08-004302CB
In Re: Senate Bill 40 (Isham) vs.
*
Status: Closed
DOAH Final Order on Friday, May 8, 2009.
DOAH Final Order on Friday, May 8, 2009.
1THE FLORIDA SENATE
4SPECIAL MASTER ON CLAIM BILLS
9Location
10402 Senate Office Building
14Mailing Address
16404 South Monroe Street
20Tallahassee, Florida 32399 - 1100
25(850) 487 - 5237
29DATE COMM ACTION
324/7 /09 SM Fav / 1 amendment
39April 7, 2009
42The Honorable Jeff Atwater
46President, The Florida Senate
50Suite 409, The Capitol
54Tallahassee, Florida 32399 - 1100
59Re: SB 40 (2009) Î Senator Ken Pruitt
67HB 827 (2009) Î Representative Ralph Poppell
74Relief of Angela Isham
78SPECIAL MASTERÓS FINAL REPORT
82THI S IS A CONTESTED CLA IM FOR $1,235,219.25 BASED
94ON A JURY AWARD FOR ANGELA ISHAM AND THE
103ESTATE OF HER HUSBAN D, DAVID ISHAM, AGAI NST
112THE CITY OF FT. LAUD ERDALE TO COMPENSATE
120CLAIMANTS FOR THE DE ATH OF DAVID ISHAM I N A
131MOTOR VEHICLE CRASH THAT OCCURRED IN A
138POLICE PURSUIT.
140FINDINGS OF FACT: In the late afternoon of November 15, 2001 , three Ft .
154Lauderdale narcotic detectives were patrolling an area of the
163City where drug transactions frequently occur. The
170detectives were in an unmarked car driven by Detectiv e Carl
181Hannold. They were wearing black t - shirts with the word
192ÐPOLICEÑ printed in large letters across the front. Although
201the detectives were in an unmarked vehicle, many people in
211the neighborhood saw the vehicle frequently and knew it was
221a police ca r.
225The detectives observed a parked BMW with several
233persons standing around it. When the driver of the BMW
243saw the police vehicle, he immediately sped off with tires
253squealing. No drug related activity was seen by the
262detectives.
263SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)
271April 7, 2009
274Page 2
276The detectives turned around to follow the BMW. The driver
286of the BMW took evasive maneuvers on the neighborhood
295streets and the detectives lost sight of the BMW for several
306minutes. The detectives circled back and spotted the BMW
315again. Detective Hannold pulled behind the BMW, which
323made a right turn at the next intersection without stopping at
334the stop sign. Detective Hannold followed. The detectives
342got behind the BMW and turned on their blue light inside the
354police car. The BMW accelerated away and ran the next
364stop sign at the intersection with a busy four - lane road. The
377BMW collided with a pickup truck driven by 42 - year - old
390David Isham. Mr. Isham died at the scene from his injuries.
401The driver of the BMW was identified as Jimmie Jean
411Charles, 20 years old. Charl es was injured in the collision
422and was hospitalized for a short time. The BMW he was
433driving had been stolen. Charles was tried and convicted of
443vehicular homicide. He was sentenced to 15 years in prison.
453The central dispute in this case was whether D etective
463Hannold was engaged in a pursuit of the BMW. The Ft .
475Lauderdale Police DepartmentÓs policy manual defines a
482ÐpursuitÑ as:
484The operation or use of a police vehicle so as
494to pursue and attempt to apprehend a subject
502operating a motor vehicle who w illfully or
510knowingly uses either high speed, illegal, or
517evasive driving tactics in an effort to avoid
525detention, apprehension, or arrest.
529The pursuit policy prohibits police pursuit in an unmarked car
539Ðexcept when it is necessary to apprehend an individ ual who
550has caused serious bodily harm or death to any person.Ñ
560Pursuit for a traffic violation would be contrary to the policy.
571The pursuit policy also states that Ðaccountability cannot be
580circumvented by verbally disguising what is actually a pursuit
589by using terms such as monitoring, tracking, shadowing, or
598following.Ñ
599The CityÓs pursuit policy was revised in 1996 to make it more
611restrictive. Doing so was consistent with a trend for police
621departments throughout the United States in response to
629th e injuries, deaths, and associated liability that often
638resulted from high speed police pursuits.
644SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)
652April 7, 2009
655Page 3
657Detective Hannold said he was familiar with the pursuit
666policy and that he was not engaged in a pursuit. He claims
678that he followed the BMW because it is com mon for drug
690dealers to speed away and then ÐditchÑ their cars and run
701away on foot. Hannold said that when the BMW sped away
712again when the blue light was activated in the unmarked
722police car, he did not accelerate to overtake the BMW, but,
733instead, came to a stop Ðto make it clear [to the driver of the
747BMW] that we were in no manner trying to catch up with
759him.Ñ The City claims that Detective HannoldÓs actions did
768not constitute a pursuit because he was not attempting to
778ÐapprehendÑ the BMW driver; he w as merely attempting a
788traffic stop which he had the right to do when he saw the
801BMW driver run a stop sign.
807The other two detectives supported Detective HannoldÓs
814account. The three detectives prepared individual written
821reports just after the incident , but they got together
830beforehand and agreed on what to say in their reports.
840Critical portions of the reports have identical wording. In
849their trial depositions and testimony, Hannold and the other
858two detectives were evasive and, in some instances, th eir
868answers lacked credibility.
871At the scene of the collision, there was a large gathering of
883people from the neighborhood and some of them were telling
893media representatives and police investigators that the
900police were pursuing the BMW in a high - speed c hase. The
913Police Department obtained several witness statements.
919One teenage boy said the police car was a block behind the
931BMW when the collision occurred, but the other witnesses,
940including two adult women closer to the scene of the
950collision, testifie d that the unmarked car was close behind
960the BMW and that both cars were going fast. One woman
971said that when the police car turned on its blue light, the
983BMW immediately accelerated away and the police car also
992Ðgunned it.Ñ The speed limit on the narrow residential street
1002was 25 mph.
1005A traffic accident reconstruction conducted by the Police
1013Department estimated that the BMW was traveling about 54
1022mph when it struck David IshamÓs truck. At trial, the City
1033presented another accident reconstruction that c oncluded
1040the BMW was going between 61 and 70 mph. The City
1051argues that, since Detective HannoldÓs vehicle stopped
1058SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)
1066April 7, 2009
1069Page 4
1071without leaving skid marks, it could not have been traveling
1081as fast as the BMW, nor could it have been very close
1093behind the BMW.
1096The Polic e Department admits that its own investigation of
1106whether a pursuit had occurred, conducted at the time of the
1117incident, was not thorough. The evidence suggests that
1125there was no objective search for the truth by the Police
1136Department.
1137Based on the exten sive witness testimony and other
1146evidence and argument presented by the parties, and taking
1155into account the credibility of the witnesses, the more
1164persuasive evidence supports the following essential facts:
1171At their first encounter, Detec tive Hannold had reason
1180to believe that the BMW driver was fleeing to evade
1190apprehension.
1191At their second encounter, when the BMW sped away
1200through a stop sign, it should have been clear to
1210Detective Hannold that the BMW driver was fleeing to
1219evade apprehension.
1221It was reasonable for the BMW driver to believe he
1231was being pursued.
1234The BMW driver sped through the next stop sign at
1244the four - lane road to evade apprehension and it is
1255unlikely that he would have done so if the police car
1266had not continued to follow him.
1272Whe ther Detective Hannold was driving as fast as the
1282BMW and whether he was close behind the BMW in
1292the two blocks leading to the intersection where the
1301collision occurred are not controlling facts for
1308determining whether Detective Hannold was engaged
1314in a p ursuit. The definition of a pursuit is not
1325restricted to high speeds and small distances
1332between the vehicles.
1335Detective HannoldÓs move to follow the BMW after
1343their first encounter m ight not have been a pursuit, but
1354his action in continuing after the BM W when it sped
1365away again at their second encounter was a pursuit.
1374SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)
1382April 7, 2009
1385Page 5
1387Even if, as Detective Hannold claims, he stopped his
1396vehicle immediately and turned off the flashing light
1404when the BMW sped away the last time, it only means
1415that he broke off his pursuit of the BMW, but the
1426pursuit had commenced earlier. Detective Hannold
1432might have terminated the pursuit, but it was too late
1442to avoid the tragedy that he had set in motion.
