Krasner for $7,500.
This claim has been investigated by the City Attorney's Office in
accordance with Ordinance Number 8417, which created the City of Miami's
Self -Insurance Program.
The City Attorney's Office recommends that the City of Miami pay
on behalf of itself the sum of $7,500 to settle this claim and the
85rZ46>
CITY OF MIAMI. FLORIDA
INTER -OFFICE MEMORANDUM
70 TFILE
Jose R. Garcia -Pedrosa, and AE May 26, 1983 PT-82-OE
Members of the Torts Committee & L-83-46
SG6JECT Lincoln v. City of Miami,
Krasner & Kendrick
Circuit Case # 83-7183
FROM / REFERENCES
ulia J. Roberts D/I: September 6, 1982
Assistant City Attorney ENCLOSURES: L/I: 2121 North Bayshore Drive
Miami, Florida
Request for Settlement Authority and/or Denial
Ot Defense
This case was filed on March 3, 1983 and involves an incident
that occurred on September 6, 1982. Plaintiff did not allege
compliance with Florida Statute Section 768.28 notice and
therefore I have filed a Motion to Dismiss on behalf of the City.
I have not yet appeared on behalf of the police officers, though
both have been served but Plaintiff's attorney has indicated he
will amend his complaint before I need to answer for the
officers. Because this case involves an alleged false arrest and
because Internal Security has sustained a charge of false arrest
against one officer, I believa we should attempt an early
resolution of this matter.
Facts
Robert Lincoln, 42 years old at the time of this incident, is
represented by Gary Kalos of Ciravolo and Feldman, P.A. On the
night of the incident, Mr. Lincoln had been at a Turnberry Isle
charity function for which he had handled the promotion or
advertising. He was with his girl friend Denyse Diane Miranda,
who had two young teenage daughters with her and one of their
friends. Mr. Lincoln and his date had had a few drinks at the
charity function, which had been an all day affair involving a
softball game and subsequent dinner. Then they returned to Mr.
Lincoln's home at 2121 North Bayshore Drive. Apparently, Mr.
Lincoln and Ms. Miranda were having a disagreement and ids.
Miranda requested her keys from Mr. Lincoln so that she could
drive herself and the girls back to her home in Palm Beach. Mr.
Lincoln refused and a slight scuffle ensued in the lobby of the
residence complex. Mr. Lincoln appears to have struck Ms.
Miranda once or so on her arm and to have bruised her arm by
grabbing her roughly. Ms. Miranda called the police and City of
Miami field training officer Kendrick and rookie Krasner re-
sponded.
When the two police officers arrived, Mr. Lincoln was upstairs in
his apartment and Ms. Miranda and the three girls were waiting in
85r246
Jose R. Garcia -Pedrosa and -2- May 26, 1983
Members of the Torts Committee
the lobby. Ms. Miranda explained to the police officers what had
happened and said that she wanted them to get her car keys so
that she could go home. The two police officers went up the
elevator to Mr. Lincoln's apartment. The security guard at the
complex had called to inform Mr. Lincoln that the police were on
their way up. As the two police officers left the elevator they
saw a man coming toward them down the hall. Officer Kendrick
addressed him as Mr. Lincoln and Mr. Lincoln responded offirma-
tively. He was asked for identification by the officers but was
belligerent and refused to give the identification. All three
proceeded to the elevator to return to the lobby.
Officer Kendrick indicated to Officer Krasner that he had run
into Mr. Lincoln before while Kendrick was a Florida Highway
patrol officer. Kendrick indicated that Mr. Lincoln had given
him a rough time at that incident and was a "bad ass" and should
be watched.
All three arrived in the lobby and Officer Krasner stayed with
Mr. Lincoln and Officer Kendrick went to speak with Ms. Miranda
again. After a few minutes, Officer Kendrick came back and told
Officer Krasner that Mr. Lincoln was under arrest and -to handcuff
him and take him to the car. Officer Krasner assumed that the
arrest was for disorderly and/or intoxicated conduct in public
and proceeded to do as instructed by Officer Kendrick.
Luring this time, Officer Krasner had been trying to persuade Mr.
