HomeMy WebLinkAboutR-84-1411J-84-1166 1
RESOLUTION NO.84--1411
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO PMINELIA HUGARTE THE SUM
OF SIXTEEN THOUSAND DOLLARS ($16,000.00),
WITHOUT THE ADMISSION OF LIABILITY, IN FULL
AND COMPLETE SETTLEMENT OF ALL BODILY INJURY,
PERSONAL INJURY PROTECTION LIENS, WORKER'S
COMPENSATION LIENS, CLAIMS AND DEMANDS AGAINST
THE CITY OF MIAMI, AND UPON EXECUTION OF A
RELEASE RELEASING THE CITY OF MIAMI FROM ALL
CLAIMS AND DEMANDS.
WHEREAS, Minelia Hugarte, through Barry Stein, Esq., of
Levine, Busch, Schnepper & Stein, P.A., her attorneys, filed
a claim against the City of Miami for alleged bodily injury,
personal injury protection liens, Worker's Compensation liens,
and other claims and demands, resulting from a motor vehicle
accident wherein Minelia Hugarte was a passenger in a motor
vehicle involved in an accident on June 1, 1981, at the inter-
section of Southwest 2nd Street and Southwest loth Avenue, in
Miami, Dade County, Florida, where the stop sign controlling the
intersection was concealed by a tree which was allegedly planted
by the City, on the City right-of-way at Southwest 2nd Street
where it intersects with Southwest loth Avenue; and
WHEREAS, the above claim has been investigated by the Torts
Division of the City of Miami Law Department in accordance with
Ordinance No. 8417, which created the City of Miami's Self -
Insurance Program,and the Risk Management Division of the Finance
Department together with the Law Department recommend that this
claim be settled, without the admission of liability, for the
sum of Sixteen Thousand Dollars ($16,000.00);
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
CITY COMMISSI
MEETING OF
DEC lap�
DN No._84—:L4
11
Section 1. The Director of Finance is hereby authorized
to pay to Minelia Hugarte the sum of Sixteen Thousand Dollars
($16,000.00), without the admission of liability, in full and
complete settlement of all bodily injury, personal injury pro-
tection liens, Worker's Compensation liens, claims and demands,
against the City of Miami, upon execution of a release releasing
the City of Miami from all bodily injury protection liens,
Worker's Compensation liens, and all claims and demands.
PASSED AND ADOPTED this 13th day of DECEMBER
MAURICE A. FERRE
MAURICE A. FERRE
MAYOR
A TES
RALPH G. ONGIE ••
CITY CLERK
PREPARED AND APPROVED BY:
4�
ALBERTINE F. SMITH
ASSISTANT CITY ATTORNEY
APPROVED T0,,POTMIAND CORRECTNESS:
LUCIA A. DOUGHERTY
CITY ATTORNEY
-2-
, 1984 .
84-1411
W
I T
1t4TFR-�?FFICF- �."Ef..1C)f->Af�lC�lJF�1
r, Honorable M or and Members November 29, 1984 CL-82-057
of the Ci Commission L-83-124
71
Minelia Hugarte vs. City of Miami
and Metropolitan Dade County
OOP D/A : June 1, 1981
Lucia A. Dougherty 6., L/I: Intersection S.W. 2nd Street
City Attorney and S.W. 10t Avenue
y y Miami, Florida
(Resolution)
Plaintiff, Minelia Hugarte, filed a claim against the City of Miami
and Metropolitan Dade County through her attorney, Barry Stein, of
Levine, Busch, Schnepper & Stein, P.A., to recover for personal
injury received by Minelia Hugarte when the car in which she was a
passenger was involved in an intersection accident in the City of
Miami, which occurred because the stop sign controlling the inter-
section was concealed by a tree and could not be seen by the driver
of the car.
The accident occurred on June 1, 1981, at about 3:30 P.M., when the
car in which Mrs. Hugarte was a passenger was travelling west on
S.W. 2nd Street and did not stop at the loth Avenue intersection.
