HomeMy WebLinkAboutR-85-0143tA
J-85-136
1/29/85
RESOLUTION NO. 85--143
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO CHARRON V. ADKINS THE SUM
OF TEN THOUSAND DOLLARS ($10,000) WITHOUT THE
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 COUNTERCLAIMS AND
DEMANDS.
WHEREAS, Charron V. Adkins filed a claim aqainst the City of
Miami through his attorney Alan Sackrin for alleged bodily
injuries and pain and suffering and future medical expenses and
property damage resulting from an automobile collision with a
vehicle owned by the City of Miami and operated by one of its
employees in the course and scope of the employee's duties, on
July 14, 1983, at the intersection of N.W. 29th Street and North
Miami Avenue, Miami, Florida; and
WHEREAS, the above claim has been investigated by the Torts
Division of the City Attorney's office and in accordance with
Ordinance No. 8417 which created a City of Miami self-insurance
program, the City Attorney's office together with the Risk
Management Division of the Finance Department recommend that this
claim be settled, without the admission of liability, for the sum
of Ten Thousand Dollars ($10,000);
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 Charron V. Adkins the sum of Ten Thousand Dollars
:-
($10,000), without the admission of liability, in full and
s
complete settlement of all bodily injuries, past and future
claims, personal property damage claims, and expenses,
counterclaims demands against the City of Miami, from all bodily
injuries past and future claims, expenses, counterclaims and
CITY COMMISSION
MEETING OF
FEB 114196 A
WN No. 05-143
REMARKS.
PASSED AND ADOPTED this __141h "Y of Pebri�Ar� - i
1905.
MAURICE A. FERRET Mayo`
"'6,Tt;
ST:
G. ONGIE
Clerk
PREPARED AN APPROVED,,BY:
ONARIA CARNESOLTAS
tant City Attorney
APPROVEM
AND CORRECTNESS:
LUCIAA.
45
City Attorney
AMC/wpc/mm/206
CITY OF MIAMI. FLORIDA
L
INTER -OFFICE MEMORANDUM
TO The Honorable Mayor and
Members of Citv Commission
FROM Lucia A. Douqherty
City Attorney
January 29, 1985 "IF
Charron V. Adkins v.
City of Miami
Case #84-5614
D/A: Julv 14, 1983
Location: NW 29th St.,
of the intersection of
No. Miami Avenue
Charron V. Adkins, through his attorney, Alan Sackrin, filed
an action against the City of Miami to recover damages for
injuries received and for property damages incurred when he
collided with a unmarked City of Miami Police Department
automobile. The accident occurred at 12:47 a.m. on July 14, 1983
at the intersection of N.W. 29th Street and North Miami Avenue.
The accident occurred when the City of Miami vehicle, traveling
west on N.W. 29th Street entered the intersection apparently
against the red light. Mr. Adkins, who was driving an automobile
which was traveling north on North Miami Avenue was unable to
stop his car on time to avoid colliding with the City of Miami
vehicle. The Adkins vehicle was a total loss.
As a result of the accident, Mr. Adkins sustained an injury
to his right wrist and knee. He was seen by Dr. Frederick V.
Seley and Dr. Stephan S. Wender. Dr. Wender, who gave Mr. Adkins
on April 25, 1984 a permanent partial disability of the body as a
whole of 5%. Dr. Arturo Ortiz conducted an independent medical
examination of Mr. Adkins on October 19, 1984. Given the
information available to Dr. Ortiz at the time of the
examination, he indicated that he could not give any permanent
partial impairment rating within reasonable medical probability.
However, he did indicate that the complaints that Mr. Adkins had
were not inconsistent with the diagnosis rendered by Dr. Wender.
His total medical bills were $1,700.
As indicated before, the Plaintiff's car was a total loss.
It was appraised at $2,700. He also incurred the expenses of
towing, $31.00, and rental of a substitute car, $333.00. The
total amount of loss wages for Mr. Adkins resulting from this
accident was $1,000.
