HomeMy WebLinkAboutR-80-0920RR/WPC/2
11/12/80
RESOLUTION NO. 8 0 - -0 2 0
A RESOLUTION AUTHORIZING THE DIRECTOR
OF FINANCE TO PAY TO GUSTAVO A. DUARTE
AND JOSE AMOR DUARTE, WITHOUT THE ADMIS-
SION OF LIABILITY THE SUM OF $46,995.70,
IN FULL AND COMPLETE SETTLEMENT OF ALL
.% BODILY INJURY CLAIMS AND DEMANDS AGAINST
THE CITY OF MIAMI, AND UPON EXECUTION OF
F O 1-.:. (J ,a i A RELEASE, RELEASING THE CITY OF MIAMI
FROM ALL CLAIMS AND DEMANDS.
WHEREAS, GUSTAVO A. DUARTE and JOSE AMOR DUARTE filed
a claim against THE CITY OF MIAMI for the alleged bodily
injury claim of GUSTAVO A. DUARTE resulting from an accident
on or about May 6, 1977 at or near Shenandoah Day Care Center,
1800 S. W. 21st Avenue, Miami, Florida; and
WHEREAS, the above claim has been investigated by Torts
Division of the City Attorney's Office, in accordance with
Ordinance No. 8417, which creates the City of Miami Self -
Insurance Program, and said office recommends that these
claims be settled for the sum of Forty -Six Thousand Nine
Hundred Ninety -Five Dollars and Seventy Cents ($46,995.70);
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF
THE CITY OF MIAMI, FLORIDA:
Section 1. That the Director of Finance is hereby
authorized to pay (1) to JOSE AMOR DUARTE as the parent and
Natural Guardian and Guardian Ad Litem of GUSTAVO A. DUARTE,
a minor, without the admission of liability the sum of
Forty -One Thousand Nine Hundred Ninety -Five Dollars and
Seventy Cents ($41,995.70) and (2) to JOSE AMOR DUARTE and
VIDA DUARTE the sum of Five Thousand Dollars ($5,000.00)
in full and complete settlement of all bodily injury claims
and demands against the City of Miami, upon the execution of
a Release, releasing the City of Miami from all bodily injury
claims, medical expenses and demands.
MICROFILNIINC, GUNIPI_FTFD
MAGAI
CITY COMMISSION
ViElETIN G O F
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PASSED AND ADOPTED this 17 day of DECEMBER , 1980.
MAURICE A. FERRE
MAYOR
ATTEST:
C TY CLERK
PREPARED AND APPROVED BY:
�k4v---
ROBERT ROSSANO
Assistant City Attorney
APPROVED AS TO FORM AND CORRECTNESS:
-.- 0 GE F. KNOX, JR.
Ci Attorney
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DOCM;lt!'m r.
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CITY i14114!'rn �� �Ifl
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The Honorable Members of
The City Commission
o e F. Knox, Jr.
City�Attorney
.
11SUPP77TI E
Fi�ow'?.
December 4, 1980
Gustavo A. Duarte S Jose Anior
Duarte v. City of Miami
Circuit Court No. 78-9243 (24)
Our File NO.:L-78-078
D/A: 5/6/77
P/A: Shenandoah Park
This lawsuit stems from an accident which occurred at
Shenandoah Park on May 6, 1977. The Plaintiff, Gustavo A. Duarte
was a 3 year old in a City nursery. Apparently, Gustavo was with
a group of approximately five children rancri_nn in age from 2 to 5
years old when the accident occurred. My investigation indicates
that his Instructor, An.?re Thorpson, had allowed the children to
leave the nurser,, cor,pounc? and to play in a larcer plays rounc?. Mr.
Thompson is said to have been on the opposite end of the p]ayground
under a tree smoking a cigarette when the accident occurred.
Gustavo Duarte claims he fell while he was playing on the monkey
bars. Mr. Thompson told his supervisor that Gustavo jumped from a
swing set. My investigation reveals that Mr. Thompson was not well
liked by the Park staff. He left employment with the City shortly
after the incident.
The Plaintiff fell, fracturing his lateral and medial condyles
of his right humerus. The areas in which he fractured his arm were
epiphyses, or growth centers for his humerus. The fractures were .
treated with open reduction and internal fixation with two pins
at Variety Childrens' Hospital on the day of the acci.dont. The
operation was performed by Dr. Arnaldo Lopez. The Plaintiff's arm
was also set in various casts. Eventually, both pins were removed.
The Plaintiff experienced a diminution in the range of motion to
his ri(-aht elbow.
X-rays taken as early as June 17, 1977 revealed a growth
deficiency at the medial condyle. The humerus was gr.owind
in a lopsidecl fashion. The deformity became much more obvious
as time passed. Recently, the Plaintiff has complained that the
other children in his first grade class are making fun of his de-
formity.
Both Dr. Lopez and Dr. Ledford Gregory, the Court appointed
physician, had determined that an osteotomy (an operation in which
the bone is se,.�ered) will be necessary. The Plaintiff's right aryl
will be shortened by this procedure. However, both c?odors also
agree that if the operation was to be performed at this t.imt.,
additional operations would be necessary to compensate for a(l6ition-
al growth by the lateral condyle. It is therefore recornunended that
o t — !1
4
i
The Honorable Members of 2 December 4, 1980
Plaintiff forego the operation until his humerus reaches maturity,
at approximately age 14. He must, therefore, live with his deform-
ity for an additional eight years, which is a total of eleven years.
The chances of a successful osteotomy are very good. It will not
only correct the deformity, but it will also increase the Plain-
tiff's range of motion in his elbow.
The liability of the City is controlled by Florida Statutes,
Section 768.28. The injured Plaintiff could receive as much as
$50,000.00 for his pain and suffering. His parents could receive an
additional $50,000.00 on their derivative claims for past and future
medical expenses, as well as loss of se'Yvices. See State Board of
Regents Yant, 360 So.2d 99 (1 DCA 1978), cent. den. 364 So.2d
892 (1978).
The above claim has been investigated by the City of Miami
Attorneys Office in accordance with Ordinance 'Jo. 841.7, which
creates the City of Miami's Self. -Insurance Program. This Office
recommends that the City of Miami pay $46,771.20 to Gustavo A.
Duarte and Jose Amor Duarte to settle this claim.
Court approval is necessary for any settlement involving in-
juries to a minor. Judge Edward Klein has determined that the
Plaintiff's parents, Jose jnmor Duarte and Vida Duarte, are entitled
to $5,000.00 for the expenses they incurred as the result of the
Plaintiff's injuries. The balance of the settleMent, $41,995.70,
will be held in trust for Gustavo. A check in that amount should be
made payable to Jose Amor Duarte, as parent and natural guardian
and guardian ad litem of Gustavo Duarte, a minor.
GFK/RR/wpc/o
80- 920