Although there was a stop sign facing the car in which Mrs. Hugarte
was a passenger, the sign was completely obscured by a short tree
that had been planted by the City of Miami as a part of a Little
Havana Community Development Project completed in April, 1981. The
car went through the intersection and was struck by another car
travelling north on S.W. loth Avenue.
Upon impact, Mrs. Hugarte was thrown head first from the back seat
to the front seat and back again, fracturing five of her ribs and
breaking the front seat of the car in the process. She also banged
her head on the dashboard and bruised her left shoulder, her neck,
and her chest. She was transported to Jackson Memorial Hospital by
Randall -Eastern ambulance where she was treated in the Emergency
Room. The following day, June 2, 1981, she was admitted to Inter-
national Medical Center suffering severe pain. She remained at
International Medical Center for a period of five days and was
treated by Dr. Aida M. Rodriguez, an orthopedic surgeon. After Mrs.
Hugarte's release from International Medical Center, she continued
treatments with Dr. Rodriguez who, in her final evaluation of Mrs.
Hugarte on March 11, 1982, gave Mrs. Hugarte a six percent (6%)
permanent impairment based on the injuries received from the 1981
accident. The evaluation was based on continuing tenderness and
pain in the right rib cage, neck, head, and shoulder. Dr. R. Scott
Piper, who conducted a medical examination of Mrs. Hugarte on
84-1411
JTY QF= MIP, VI r �_<_`�IGA
INTTER-OFFICE. MENIC)RANDUfAl
Honorable M or and Members
of the Ci Commission
F:
Lucia A. Dougherty
City Attorney
November 29, 1984 CL-82-057
L-83-124
Minelia Hugarte vs. City of Miami
and Metropolitan Dade County
D/A: June 1, 1981
L/I: Intersection S.W. 2nd Street
and S.W. loth Avenue
Miami, Florida
(Resolution)
Plaintiff, Minelia Hugarte, filed a claim against the City of Miami
and Metropolitan Dade County through her attorney, Barry Stein, of
Levine, Busch, Schnepper & Stein, P.A., to recover for personal
injury received by Minelia Hugarte when the car in which she was a
passenger was involved in an intersection accident in the City of
Miami, which occurred because the stop sign controlling the inter-
section was concealed by a tree and could not be seen by the driver
7l
of the car.
The accident occurred on June 1, 1981, at about 3:30 P.M., when the
car in which Mrs. Hugarte was a passenger was travelling west on
S.W. 2nd Street and did not stop at the loth Avenue intersection.
Although there was a stop sign facing the car in which Mrs. Hugarte
was a passenger, the sign was completely obscured by a short tree
that had been planted by the City of Miami as a part of a Little
Havana Community Development Project completed in April, 1981. The
car went through the intersection and was struck by another car
travelling north on S.W. 10th Avenue.
Upon impact, Mrs. Hugarte was thrown head first from the back seat
to the front seat and back again, fracturing five of her ribs and
breaking the front seat of the car in the process. She also banged
her head on the dashboard and bruised her left shoulder, her neck,
and her chest. She was transported to Jackson,Memorial Hospital by
Randall -Eastern ambulance where she was treated in the Emergency
Room. The following day, June 2, 1981, she was admitted to Inter-
national Medical Center suffering severe pain. She remained at
International Medical Center for a period of five days and was
treated by Dr. Aida M. Rodriguez, an orthopedic surgeon. After Mrs.
<+
Hugarte's release from International Medical Center she continued
r
treatments with Dr. Rodriguez who, in her final evaluation of Mrs.
v.b
Hugarte on March 11, 1982, gave Mrs. Hugarte a six percent (b%)
permanent impairment based on the injuries received from the 1981
accident. The evaluation was based on continuing tenderness and
pain in the right rib cage, neck, head, and shoulder. Dr. R. Scott
Piper, who conducted a medical examination of Mrs. Hugarte on
84-1411
To: Honorable Mayor and Members -2- November 29, 1984
F
of the City Commission Re: CL-82-057
L-83-124
u
April 11, 1984, at the request of the City, gave Mrs. Hugarte a
permanent disability rating of 1%-2$. At this time, Mrs. Hugarte
continues to take medication prescribed for relief of pain. Mrs.