Lincoln to give up Ms. Miranda's car keys. Officer Krasner began
having trouble controlling Mr. Lincoln as they left the lobby and
proceeded toward the police car. Mr. Lincoln, who was over six
foot tall and probably weighed well over 200 lbs. refused to bend
down to get into the police car. Officer Krasner who is approxi-
mately 516" or 5'8" and maybe 175 or 180 lbs. attempted to bend
Mr. Lincoln over. Officer Kendrick moved in to help. They tried
lifting Mr. Kendrick who was twisting and struggling and finally
cropped him. When they drooped him, his face hit the car door
and he was kicking at them. Because Mr. Lincoln was kicking, the
officers put plastic cuffs on his ankles. To do this they had to
put him face down on the ground, remove his boots and physically
hog-tie him. Then they were still unable to lift him and get him
situated in so►ue sort of position in the car. During this time,
Mr. Lincoln was screaming and yelling, calling for a supervisor.
Ms. Miranda was also apparently beginning to regret calling the
police and appeared very upset by Mr. Lincoln's treatment. Some
of the residents from the complex became alerted to this situa-
tion and came to the scene, including the well-known Claude
Pepper, who is a resident of the building.
BS-246
Jose R. Garcia -Pedrosa and -3-
Members of the Torts Committee
May 26, 1983
A supervisor was called to the scene. Sgt. Christopher apparent-
ly unarrested Mr. Lincoln at the complex and went back to his
apartment to talk to him and give him a chance to quiet down.
Mr. Lincoln was then taken by Randle Eastern Ambulance to Cedars
of Lebanon Hospital. The medical report indicates that the
Plaintiff had been drinking but does not identify to what extent,
nor do the medical tests reflect this.
Also on the scene soon after this matter, were Paul Weber, Claims
Supervisor and Steven Edelstein, former Assistant City Attorney,
who proceeded to take statements of Ms. Miranda and the three
girls with her. The girls' version of the incident pretty much
follows what is outlined above. Ms. Miranda has apparently
recanted on her story and feels that the police used too much
force and that she did not want Mr. Lincoln arrested. One of the
security people at the residence, who left that apartment's
employ soon after, said that Mr. Lincoln appeared to have
provoked the situation and that he did not see any officer strike
,;Ir. Lincoln. Also, he did not see the incident with Ms. Miranda.
The other security guard, who probably still works at the
residence, will probably say that Mr. Lincoln did not resist
arrest but that the police were overly rough.
Officer Kendrick was antagonistic and defensive when Internal
Security Officer Luis Gonzales took his statement concerning this
.matter on October 25, 1982. He has since left the City of Miami
police force to join the police force in Orlando, Florida.
Officer Krasner left the police force before completing his six
months probationary term apparently from pressure which started
from this incident and kept increasing until he finally resigned.
He is currently seeking employment with the Metro Dade Police
Department but they have indicated that they will not take him on
staff until this matter has been resolved. Officer Krasner will
rake a fairly good witness in that he is conservative in his
testimony, but he does appear young and probably strong -headed.
Damages
Plaintiff's attorney has forwarded me some medical bills and
reports in this matter. As mentioned earlier, Mr. Lincoln was
transported by Randle Eastern Ambulance at the cost of $83.UO to
Cedars of Lebanon. At Cedars of Lebanon he was checked out in
the Emergency Room where x-rays were taken and the laceration on
85-246.
k_J
�r�
Jose R. Garcia -Pedrosa and
Members of the Torts Committee
-4-
May 26, 1983
his right cheek bone was sutured. At that time he complained of
tenderness and pain in the right wrist, loose teeth, head pains
and tenderness in the left ribs. He returned on September loth
to have the sutures removed.
The x-rays at Cedars of Lebanon were $34.00.
He was also seen by Dr. Brian Steingo, who performed a neuro-
logical examination at the cost of $275.00 on September 7, 1982.
Mr. Lincoln's complaints were of constant headaches and numbness
in the right hand but no nausea or vomiting with the headaches.
He also complained of some neck stiffness and discomfort. There
was a suture and laceration below his right eye. There was
swelling and contusion below the left eye. Scratches were noted
on the forehead region. There was some tenderness in the
cervical muscles with a slight limitation of movement. There was
complaint of tenderness over the left ribs. The doctor diagnosed
a closed head injury with post concussion syndrome. He was
referred for an EEG and skull x-rays which were all normal. Mr.
Lincoln returned to Dr. Steinqo on October 6th complaining of
persistent headaches with severe pain episodes in the right
frontal region with the occasional loss of memory. The neuro-
logical examination was within normal limits but the doctor did
find some post traumatic headaches. He gave him a prescription
for percodan and asked him to return in four weeks. I do not
have any further medical reports. The bill for the second visit
was $80.00. The bill for the EEG and x-rays was $666.00.