1452The action of Detective Hannold, the reaction of the BMW
1462driver, and the crash tha t killed David Isham, fall squarely
1473within the predictable scenarios that the CityÓs pursuit policy
1482was designed to avoid. Pursuing a ÐsubjectÑ who is trying to
1493avoid apprehension can cause the subject to react by driving
1503dangerously so as to cause injury or death. Therefore, a
1513pursuit is prohibited if the only infraction known to the police
1524officer is a traffic violation.
1529LITIGATION HISTORY: In 2003, a lawsuit was filed in the circuit court for Broward
1543County by Angela Isham, the wife of David Isham, o n behalf
1555of herself and the estate of David Isham, against the City of
1567Ft. Lauderdale. Prior to trial, the parties stipulated that the
1577economic damages were $1,270.438.50 In February 2008,
1585after a five - day trial, the jury found that the City and the
1599BMW driver were each 50 percent liable for Mr. IshamÓs
1609death. The jury also determined that Angela IshamÓs
1617damages for the loss of her husbandÓs companionship and
1626for pain and suffering was $600,000. Based upon the
1636division of damages under the version of s. 768.81, F.S, then
1647in effect, the City is liable for $1,435,219.25. Of this amount,
1660the City has already paid the sovereign immunity limit of
1670$ 200,000, leaving $1,235,219.25, which is the amount
1681sought through this claim bill.
1686CLAIMANTSÓ POSITION: Offic er Hannold was negligent in engaging in a pursuit of the
1700BMW, which was contrary to Police Department policy. The
1709City was also negligent for not properly training the
1718detectives regarding the pursuit policy.
1723CITY OF FT. LAUDERDALEÓS The City contests liability and objects to any payment to
1737POSITION: Claimant through a claim bill. The City contends that
1747Detective Hannold never was engaged in a pursuit and it
1757was the negligence of the BMW driver, alone, that was the
1768proximate cause of Mr. IshamÓs death.
1774SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)
1782April 7, 2009
1785Page 6
1787CONCLUSIONS OF LAW: Detective Hannold had a duty to comply with the Police
1800DepartmentÓs policies regarding pursuits and to operate his
1808vehicle at all times with consideration for the safety of
1818pedestrians and other drivers. It is foreseeable that injur ies
1828to motorists and pedestrians can occur during a police
1837pursuit . Detective Hannold breached his duty and the
1846breach was the proximate cause of the death of David
1856Isham. T he City of Ft. Lauderdale is vicariously liable for the
1868negligence of Detective Hannold.
1872The juryÓs allocation of 50 percent liability to the City is a
1884reasonable allocation and should not be disturbed.
1891LEGISLATIVE HISTORY: This is the first claim bill presented to the Senate in this
1905matter.
1906ATTORNEYÓS FEES AND C laimantsÓ attorneys have agreed to limit their fees to 25
1920LOBBYISTÓS FEES: percent of any amount awarded by the Legislature i n
1932compliance with s. 768.28(8), F.S. They h ave not agreed to
1943include the ir costs or the lobbyist Ós fee in the 25 percent
1956figure. The bill requires that attorneyÓs fees and lobbyistÓs
1965fees not exceed 25 percent of the amount paid. The bill
1976does not require costs to be included, as do most other claim
1988bills. It is recommended that the bill be amended to require
1999that the 25 percent figure include cos ts.
2007OTHER ISSUES: The City currently has reserves in the amount of
2018$2,186,419.65 for Police Professional liability claims.
2026Therefore, the City's operations would not be adversely
2034affected if th is claim bill is approved .
2043RECOMMENDATIONS: For the r easons set forth above, I recommend that Senate
2055Bill 40 (2009) be reported FAVORABLY , as amended .
2064Respectfully submitted,
2066Bram D. E. Canter
2070Senate Special Master
2073cc: Senator Ken Pruitt
2077Philip Twogood, Secretary of the Senate
2083Counsel of Record
2086Attac hment
2088Florida Senate - 2009 SPECIAL MASTER AMENDMENT
2095Bill No. SB 40
2099Ì430278:Î 430278
2101LEGISLATIVE ACTION
2103Senate . House
2106.
2107.
2108.
2109.
2110.
2111The Special Master on Claims Bills recommended the following:
21201 Senate Amendment
21232
21243 Delete lines 80 - 82
21304 and insert:
21335 the death of David Isham. The tota l amount paid for attorneyÓs fees, lobbying fees,
21496 costs, and other expenses related to this claim may not exceed 25 percent of the
21657 amount awarded under this act.