Hugarte is now 66 years old.
Mrs. Hugarte's medical bills relating to this accident totalled
$6,197.00.
Harry Michael Needleman, the City of Miami police officer who res-
ponded to the Hugarte accident, did not charge either of the drivers
'
and stated on the accident report that the cause of the accident was
the fact that the stop sign was blocked by a tree and was not visible.
With reference to the City's liability in this case, the following
information is pertinent:
1. The tree was planted on the City right-of-way between the curb
and the sidewalk on S.W. 2nd Street where it intersects with
S.W. loth Avenue. This was part of the Little Havana Community
Development Project in which this area was rebuilt and land-
scaped by the City. The Plaintiff has obtained this information
through normal discovery.
'
2. The City's duty to maintain its streets in a safe condition would
z-
exist even if the tree had been growing on private property. In
Armas v. Metropolitan Dade County, 429 So.2d 59 (Fla. 3d DCA 1983),
a case in which the facts are similar to the Hugarte case, the
Court stated that this duty includes the use of reasonable care
:.:
to cut back foliage which has created an obstruction to a motor-
ist's view. The Court stated further that it did not matter that
the County was responsible for the stop sign itself. A copy of
the Armas opinion is attached.
3. The day before the Hugarte accident occurred, there was an almost
identical vehicular accident at the same intersection involving
the same stop sign blocked by the same tree.
4. The City of Miami police officer who responded to the accident
referred to in #3 above, stated on his report that the cause of
the accident was the fact that the stop sign was blocked by the
tree. Therefore, the City knew that the condition existed but
took no action to correct it. The Hugarte accident occurred the
next day.
84-1411
,ON
To: Honorable Mayor and Members -3- November 29, 1984
of the City Commission Re: CL-82-057
L-83-124
5. The accident referred to in #3 above was settled by the City's
Risk Management Division.
6. In the Hugarte case, the Plaintiff's claim against the County
has been settled.
All medical expenses and other damages have been verified as to
correctness. The original demand that the Plaintiff presented was
for $22,500.00. After extensive discussions and negotiations, this
matter can now be settled for $16,000.00.
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 $16,000.00 in full and complete settlement of this
claim.
LAD/ABS/f1
ENCL.(Resolution)
cc: City Manager
City Clerk
84 -1411
n - A
ARMAS v. METROPOLITAN DADE COUNTY Fla. 59
Cite as 429 Sold 59 (F4.App. 2 Dist. IM)
[2) The defendant's second contention,
against the other driver, lot owner, city and
that the trial court erred in denying his
county. The Circuit Court, Dade County,
motion to dismiss based on the state's fail-
Francis X. Knuck, J., granted summary
ure to preserve certain physical evidence of
judgments in favor of lot owner, city and
the crime, is also without merit. On bal-
county, and appeal was taken. The District
ance, we find that the prejudice to the
Court of Appeal, Schwartz, C.J., held that:
defendant in this case from loss of the
(1) motorist could maintain cause of action
evidence was slight where photographs of
based on theory that lot owner was liable
the electrical cord were available, the state
because motorist's view of stop sign was
stipulated to the number and type of knots,
obstructed by foliage growing from the lot
and the medical examiner testified that
and onto dedicated right-of-way; and (2)
even the presence of high levels of cocaine
motorist could maintain cause of action
in the victim's blood would not lead him to
based on theory that city was liable for
reach a different conclusion about the cause
failure to cut back such foliage which had
of death; whereas, the evidence of guilt,
grown over and onto cty's property; (3)
including tht. defendant's own inculpatory
motorist could maintain cause of action
statements (which we have determined
based on theory that county, which was
were voluntarily given), was strong, leading
responsible for stop sign, was liable for
us to conclude that dismissal was not man-
failure to remove vegetation concealing the
dated. State v. Sobe!, 363 So.2d 324 (Fla.
sign; and (4) city and county's alleged ad.
