08-004302CB In Re: Senate Bill 40 (Isham) vs. * Status: Closed DOAH Final Order on Friday, May 8, 2009.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

402 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

4/7 /09 SM Fav / 1 amendment

April 7, 2009

The Honorable Jeff Atwater

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re: SB 40 (2009) Î Senator Ken Pruitt

HB 827 (2009) Î Representative Ralph Poppell

Relief of Angela Isham

SPECIAL MASTERÓS FINAL REPORT

THI S IS A CONTESTED CLA IM FOR $1,235,219.25 BASED

ON A JURY AWARD FOR ANGELA ISHAM AND THE

ESTATE OF HER HUSBAN D, DAVID ISHAM, AGAI NST

THE CITY OF FT. LAUD ERDALE TO COMPENSATE

CLAIMANTS FOR THE DE ATH OF DAVID ISHAM I N A

MOTOR VEHICLE CRASH THAT OCCURRED IN A

POLICE PURSUIT.

FINDINGS OF FACT: In the late afternoon of November 15, 2001 , three Ft .

Lauderdale narcotic detectives were patrolling an area of the

City where drug transactions frequently occur. The

detectives were in an unmarked car driven by Detectiv e Carl

Hannold. They were wearing black t - shirts with the word

ÐPOLICEÑ printed in large letters across the front. Although

the detectives were in an unmarked vehicle, many people in

the neighborhood saw the vehicle frequently and knew it was

a police ca r.

The detectives observed a parked BMW with several

persons standing around it. When the driver of the BMW

saw the police vehicle, he immediately sped off with tires

squealing. No drug related activity was seen by the

detectives.

SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)

April 7, 2009

Page 2

The detectives turned around to follow the BMW. The driver

of the BMW took evasive maneuvers on the neighborhood

streets and the detectives lost sight of the BMW for several

minutes. The detectives circled back and spotted the BMW

again. Detective Hannold pulled behind the BMW, which

made a right turn at the next intersection without stopping at

the stop sign. Detective Hannold followed. The detectives

got behind the BMW and turned on their blue light inside the

police car. The BMW accelerated away and ran the next

stop sign at the intersection with a busy four - lane road. The

BMW collided with a pickup truck driven by 42 - year - old

David Isham. Mr. Isham died at the scene from his injuries.

The driver of the BMW was identified as Jimmie Jean

Charles, 20 years old. Charl es was injured in the collision

and was hospitalized for a short time. The BMW he was

driving had been stolen. Charles was tried and convicted of

vehicular homicide. He was sentenced to 15 years in prison.

The central dispute in this case was whether D etective

Hannold was engaged in a pursuit of the BMW. The Ft .

Lauderdale Police DepartmentÓs policy manual defines a

ÐpursuitÑ as:

The operation or use of a police vehicle so as

to pursue and attempt to apprehend a subject

operating a motor vehicle who w illfully or

knowingly uses either high speed, illegal, or

evasive driving tactics in an effort to avoid

detention, apprehension, or arrest.

The pursuit policy prohibits police pursuit in an unmarked car

Ðexcept when it is necessary to apprehend an individ ual who

has caused serious bodily harm or death to any person.Ñ

Pursuit for a traffic violation would be contrary to the policy.

The pursuit policy also states that Ðaccountability cannot be

circumvented by verbally disguising what is actually a pursuit

by using terms such as monitoring, tracking, shadowing, or

following.Ñ

The CityÓs pursuit policy was revised in 1996 to make it more

restrictive. Doing so was consistent with a trend for police

departments throughout the United States in response to

th e injuries, deaths, and associated liability that often

resulted from high speed police pursuits.

SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)

April 7, 2009

Page 3

Detective Hannold said he was familiar with the pursuit

policy and that he was not engaged in a pursuit. He claims

that he followed the BMW because it is com mon for drug

dealers to speed away and then ÐditchÑ their cars and run

away on foot. Hannold said that when the BMW sped away

again when the blue light was activated in the unmarked

police car, he did not accelerate to overtake the BMW, but,

instead, came to a stop Ðto make it clear [to the driver of the

BMW] that we were in no manner trying to catch up with

him.Ñ The City claims that Detective HannoldÓs actions did

not constitute a pursuit because he was not attempting to

ÐapprehendÑ the BMW driver; he w as merely attempting a

traffic stop which he had the right to do when he saw the

BMW driver run a stop sign.

The other two detectives supported Detective HannoldÓs

account. The three detectives prepared individual written

reports just after the incident , but they got together

beforehand and agreed on what to say in their reports.

Critical portions of the reports have identical wording. In

their trial depositions and testimony, Hannold and the other

two detectives were evasive and, in some instances, th eir

answers lacked credibility.

At the scene of the collision, there was a large gathering of

people from the neighborhood and some of them were telling

media representatives and police investigators that the

police were pursuing the BMW in a high - speed c hase. The

Police Department obtained several witness statements.

One teenage boy said the police car was a block behind the

BMW when the collision occurred, but the other witnesses,

including two adult women closer to the scene of the

collision, testifie d that the unmarked car was close behind

the BMW and that both cars were going fast. One woman

said that when the police car turned on its blue light, the

BMW immediately accelerated away and the police car also

Ðgunned it.Ñ The speed limit on the narrow residential street

was 25 mph.

A traffic accident reconstruction conducted by the Police

Department estimated that the BMW was traveling about 54

mph when it struck David IshamÓs truck. At trial, the City

presented another accident reconstruction that c oncluded

the BMW was going between 61 and 70 mph. The City

argues that, since Detective HannoldÓs vehicle stopped

SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)

April 7, 2009

Page 4

without leaving skid marks, it could not have been traveling

as fast as the BMW, nor could it have been very close

behind the BMW.