21718
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21764/8/2009 9:19:00 AM 600 - 02429A - 09

- Date
- Proceedings
- Date: 05/08/2009
- Proceedings: End of 2009 Regular Session. CASE CLOSED.
-
PDF:
- Date: 04/07/2009
- Proceedings: Special Master`s Report released (transmitted to Senate President [April 7, 2009]).
-
PDF:
- Date: 02/09/2009
- Proceedings: Letter to Randy Havlicak from Speaker Larry Cretul regarding appointment of Tom Thomas as Special Master filed.
-
PDF:
- Date: 12/15/2008
- Proceedings: Letter to Special Master Canter from J. Grosz enclosing copy of 316.154, Florida Statues filed.
-
PDF:
- Date: 12/04/2008
- Proceedings: Letter to Special Master Canter from K. Mitnik enclosing Plantiff`s Summary of Pursuit Definition and Application filed.
-
PDF:
- Date: 12/02/2008
- Proceedings: Letter to Special Master Canter from W. Clay Mitchell regarding DVD`s of accident scene and new coverage/witness clips (DVDs not available for viewing) filed.
-
PDF:
- Date: 12/01/2008
- Proceedings: Letter to Special Master Canter from W. Clay Mitchell regarding Amended Index (exhibits not available for viewing) filed.
- Date: 12/01/2008
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 11/21/2008
- Proceedings: Amended Notice of Hearing (hearing set for December 1, 2008; 9:00 a.m.; Tallahassee, FL; amended as to change from Video to Live).
-
PDF:
- Date: 11/20/2008
- Proceedings: Index (to Documents Book; documents not available for viewing) filed.
-
PDF:
- Date: 11/14/2008
- Proceedings: City of Fort Lauderdale`s Document Notebook (Volumes 1 through 3; exhibits not available for viewing) filed.
-
PDF:
- Date: 11/14/2008
- Proceedings: Letter to Special Master Canter from J. Grosz enclosing copy of the Respondent`s document notebook (3 Volumes, notebooks not available for viewing) filed.
-
PDF:
- Date: 11/12/2008
- Proceedings: Letter to parties of record from Ryan Padgett regarding appointment to serve as Special Master on behalf of the House of Representatives filed.
-
PDF:
- Date: 11/11/2008
- Proceedings: E-mail from Clay Mitchell to Special Master Canter requesting extension to file document book (requst granted by Special Master Canter on November 12, 2008) filed.
-
PDF:
- Date: 10/24/2008
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for December 1, 2008; 9:00 a.m.; Orlando and Tallahassee, FL; amended as to change to video hearing).
-
PDF:
- Date: 10/10/2008
- Proceedings: Notice of Hearing (hearing set for December 29, 2008; 9:00 a.m.; Orlando, FL).
-
PDF:
- Date: 09/29/2008
- Proceedings: Letter to Special Master Canter from W. Mitchell enclosing original copy of the proof of publication filed.
- Date: 09/25/2008
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
-
PDF:
- Date: 09/19/2008
- Proceedings: Notice of Telephonic Pre-hearing Conference (set for September 25, 2008; 3:30 p.m.).
-
PDF:
- Date: 09/05/2008
- Proceedings: Letter to J. Gorsz and C. Townsend from Special Master Canter advising the he has been appointed as the Special Master for the above claim bill. (Corrected letter)
-
PDF:
- Date: 09/04/2008
- Proceedings: Letter to J. Grosz and C. Townsend from Special Master Canter advising that he has been appointed as the Special Master for the above claim bill.
Case Information
- Judge:
- BRAM D. E. CANTER
- Date Filed:
- 09/02/2008
- Date Assignment:
- 09/02/2008
- Last Docket Entry:
- 05/08/2009
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Contract Hearings
- Suffix:
- CB
Counsels
-
Stephanie Birtman
Address of Record -
Justin Grosz, Esquire
Address of Record -
Ryan Padgett
Address of Record -
Tom Thomas, Esquire
Address of Record -
Clay Townsend, Esquire
Address of Record -
Jason Vail, Senate General Counsel
Address of Record -
Jason Eric Vail, Esquire
Address of Record -
Justin David Grosz, Esquire
Address of Record