1978); Harrison v. State, 403 So.2d 565 (Fla.
herence to a stated policy in determining
3d DCA 1981); State v. Cooper, 391 So.2d
whether, when and from what intersections
332 (Fla. 3d DCA 1980); Budman v. State,
they would trim obstructing vegetation did
362 So.2d 1022 (Fla. 3d DCA 1978); Jones v.
not render their conduct in that respect an
State, 360 So.2d 1293 (Fla. 3d DCA 1978).
immunized discretionary or policy decision.
The judgment and sentence are therefore
Reversed.
affirmed.
Affirmed.
1. Automobiles 0-264
tr Motorist, who was injured in intersec-
tion accident, could maintain cause of ac-
tion based on theory that lot owner was
liable because motorist's view of stop sign
was obstructed by foiiage growing from the
lot and onto dedicated right-of-way.
Maria J. ARMAS and Juan
Armas, Appellants,
V.
METROPOLITAN DADE COUNTY, etc.,
City of Miami, etc. and Nita Prieto
Maercks, Appellees.
No. 81-2598.
District Court of Appeal of Florida,
Third District.
April 5, 1993.
Motorist, who was injured in intersec-
tion accident, brought action to recover
2. Automobiles 0-264
City's duty to maintain its streets and
adjacent real property in reasonably safe
condition includes duty to use reasonable
care to cut back foliage which has created
obstruction to motorist's view.
3. Automobiles 0-264
Motorist, who was injured in intersec-
tion collision, could maintain cause of action
based on theory that city was liable for
failure to cut back foliage which was plant-
ed on private lot, which grew over and onto
city's property and which assert,edly ob-
structed motorist's view of stop sign.
84-1411
JV1 '8
-J
60 Fla. 429 SOUTHERN REPORTER, 2d SERIES
4. Automobiles 4-264 Before SCHWARTZ, C.J., and DANIEL
Motorist, who was injured in intersec- S. PEARSON and FERGUSON, JJ.
tier, accident, could maintain cause of ac-
tion based on theory that county, which was SCHWARTZ, Chief Judge.
responsible for stop sign, was liable for
r' failure to remove vegetation concealing
sign from motorist's view.
5. Automobiles 4-264
In regard to accident at intersection at
which foliage was alleged to have obstruct-
ed a motorist's view of stop sign, city and
county's alleged adherence to a stated poli-
cy in determining whether, when and from
what intersections they would trim ob-
structing vegetation did not render their
conduct in that respect an immunized dig-
{ cretionary or policy decision, but the extent
to which financial and manpower resources
were available might be admissible for jury
consideration as to whether reasonable care
i had been exercised.
6. Automobiles 0-282
Inoperative or invisible traffic control
device is not precluded from being a legal
cause of a resulting intersection collision.
Joe N. Unger, David S. Wieder, Miami,
for appellants.
Robert A. Ginsburg, County Atty. and
Scott Fabricius, Asst. County Atty., Jose R.
Garcia -Pedrosa, City Atty. and Mikele S.
Carter, Asst. City Atty., Leesfield & Black-
burn and Mark A. Dresnick, Miami, for
appellees.
I. That case has remained pending in the trial
court.
2. Section 2-96.1, Metropolitan Dade County
Code provides:
From and after September 16. 1960. all
traffic engineering services shall be per-
formed by the traffic and transportation de-
partment, and such department shall have
exclusive jurisdiction over all traffic control
devices in both the incorporated and unincor-
porated areas of the county, and shall have
exclusive jurisdiction to exercise the powers,
duties and functions set forth herein. All
municipalities in Dade County are prohibited.
from exercising any such powers, duties and
functions, and shall not interfere with the
performance thereof by said county depart-
ment. It shall be unlawful for any person.
