08-004318CB In Re: Senate Bill 56 (Castillo) 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

2/1 2 /09 SM Fav/ 1 amendment

March 10 , 2009

Th e Honorable Jeff Atwater

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re: SB 56 (2009) Î Senator Nan Rich

HB 67 (2009) Î Representative Juan Carlos ÐJ.CÑ Planas

Relief of Madonna Castillo

SPECIAL MASTERÓS FI NAL REPORT

THIS IS AN EQUITABLE CLAIM FOR $500,000 A GAINST

THE CITY OF HIALEAH ARISING FROM AN ACCI DENT

THAT OCCURRED IN A C ITY POOL, WHICH THE CITY'S

LIFEGUARDS FAILED TO PREVENT, WITH THE RE SULT

THAT MADONNA CASTILL O IS BLIND IN ONE EY E.

FINDINGS OF FACT: On July 3, 1998, Madonna Castillo, then aged 12, went to

the Milander Pool, which is a public facility located in, and

operated by, the City of Hialeah, Florida (City). While

standing in the shallow end of the pool, talking with her

sister, Ms. Cast illo was struck forcefully in the right eye by

another swimmer, a boy about 17 years old. There is no

evidence in the record, and neither party has argued, that

the boy (whom no one ever identified) intentionally struck

Ms. Castillo; by all accounts, the collision between them was

accidental. The blow happened so quickly that Ms. Castillo

literally never saw it coming.

None of the lifeguards on duty at the time of the accident

saw it occur, either. Years later, at the jury trial during which

Ms. Castill o's negligence claim against the City was heard,

the plaintiff presented evidence tending to establish that

some time before the accident, a lifeguard had told two

SPECIAL MASTERÓS FINAL REPORT Î SB 56 (2009)

March 10, 2009

Page 2

teenage boys, including the one who later struck Ms.

Castillo, to move away from the childre n's area of the pool

because their behavior was too rowdy. According to this

evidence, the lifeguard left his post shortly afterwards and

stopped supervising the teens.

There is no dispute that the Ms. Castillo's eye was severely

injured. The impact, wh ich was likened to being struck by a

tennis ball traveling at 90 miles per hour, caused a vitreous

hemorrhage (essentially, bleeding inside the eye), which led,

in turn, to Ms. Castillo's developing neurovascular glaucoma.

Despite aggressive medical inter vention, Ms. Castillo lost

sight in her right eye. In the aftermath of the injury, Ms.

Castillo incurred medical expenses totaling approximately

$41,000.

Since the accident, the glaucoma in Ms. Castillo's damaged

eye has proved resistant to treatment. T he uncontrollable

pressure causes her to suffer frequent headaches. The

injury is disfiguring as well, the right eye appearing visibly

damaged. Eventually, Ms. Castillo's right eye will need to be

surgically removed and replaced with a prosthetic eye. T he

procedure will cost approximately $25,000. After that

occurs, the prosthetic eye will need to be replaced

periodically, at a cost of about $2,000 per procedure.

Ms. Castillo presently uses medications for her eye that cost

a couple of hundred dollars per month. She can anticipate a

lifetime of medication therapy because, after her right eye is

removed, the socket will need routine treatment.

At trial, a key issue was whether a lifeguard reprimanded the

swimmer who caused the injury, and whether the l ifeguard

should have removed this swimmer from the pool. This was

a critical issue because, generally speaking, only if the City

(through its agents, the lifeguards) were on notice of the

dangerous condition, namely the reckless swimmer, would

the City ha ve been under a legal duty to protect invitees to

the pool such as Ms. Castillo from this swimmer. Put

another way, the injury would not have been foreseeable Ï

and hence preventable by the City in the exercise of due

care (as Ms. Castillo has maintained it was) Ï unless the City

had reason to believe that this swimmer posed a danger to

others.

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March 10, 2009

Page 3

As mentioned, at the trial Ms. Castillo presented competent,

substantial evidence ( i.e. her older sister's testimony) that a

prior warning had been given to the swimme r. The City

p roduced no evidence to the contrary, and the jury

apparently believed Ms. Castillo's sister's testimony on the

subject. The sister did not testify at the hearing on the claim

bill, so the undersigned's ability independently to assess her

cre dibility is limited. Because the City is not contesting

liability at this point, however, the undersigned accepts as

credible the evidence presented at the jury trial and finds

that the lifeguard (and thus the City) knew, or should have

known, of the dang erous condition that caused Ms. Castillo's

injury.

