07-004292CB In Re: Senate Bill 54 (Daniel Decembre) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: Because the evidence did not show that reasonable measures could have been taken to prevent the Claimant`s injury from a dog attack at school, it is recommended that the claim bill be reported unfavorably.

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January 15, 2008

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threw things at the dog. One teacher beat the dog with an

umbrella until it finally stopped its attack.

Daniel’s injuries were extensive. He was taken via ai r

ambulance to the hospital. He had deep lacerations of both

cheeks, his eyelids, and chin. He lost much of his right ea r

and his left ear had to be amputated. He has undergone

four subsequent surgeries to repair the damage to his face

and eyes.

Daniel suffered permanent physical injuries to his face and head. He will need several more surgeries and aprosthetic

ear implant which must be repl aced every two to five years

(to account for his growth) until he reaches physical maturity. He has recurring pain on the left side of his head, some

facial nerve damage, and the t ear duct of his left eye continually runs.

The incident also caused D aniel lasting psychological

trauma. He has frequent night mares and is now afraid to be

near dogs. The incident, subsequent surgeries, and his recovery caused Daniel to fa ll a year behind in school.

Unfortunately, he is regularly teased at school due to his

disfigurement.

The dog belonged to a manwho liv ed in a house adjacent to

the school grounds. He said th at the dog bolted through the

front door when his d aughter came into th e house. There

was no explanation in the record for why the dog’s owner did

not immediately run after the dog and arrive sooner to

prevent or to help stop the dog’s attack on Daniel. The evidence only shows that owner arrived after the attack had

ended and took the dog back to his house. The owner was

issued a citation and he paid a fine. The pit bull was put to

sleep.

In the three years preceding the attack on Daniel, officials at

Ridgewood Park Elementary had called Orange County

A nimal Services 19 times to have dogs removed from the

school campus. None of the prio r incidents had involved a

dog bite or attack on a student or adult.

LITIGATION HISTORY: Claimants sued the Sc hool Board in the circuit court fo r

Orange County in 2005. The case was successfully

mediated and the parties en tered into a Stipulated

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Settlement Agreement in Nove mber 2007 which called fo r

payment to Desnar and Migno ne Decembre, individually and

as the parents and guardians of Daniel, the sovereign

immunity limit of $200,000 and for the School Board to take

a neutral position on the pass age of a claim bill for an

additional $1.8 Million.

The Decembres did not sue the dog owner for Daniel’s

injuries because his homeowner’s insurance did not cove r

dog bites, and he had no significant assets.

CLAIMANTS’ POSITION: The School Board is liable in negligence for failing to take reasonable steps to prevent dogs from entering the school

campus and attacking students.

SCHOOL BOARD’S POSITION: The School Board denies liability for negligence, but believes the settlement is fair and reasonable under the

circumstances.

CONCLUSIONS OF LAW: There are many reasons for entering into a settlement

agreement other than the perce ived merits of the claim and,

therefore, I am not precluded from reviewing the terms of the

parties' settlement agreement in this matter and determining

whether they are reasonable under the totality of the

circumstances.

The School Board has a duty to take reasonable measures

to protect its students from foreseeable injuries. Even

though no student had previously been bitten by a dog on

the campus of Ridgewood Park Elementary, a dog attac k

was foreseeable because dogs had previously entered the campus. The fencing around the campus was in disrepair in

several places, but the pit bull that attacked Danielcame

through the front gate that is always open during school

hours to allow for children to a rrive at the campus by school

bus or by car, as well as for teachers, other school

employees, and visitors. Wh ether the School Board

breached its duty to protect Daniel comes down to the question of whether the Schoo l Board, using reasonable

means, could have preventeda dog from entering the campus through the front gate.

Calling Animal Services was a responsible action to take

when dogs were found on the school campus. Claimants

argued that, because dogs had been removed from the

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school on 19 previous occasion s, something more should

have been done to keep dogs out. Claimant’s attorneys

suggested that the School Board should have posted

someone at the front gate to prevent a dog from entering

and should have erectedinterio r fencing so that a dog

entering the front gate could not easily get to the areawhere

Daniel was attacked.

I am not persuaded that thes e are reasonable measuresno r

that the failure to implement these measures shows that the

School Board was negligent. It was not adequately

explained how the suggested precautions would have

prevented this dog from enteri ng through the wide front gate

and attacking one of numerous students and adults who

were in the front of the school. While interior fencing would

have made it much harder for t he pit bull to get to where Daniel was standing on the day he was attacked, interio

r

fencing would not have prev ented the dog from entering

through the front gate and attacking someone else.

Almost every school is set up with a perimeter fence and a

front gate that is open during sc hool hours to admit students,

teachers, and many others who enter on foot as well as in

school buses and private vehicl es. Claimant’s position in

this case, in essence, is t hat all schools ar e negligent in not

adopting an alternative set up that will prevent dogs from

entering through the front gate during school hours and

attacking students. However, noreasonable measures to

“dog-proof” a school were iden tified by Claimants and none

are apparent to me. Therefore, the evidence presented to

me does not demonstrate that D aniel’s injuries resulted from

the negligence of the School Board.

However, because of the horrific nature of the incident and

the severity of Daniel’s injuri es, which are depicted in several

dramatic photographs taken just after the dog attack, the School Board faced the real ri sk that a jury would find the

School Board liable and award a much larger damage award

than the $2 Million settlement figure.

ATTORNEY’S FEES AND Claimant's attorneys agree to lim it their fees to 25 percento f

LOBBYIST’S FEES: any amount awarded by the Legislature as required by

s. 768.28(8), F.S. They have not acknowledged thei r

awareness of the provision of the bill that requires the

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January 15, 2008

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lobbyist’s fee and costs to be included in the 25 percent

figure.

OTHER ISSUES: The School Board is self-insured. If the claim bill is passed, the award would be paid from the School Board’s General

Funds.

LEGISLATIVE HISTORY: This is the first claim bill ever filed in this matter.

RECOMMENDATIONS: A lthough I believe the School Board acted reasonably in

settling the case for $2 mil lion because it risked a much

larger jury verdict against it, I cannot recommend payment o f

the claim because the evidence presented to me does not

persuade me that the School Board was liable for Daniel

Decembre’s injuries. Therefore, I recommend that Senate Bill 54 (2008) be reported UNFAVORABLY.

Respectfully submitted,

Bram D. E. Canter

Senate Special Master

cc: Senator Arthenia Joyner

Representative Geri Thompson

Faye Blanton, Secr etary of the Senate

Tom Thomas, House Special Master

House Committee on Constitution and Civil Law

Counsel of Record