Armas was injured when his car was in-
volved in an intersection accident in the city
of Miami. He claimed that it had occurred,
at least in part, because his view of the stop
sign controlling the intersection was ob-
structed by foliage which had grown from
the adjacent privately -owned property onto
the dedicated right-of-way where the sign
was located. Armas therefore sued not
only the driver of the other vehicle; but
also Nita Maercks, the owner of the neigh-
boring lot and offending vegetation; the
city of Miami, which controlled the swale
and the streets in question; and Dade
County, the entity which erected and was
required to maintain the stop sign.' On the
ground that no actionable breach of duty
existed as to these three defendants, the
trial judge granted summary judgments in
their favor. Largely on the basis of deci-
sions rendered since his rulings, we reverse
each of these judgments.
[1] In the almost identical case of Mo-
rales v. Costa, 427 So.2d 297 (Fla. 3d DCA
1983),3 we recently stated that a landowner
may be liable for the maintenance of vege-
tation "which grows and exists [on] private
property, but which protrudes into [the]
public right-of-way;' so as to obstruct a
stop sign located there. On the basis of
Morales 4 and the cases and authorities it
firm, corporation, or other legal entity includ-
ing municipal corporations, to change, modi-
fy, install, remove, damage, deface or destroy
any traffic control device, unless authorized
to do so by the traffic and transportation
department.
3. Morales effectively distinguishes Evans v.
Southern Holding Corp., 391 So.2d 231 (Fla. 3d
DCA 1980), rev. denied, 399 So.2d 1142 (Fla.
1981) and Pedigo v. Smith, 395 So.2d 615 (Fla.
5th DCA 1981), upon which the landowner pri-
marily relies.
4. In the light of the language and principles of
Morales it' can make no difference that the
defendant in that case planted the tree directly
in the swale, rather than, as here, on the own-
er's property.
84-1411
ARMAS v. METROPOLITAN DADE COUNTY Fla. 61
Cfte as 429 Sold 39 OUAM. 3 Dfst. INS)
cites, the judgment in Maercks' favor can. ineffective an already installed stop sign
not stand. may well be deemed a breach of this obliga-
�"" t" b th "u Co ped Col mbu
[2, 31 The liability of the city is based
upon the duty to maintain its streets and
adjacent real property in a reasonably safe
condition. E.g., Town of Palm Beach v.
Hovey, 115 Fla. 644, 155 So. 808 (1934);
City of Hialeah v. Revels, 123 So.2d 400
(Fla. 3d DCA 1960), cert. denied, 129 So.2d
141 (F1a.1961). There can be no doubt that
this duty includes one to use reasonable
care to cut back foliage which has created
an obstruction to a motorist's view. Town
of Belleair v. Taylor, 425 So.2d 669 (Fla. 2d
DCA 1983).5 Moreover, since the vegeta-
tion grew onto and over the city's proper-
ty —which it controlled —it does not matter
either that it was planted on Maercks' lot or
that the county was responsible for the stop
sign itself. See Nobles v. City of Jackson-
ville, 265 So.2d 550 (Fla. 1st DCA 1972),
cert. denied, 272 So.2d 158 (F1a.1973).
[4] Insofar as the county is concerned,
its potential liability is based upon the su-
preme court's holding in Commercial Carri-
er Corp. v. Indian River County, 371 So.2d
1010 (F1a.1979), which involved the failure
to repair an inoperative traffic light result-
ing in an intersection collision. That princi-
ple was recently reiterated in Department
of Transportation v. Neilson, 419 So.2d 1071
(F1a.1982):
As stated in Commercial Cartier, and
reaffirmed here, the failure to properly
maintain existing traffic control devices
and existing roads may also be the basis
of a suit against a governmental entity.
We caution, however, that the mainte-
nance of a particular street or intersec-
tion means maintenance of the street or
intersection as it exists 161
419 So.2d at 1078. The failure to remove
vegetation which conceals and thus renders
5. Again, see note 4, supra, it is immaterial that
the vegetation in Belleair was apparently plant-
ed by the municipality itself.