The Polic e Department admits that its own investigation of

whether a pursuit had occurred, conducted at the time of the

incident, was not thorough. The evidence suggests that

there was no objective search for the truth by the Police

Department.

Based on the exten sive witness testimony and other

evidence and argument presented by the parties, and taking

into account the credibility of the witnesses, the more

persuasive evidence supports the following essential facts:

At their first encounter, Detec tive Hannold had reason

to believe that the BMW driver was fleeing to evade

apprehension.

At their second encounter, when the BMW sped away

through a stop sign, it should have been clear to

Detective Hannold that the BMW driver was fleeing to

evade apprehension.

It was reasonable for the BMW driver to believe he

was being pursued.

The BMW driver sped through the next stop sign at

the four - lane road to evade apprehension and it is

unlikely that he would have done so if the police car

had not continued to follow him.

Whe ther Detective Hannold was driving as fast as the

BMW and whether he was close behind the BMW in

the two blocks leading to the intersection where the

collision occurred are not controlling facts for

determining whether Detective Hannold was engaged

in a p ursuit. The definition of a pursuit is not

restricted to high speeds and small distances

between the vehicles.

Detective HannoldÓs move to follow the BMW after

their first encounter m ight not have been a pursuit, but

his action in continuing after the BM W when it sped

away again at their second encounter was a pursuit.

SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)

April 7, 2009

Page 5

Even if, as Detective Hannold claims, he stopped his

vehicle immediately and turned off the flashing light

when the BMW sped away the last time, it only means

that he broke off his pursuit of the BMW, but the

pursuit had commenced earlier. Detective Hannold

might have terminated the pursuit, but it was too late

to avoid the tragedy that he had set in motion.

The action of Detective Hannold, the reaction of the BMW

driver, and the crash tha t killed David Isham, fall squarely

within the predictable scenarios that the CityÓs pursuit policy

was designed to avoid. Pursuing a ÐsubjectÑ who is trying to

avoid apprehension can cause the subject to react by driving

dangerously so as to cause injury or death. Therefore, a

pursuit is prohibited if the only infraction known to the police

officer is a traffic violation.

LITIGATION HISTORY: In 2003, a lawsuit was filed in the circuit court for Broward

County by Angela Isham, the wife of David Isham, o n behalf

of herself and the estate of David Isham, against the City of

Ft. Lauderdale. Prior to trial, the parties stipulated that the

economic damages were $1,270.438.50 In February 2008,

after a five - day trial, the jury found that the City and the

BMW driver were each 50 percent liable for Mr. IshamÓs

death. The jury also determined that Angela IshamÓs

damages for the loss of her husbandÓs companionship and

for pain and suffering was $600,000. Based upon the

division of damages under the version of s. 768.81, F.S, then

in effect, the City is liable for $1,435,219.25. Of this amount,

the City has already paid the sovereign immunity limit of

$ 200,000, leaving $1,235,219.25, which is the amount

sought through this claim bill.

CLAIMANTSÓ POSITION: Offic er Hannold was negligent in engaging in a pursuit of the

BMW, which was contrary to Police Department policy. The

City was also negligent for not properly training the

detectives regarding the pursuit policy.

CITY OF FT. LAUDERDALEÓS The City contests liability and objects to any payment to

POSITION: Claimant through a claim bill. The City contends that

Detective Hannold never was engaged in a pursuit and it

was the negligence of the BMW driver, alone, that was the

proximate cause of Mr. IshamÓs death.

SPECIAL MASTERÓS FINAL REPORT Î SB 40 (2009)

April 7, 2009

Page 6

CONCLUSIONS OF LAW: Detective Hannold had a duty to comply with the Police

DepartmentÓs policies regarding pursuits and to operate his

vehicle at all times with consideration for the safety of

pedestrians and other drivers. It is foreseeable that injur ies

to motorists and pedestrians can occur during a police

pursuit . Detective Hannold breached his duty and the

breach was the proximate cause of the death of David

Isham. T he City of Ft. Lauderdale is vicariously liable for the

negligence of Detective Hannold.

The juryÓs allocation of 50 percent liability to the City is a

reasonable allocation and should not be disturbed.

LEGISLATIVE HISTORY: This is the first claim bill presented to the Senate in this

matter.

ATTORNEYÓS FEES AND C laimantsÓ attorneys have agreed to limit their fees to 25

LOBBYISTÓS FEES: percent of any amount awarded by the Legislature i n

compliance with s. 768.28(8), F.S. They h ave not agreed to

include the ir costs or the lobbyist Ós fee in the 25 percent

figure. The bill requires that attorneyÓs fees and lobbyistÓs

fees not exceed 25 percent of the amount paid. The bill

does not require costs to be included, as do most other claim

bills. It is recommended that the bill be amended to require

that the 25 percent figure include cos ts.

OTHER ISSUES: The City currently has reserves in the amount of

$2,186,419.65 for Police Professional liability claims.

Therefore, the City's operations would not be adversely

affected if th is claim bill is approved .

RECOMMENDATIONS: For the r easons set forth above, I recommend that Senate

Bill 40 (2009) be reported FAVORABLY , as amended .

Respectfully submitted,

Bram D. E. Canter

Senate Special Master

cc: Senator Ken Pruitt

Philip Twogood, Secretary of the Senate

Counsel of Record

Attac hment

Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 40

Ì430278:Î 430278

LEGISLATIVE ACTION

Senate . House

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The Special Master on Claims Bills recommended the following:

1 Senate Amendment

2

3 Delete lines 80 - 82

4 and insert:

5 the death of David Isham. The tota l amount paid for attorneyÓs fees, lobbying fees,

6 costs, and other expenses related to this claim may not exceed 25 percent of the

7 amount awarded under this act.

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