Claimant's
medical bills known
to date
total approximately
$1,447.65.
Please note that most
of these
bills were diagnostic
procedures
such as x-rays and EEG's
instead
of actual treatment.
Evaluation
Plaintiff's attorney has relayed to me a demand of $25,000.00 in
order to resolve this case. At this time, Plaintiff has not
stated a Section 1983 count but he may bring it in as part of his
Amended Complaint. Of more importance, is the fact that the
Internal Security Department at police station has determined and
sustained a claim of false arrest against Officer Kendrick,
clearing Officer Krasner. Damages for false arrest are going to
include physical injury, mental pain and suffering, and damage to
reputation. In this situation, considering Mr. Lincoln's
position in the community, as exhibited by his acquaintance with
Representative Pepper and his position as promotional manager for
1�
85-246
0
Jose R. Garcia -Pedrosa and
Members of the Torts Committee
0
-5- May 26, 1983
a Turnberry charity event, and based upon the fact that at least
some of his associates were made aware of this incident through
t
means other than his publication of the facts, damage to his
reputation may not be an insignificant factor in this case. We
j
do not have documented loss of wages but we do have some documen-
tation as to injury. There was a facial laceration, there was
obvious swelling and discoloration on the other eye, there was
tenderness found on the ribs, pain in the neck and loose teeth.
The second claim of excessive force is probably borderline. The
claim should be more negligence on the part of the police
officers and the conduct they used. Quite frankly, these two
police officers were smaller with less weight than the Plaintiff.
It is quite probable that a jury will find that the actions they
took to restrain Plaintiff and place him in the police car were
uncalled for and that they should have called for assistance or
used verbal persuasion, instead of trying to physically manhandle
Plaintiff into the police car.
Finally, we need to consider whether or not the Field Training
Officer Kendrick should be cut loose on this action. It is
possible that Officer Kendrick, remembering his initial contact
with Mr. Lincoln, drew more from his conversations with Mr.
Lincoln and Ms. Miranda at the scene of this second incident and
assumed that he had more evidence than he actually had, there-
fore charging Mr. Lincoln with aggravated battery instead of a
,more minor charge such as public intoxication or disorderly
conduct. Although I believe Officer Kendrick's actions could be
construed by a jury as being willful, wanton and malicious in his
reaction to Mr. Lincoln, I do not believe that there is enough
evidence as to that to make it impossible for the City to defend
Officer Kendrick in this instance. I believe it is necessary at
this point in the case to make an initial and probably final
decision as to whether or not to represent Officer Kendrick.
Once we undertake the defense of the officer, if we later decide
to cut him loose, it will be necessary to obtain outside counsel
for both the City of Miami and the officer in order to avoid
unethical conflict of interest. Therefore, please advise whether
we should deny a defense to the police officer at this time, and
probably run the risk of picking up his attorney's fees from
private counsel at a later date, or whether we should defend him
throughout the case, pending the possible development of more
substantial evidence against him.
85-24G
Jose R. Garcia -Pedrosa and -6- May 26, 1983
Members of the Torts Committee
The Plaintiff's demand for possible settlement of this claim is
$25,000.00. I feel the Plaintiff's demand is high, especially
concerning Plaintiff's medicals. On the other hand, I do believe
that we are probably making an admission against interests when
Internal Security releases its findings indicating that Officer
Kendrick falsely arrested Mr. Lincoln. In my opinion, we should
target a final settlement of this case at $15,000.00 and make an
initial offer of $10,000.00. Therefore, I request settlement
approval up to $15,000.00 in order to settle this case at this
time before further costs are spent on discovery.
APPROVE/DISAPPROVE as to the amount of settlement authority and
APPROVE/DISAPPROVE the denial of a defense df th police officer
specifically. 4� /
�•/f"eAl fry ,� • s�
Jose R. Garda-Pedrosa"Richard-A. Graddock
Gisela Cardonne -'` A bertine B. Gmith
i� L'i �r0L- %`�O L Ili jj A tN Gk A/-.' h z A14,-, 9 D At,-
IO/'!JL ft I�/�7/�►r ��' hlotr/C. ds}c�.cl2%%7✓�3''�G,arb e!'%d,,+Yv
Leon M. Firte Paull Heber T
Insurance Supervisor
JJR/wpc/ab/216
$6000.00 6-13- $13 ,eft
85-24f