6. The fact that there was no existing traffic
control device in Romine v. Metropolitan Dade
County, 401 So.2d 882 (Fla. 3d DCA 1981). rev.
denied, 412 So.2d 469 (Fla.1982), cited by the
fon y e ry, p ge v, u s,
134 Ga.App. 5, 213 S.E.2d 144 (1975); Smith
V. City of Preston, 97 Idaho 295, 543 P-2d
848 (1975); Gransi v. State, 206 Misc. 984,
136 N.Y.S.2d 238 (1954), aff'd, 286 A.D.
1145, 146 N.Y.S.2d 709 (1955); Naker v.
Town of Trenton, 62 Wis.2d 654, 217
N.W.2d 665 (1974); Fanning v. City of Lar-
amie, 402 P.2d 460 (Wyo.1965); am also,
Wallace v. Nationwide Mutual Fire Ins. Co.,
376 So.2d 39 (Fla. 4th DCA 1979) (failure to
restore fallen stop sign).
(5) Both governmental entities also sug-
gest that their alleged adherence to a stated
policy in determining whether, when, and
from what intersections they will trim ob-
structing vegetation renders their conduct
in that respect an immunized discretionary
or policy decision. It is clear, however, as
held in both State of Florida, Department
of Transportation v. Kennedy, 429 Sold
1210 (Fla. 2d DCA 1983) and Foley v. State,
Department of Transportation, 422 So.2d
978 (Fla. 1st DCA 1982), with which we
agree, that there is no merit to this posi-
tion.'
[6] Finally, we reject the claim that, as
a matter of law, an inoperative or invisible
traffic control device cannot be a legal
cause of a resulting intersection collision.
E.g., Commercial Carrier Corp. v. Indian
River County, supra; Morales v. Costa, su-
pra; Town of Belleair v. Taylor, supra;
Evans v. Southern Holding Corp., supra,
(Schwartz, J., dissenting on other grounds);
see generally, Gibson v. Avis -Rent-A-Car
System, Inc., 386 So.2d 520 (F1a.1980); but
cf., Pedigo v. Smith, 395 So.2d 615 (Fla. 5th
DCA 1981) (dictum). On the facts of this
case, the issue is one for the jury.
Reversed.
county, completely distinguishes that case from
the present one.
7. We do recognize that the extent to which
financial and manpower resources are available
may be admissible for jury consideration as to
whether reasonable care has been exercised.
W. Prosser, Law of Torts § 31 (4th ed. 1971).
84-1-111
Howard V. Gary
City Manager
CITY OF MIAM1,
INTER -OFFICE MEMORAN U
Resolution Ratifying
the Action of the City
Manager to Accept a
L��Crf' Grant Award
FROM Carl Kern REFERENCES:
Acting Director
Department of Parks ENCLOSURES:
and Recreation - --- -
It is recommended that the City Commis-
sion adopt a resolution ratifying the
actions of the City Manager in entering
into an agreement with the State of
Florida, Department of Veteran and
Community Affairs whereby the City
shall conduct a Child Day Care Program
as stipulated in said Agreement; and
further authorizing the City Manager to
accept the sum of $19,000 from the
State of Florida, Department of Veteran
and Community Affairs to implement the
program, as per attached resolution.
The Community Services Trust grant award is funded through the State
of Florida Department of Veteran and Community Affairs, in the amount
of $19,000. In addition, the City will provide a cash match, utiliz-
ing day care fees, in the amount of $19,000 for a total of $38, 000.
The intent of this project is to enable the Department of Parks and
Recreation to continue meeting the need for quality child care serv-
ices for children 6 weeks to 5 years of age; 180 children will be
served.
the loth year of this program. These funds supplement
budget and help make it possible to maintain the delivery
and quality of care.
It is the recommendation of this Department
tion be adopted.
Lucia A. Dougherty
City Attorney
Manohar Surana, Director
Department of Management
84-1411