The Plaintiff's attorney made a demand from the city of
$25,000. He has agreed to accept $10,000. from the city in
settlement of all personal injury and property damage claims.
This claim has been investigated by the City Attorney's
Office in accordance with Ordinance No. 8417, which created the
City's Self -Insurance program. The City Attorney's Office
recommends that the City of Miami pay $10,000. in settlement of
this claim.
AMC/mm 8S-143
cc: City Clerk
City Manager
CITY OF MIAMi, FLORIDA
INTER -OFFICE MEMORANDUM
To Honorable Mayor Maurice Ferre DATE
and Member _of�the City Commission
SUBJECT:
FROM Lucia Dou erty REFERENCES.
City Attorney
ENCLOSURES.
January 21, 1985 FILE:
Status and Disposition
of Litigation
In an effort to keep you fully informed as to the disposi-
tion of cases in the City Attorney's Office, the following status
report has been prepared to update our memorandum of October 23,
1984:
1. Marshall Frey v. City of Miami, et al.
Eleventh Judiciali6dicial Circuit Court Case No• -10686
On October 10, 1982, the plaintiff, while on a motorcycle,
collided with a barricade set up approximately 10 feet south of
the intersection of Florida Avenue and Mary Street, Coconut
Grove. The barricade was placed by the Coconut Grove Bicycle
Race Association and expert testimony revealed that the placement
of the barricade did not conform to the State and Federal
department of Transportation standards. There was testimony that
the police department never advised the race officials as to
proper placement of the barricade, and additionally, there was
testimony that there were both on -duty and off -duty police
officers in the area during the time of the incident.
This case was tried before a jury starting November 26 through
November 28, 1984, before the Honorable George Orr. The jury
returned a verdict of $150,000 total damages to plaintiff, with
50% comparative negligence attributable to plaintiff, and 50%
comparative negligence to the sponsors of the bicycle race. The
City of Miami obtained a defense verdict.
This case was prepared and tried by Richard L. Druks, Assistant
City Attorney.
2. Gregory Walker v. City of Miami, Officer John Rack and
Officer Ro ert Miller
Eleventh Judicial Circuit Court Case No. 81-1071
Plaintiff, Gregory Walker, sued the City of Miami and the two
85-143
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Honorable Mayor Maurice Ferre and January 21, 1985
Members of the City Commission Page 2
individual police officers for assault and battery, excessive
force, negligent supervision, hiring and retention, failure to
provide police protection, intentional infliction of emotional
distress, and violation of civil rights. These allegations
included claims for compensatory and punitive damages.
Upon the Defendant's, City of Miami, motion all counts were
dismissed by the Honorable Donald Stone. Since the fact that the
applicable Statute of Limitations has run, plaintiff is now
barred from proceeding forever.
Defense in this case was handled by Richard L. Druks, Assistant
City Attorney.
3. William Bostic_ v_. _C_ ity of Miami, Officer William Hill and
Officer R. Casti to
UgiEga States District Court, Southern District Case No. 84-0956
Plaintitff, William Bostic, sued the City of Miami and the
individual police officers for violation of civil rights, assault
and battery, and false arrest. Plaintiff claimed the police
violated his constitutional rights by illegally entering his
home, illegally conducting a search and seizure, and beating him
about the face'and body.
Upon defendant's motion to dismiss the complaint, the Honorable
James W. Kehoe dismissed it and it is now anticipated that
plaintiff will not be able to refile and proceed due to the time
constraints of the applicable Statute of Limitations.
This case was assigned to and handled by Richard L. Druks,
Assistant City Attorney.
4. Jorge_& _Doris Martinez-v.-City of Miami
The plaintiff's van was struck by a City of Miami Solid Waste
Department truck that was backing up into an intersection. The
plaintiff did not appear to be injured at the scene of the
accident. The next day, however, he began seeing Dr. Oscar
Rodriguez who later referred him to Dr. Pedro Musa-Ris. Both
Doctors testified in depositions that the plaintiff suffered of
post traumatic head injury syndrome, which included complaints of
headaches and dizzy spells.
85- JL43
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Honorable Mayor Maurice Ferre and
Members of the City Commission
January 21, 1985
Page 3
One month after the accident the plaintiff fell in the driveway
of his brother's home and dislocated his right shoulder. He
claimed to have fallen as a result of suffering a dizzy spell.
Shortly thereafter, he moved out of state and was treated by Dr.
Marc Adlen in Pennsylvania. Dr. Adlen testified in deposition
that as a result of the shoulder dislocation the plaintiff was no
longer able to work in his usual employment as plumber.
An independent medical examination was made by Dr. Arturo Ortiz.
Dr. Ortiz also found that shoulder dislocation to be a disabling
injury, which may require surgery to prevent future dislocations.
None of the doctors gave plaintiff an impairment rating.
Since at the time he suffered the dislocation the plaintiff had
been taken by a Metro -Dade Rescue Unit to the emergency services
at Coral Reef Hospital, both the rescue and hospital records were
obtained. They disclosed that the plaintiff claimed to have
dislocated his shoulder while getting out of a parked jeep. At
trial both the emergency room physician and rescue officer
testified that they would have asked the patient why he fell and
if he had indicated it was due to a dizzy spell their records
would so reflect. The doctor further testified that he would have
conducted a number of additional tests if the plaintiff had told
him he had suffered a dizzy spell.
The plaintiff claimed to have suffered damages, past and future,
in the form of lost wages and household services ranging from
$200,000 to over $500,000. This was testified by an economist.
After three hours of deliberations the jury found the plaintiff
80% negligent and the City 20%. The total damages were
established by the jury to be $13,320.20. The City's share is
$2,664.04. (Ana Maria Carnesoltas handled the trial).
5. Edilio Hernandez, and Sheldon Cohen v. Cit of Miami and
Herbert Breslow, as Chiet ot Police.
E event Judicia Circuit Case No. 84-44772.
Plaintiffs sued the City as a consequence of Mr. Hernandez'
arrest for selling non-food items in the downtown Restricted
Vending District.
85--JL43
Honorable
Mayor
Maurice Ferre and
January 21, 1985
Members of
the
City Commission
Page 3
One month after the accident the plaintiff fell in the driveway
of his brother's home and dislocated his right shoulder. He
claimed to have fallen as a result of suffering a dizzy spell.
Shortly thereafter, he moved out of state and was treated by Dr.
Marc Adlen in Pennsylvania. Dr. Adlen testified in deposition
that as a result of the shoulder dislocation the plaintiff was no
longer able to work in his usual employment as plumber.
An independent medical examination was made by Dr. Arturo Ortiz.
Dr. Ortiz also found that shoulder dislocation to be a disabling
injury, which may require surgery to prevent future dislocations.
None of the doctors gave plaintiff an impairment rating.
Since at the time he suffered the dislocation the plaintiff had
been taken by a Metro -Dade Rescue Unit to the emergency services
at Coral Reef Hospital, both the rescue and hospital records were
obtained. They disclosed that the plaintiff claimed to have
dislocated his shoulder while getting out of a parked jeep. At
trial both the emergency room physician and rescue officer
testified that they would have asked the patient why he fell and
if he had indicated it was due to a dizzy spell their records
would so reflect. The doctor further testified that he would have
conducted a number of additional tests if the plaintiff had told
him he had suffered a dizzy spell.
The plaintiff claimed to have suffered damages, past and future,
in the form of lost wages and household services ranging from
$200,000 to over $500,000. This was testified by an economist.
After three hours of deliberations the jury found the plaintiff
80% negligent and the City 20%. The total damages were
established by the jury to be $13#320.20. The City's share is
$2,664.04. (Ana Maria Carnesoltas handled the trial).
5. Edilio Hernandez, and Sheldon Cohen v. Cit of Miami and
Herbert Bres ow, as ChiefChlef 6f Po ice.
EleveRtS Judicial Circuit Case No. 84-44772.
Plaintiffs sued the City as a consequence of Mr. Hernandez'
arrest for selling non-food items in the downtown Restricted
Vending District.
85-143
Honorable Mayor Maurice Ferre and January 21, 1985
Members of the City Commission Page 4
Under the provisions of Ordinance No. 9880, passed and adopted by
the City Commission on September 13, 1984, a specified large —
portion of the downtown central business district is designed
Restricted Vending District. The Ordinance regulates the types of goods and the locations from which these goods may be sold on
the sidewalks within the Restricted Vending District.
Plaintiff, Edilio Hernandez, was arrested when he attempted to
peddle his wares in contravention of the Ordinance. As an
immediate consequence of the arrest, the Plaintiff sued the City
challenging the constitutionality of the ordinance on equal
protection grounds, and sought a Temporary Restraining Order and _
Declaratory Judgment. -
After an Emergency Hearing before Circuit Court Judge Phillip
Knight December 5, 1984, the Court ruled for the City, holding
that the Plaintiff had not met his burden of overcoming the
presumption of validity that attaches to a properly enacted
ordinance. _
On December 6, 1984, the Plaintiff requested a re -hearing and the
Court again ruled for the City finding that:
a. The City had made a temporary showing of a —
rational basis for making a distinction between
types of activities which may be conducted on
public right-of-ways.
b. The protection and facilitation of streets and
sidewalks of the congested downtown central
business district is within the purview and ambit
of the City of Miami's Police Powers, inasmuch as -
it promotes the health, safety and welfare of
users of said streets and sidewalks.
c. That the promotion of activities designed to
promote tranquility, appearance and well-being of
the streets and sidewalks was a valid exercise of
the police powers.
d. The City had shown that Ordinance 9880's
distinction between types of goods which could be
85-143
Honorable Mayor Maurice Ferre and
Members of the City Commission
January 21, 1985
Page 5
sold was a reasonable exercise of its police
powers because it protected pedestrians from
problems caused by the two types of economic
activities.
The Court, however, reserved jurisdiction for a full and complete
hearing to determine if Section 39-17(a) of Ordinance 9880, which
prohibits the sidewalk sale of any goods in the central business
district other than food and fresh cut flowers, was reasonable
and not arbitrary and formed a rationale relationship to the
achievement of legitimate governmental interest.
On December 12, 1984, a full evidentiary hearing was held before
the Honorable Joseph P. Farina to determine if in fact there was
a constitutionally accepted rational basis for the City's actions
in permitting sidewalk activity of one type on the streets and
sidewalks of the City to the exclusion of other types of
activity.
On January 2, 1985, Judge Farina ruled for the City, denying the
Plaintiffs' Motion for Temporary Restraining Order and
Declaratory Judgment.
The case was assigned to and handled by Joel E. Maxwell,
Assistant City.Attorney.
6. William S. Anderson, et al. V. City of Miami
United States District Court, Southern District of Florida, Case
No. 84-1835-Civ-Atkins
Plaintiffs in this case filed a complaint raising allegations of
reverse employment discrimination relating to promotional
— practices in the City of Miami Department of Fire, Rescue and
Inspection Services. The City of Miami filed a Motion to Dismiss
which was granted by the Court. In dismissing this suit the
Court held that the claims alleged were in effect an
impermissible collateral attack on the consent decree entered by
Judge Kehoe in U.S.A. v. City of Miami, Case No.
75-3096-Civ.-JWK, United States District Court, Southern District
of Florida.
This case was assigned to and handled by A. Quinn Jones, III,
Deputy City Attorney.
85-JL43
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Honorable Mayor Maurice Ferre and
Members of the City Commission
January 21, 1985
Page 6
7. Tigertail Association, Inc., and the Coconut Grove Civic
Club,_ __ Inc. , vs. South Florida Regional P o _anning-Cunci � Grove
Say P aza, Ltc3., and t iHe -City of'Miamis
Circuit Court Case No. 85-00486.
The Plaintiff sued the City and other Defendants in a complaint
for Emergency Injunctive Relief in an effort to halt hearings
before the South Florida Regional Planning Council on
"Terremark," a proposed Development of Regional Impact in the
Coconut Grove Area, and to prohibit the City Commission from
conducting scheduled Public Hearings on the issuance of a Major
Use Special Permit and Development Order at its scheduled meeting
of January 24, 1985.
It was Plaintiffs' contention that Florida Administrative Code
Provisions pertaining to public participation in the Development
of Regional Impact process had not been complied with; that
Public Agency Defendants had not notified the public of the
receipt of the Notice of Filing of the Application for Develop-
ment Approval, and the net effect of the aforementioned actions
constituted a violation of the Florida Sunshine Law.
After an emergency hearing before the Honorable Judge Mario
Goderich, the Court ruled for the City and the Developers, and
denied the Plaintiffs' request for a Temporary Restraining Order.
The Plaintiffs then appealed Judge Goderich's decision to the
Third District Court of Appeal and sought additional relief in
the form of an Emergency Petition for Writ of Prohibition. The
Third District Court of Appeal upheld Judge Goderich's Order and
refused to issue the Writ of Prohibition.
This case was assigned to and handled by Joel E. Maxwell,
Assistant City Attorney.
B. Joseph Robbie, et al vs. City of Miami
Supreme Court Case No. 6 - 39.
The Florida Supreme Court granted certiorari in this case with
oral argument scheduled for March 8.
85-14u-
Honorable Mayor Maurice Ferre and January 21, 1985
Members of the City Commission Page 7
9. South Florida Literary vs. City of Miami
The Third District reversed the Circuit Court which had ruled in
favor of the City. We will ask the Florida Supreme Court to
review the decision of the Third District which requires expert
testimony to prove that material is obscene in injunction actions
against stores which sell magazines and movies of such ilk.
10. Swift v. City of Miami
This case was a false arrest case where the arresting police
officer was no longer with the department, presented a very bad
appearance and was very difficult to get a hold of during the
preparation for trial. The jury returned a $50,000.00 verdict in
favor of the Plaintiff. We have appealed the decision to the
Third District Court Appeal.
11. Amoco v. City of Miami
The Third District Court of Appeal has denied our Petition for
Writ of Commonlaw Certiorari to that court to review the over—
turning of this Commission's actions in preventing Amoco from
remodeling their gasoline. There are no further appeals availa—
ble and the City has to abide by the Court's ruling.
12. Williams and Hampton v._City of Miami and William R. Smith
This case was a sexual harassment and civil rights case filed
against a former City employee and the City as his employer. The
City employee filed a cross claim against the City and the
Plaintiffs for conspiracy and civil rights violation. The City
filed a cross claim for indemnity against the employee. After a
two week jury trial in federal court, the jury found for the
= Plaintiffs on all counts against William R. Smith and issued an
advisory opinion as to the Title VII claim against the City as
the employer. In William R. Smith's cross claims against the
City and the Plaintiffs the jury found for the City and the
Plaintiffs.
The judge ruled in the City's favor on the civil rights complaint
and has not ruled as of yet on this Title VII matter.
85-143
January 21, 1985
Honorable May Maurice Ferre and page 8
Members of the City Commission
13. Forfeiture
1, 1984 to December 1, 1984, the City of Miami
From January suant to forfeiture
obtained the following monies and property pur
proceedings:
$620,017.00 in U.S. currency
17 motor vehicle
2 boats
5 Units Radio Equipment
27 Firearms
2 Calculators
1 Tape Recorder
116 pieces Sterling Silver
($3,000.00 est. value)
Pending forfeiture cases include:
$633,704.00
35 motor vehicles
7 guns
4 boats
Radio Receiving Equipment
GC/wpc/ab/057
cc: City Manager
City Clerk
85-143