Being on notice that the swimmer posed a risk of harm, the

lifeguard should have removed the swimmer from the pool Ï

or at least have kept a watchful eye on him. The lifeguard's

failure to take reasonable steps to prevent harm was a

breach of the City's duty to use due care to protect invitees.

The City, in short, was negligent in this instance.

The jury found that the swimmer who collided with Ms.

Castillo was negligent too, and the undersigned agrees. The

jury in the civil trial was asked to compare the negligence of

the swimmer (who was neither identified nor sued) to that of

the City and apportion the fault between them by

percentages. The jury determined that the City's negligence

comprised 80 perce nt of the cause of Ms. Castillo's injury,

the swimmer's 20 percent.

The undersigned rejects this apportionment of the fault as

illogical and contrary to the evidence. To be sure, the City

was negligent in not preventing the injury. But it was the

swimme r Ï an independent moral actor responsible in the

first instance for his own behavior Ï who actually struck Ms.

Castillo. Given this reality, the undersigned does not believe

that the City was four times more at fault than the swimmer,

but rather that the swi mmer's culpability, by a factor of four,

exceeded that of the City. That is, considering the totality of

the circumstances, including the fact that the swimmer was a

minor (albeit a teenager near the age of majority), the

undersigned determines that the p roper apportionment of

fault is 80 percent to the swimmer, 20 percent to the City Ï

the reverse of the jury's determination.

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March 10, 2009

Page 4

LEGAL PROCEEDINGS: In 2000, Reyna Castillo, the mother and legal guardian of

Ms. Castillo, brought suit on her daughter's behalf, and also

in her own right, against the City. The action was filed in the

Miami - Dade County Circuit Court.

The case was tried before a jury in March 2003. The jury

returned a verdict awarding Ms. Castillo a total of $5.8

million in damages, broken down a s follows: (a) $600,000

for past pain and suffering; (b) $5 million for future pain and

suffering; (c) $41,000 for past medical expenses; and (d)

$219,000 for future medical expenses. The trial court

entered a judgment against the City in the amount of $ 4.7

million Ï or 80 percent of the total damages, in accordance

with the jury's apportionment of fault. (All of the foregoing

numbers were rounded for ease of reference.) Reyna

Castillo apparently did not obtain a recovery in her individual

capacity.

The City appealed the adverse judgment. While the appeal

was pending, the City entered into a settlement agreement

with the plaintiffs pursuant to which the City, in exchange for

a release of further liability, agreed: (a) to pay $200,000

($100,000 to Ms. Ca stillo and a like sum to her mother),

thereby exhausting the City's limits of liability under the

sovereign immunity statute; (b) to dismiss its appeal; and (c)

to support the passage of a claim bill for $500,000. Although

the settlement agreement was red uced to writing, for

reasons unknown the parties never signed the instrument.

The City, however, paid the $200,000, dismissed its appeal,

and currently acknowledges its past promise to support the

claim bill. In sum, despite the absence of a formal

agree ment, no one disputes that the settlement descr ibed

above was, in fact, made.

The settlement proceeds were distributed to Ms. Castillo in

June 2004. Her net recovery, after paying attorney's fees

and costs, and outstanding medical bills, was $122,407. M s.

Castillo testified credibly at the hearing on the claim bill (and

the undersigned finds) that she spent this money on school,

living expenses, transportation, and medical expenses, and

little of it is left. As of the hearing, there were no outstanding

liens or unpaid bills for the medical expenses Ms. Castillo

has incurred in connection with this accident. (Ms. Castillo,

incidentally, did not have health insurance at the time of the

hearing.)

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March 10, 2009

Page 5

CLAIMANTÓS POSITION: The City is vicariously liable for it s lifeguards' failure to

protect Ms. Castillo against injury from a known danger,

namely the reckless swimmer, which injury could have been

prevented had the lifeguards used reasonable care in

supervising the pool. The City's imputed negligence, in

conjun ction with the swimmer's negligence, directly and

proximately caused Ms. Castillo to suffer a severe and

permanent bodily injury.

THE DISTRICTÓS POSITION: The City accepts liability and acknowledges that it agreed to

pay Ms. Castillo a total of $700,000 to settle the case. The

City acknowledges that it promised to support the enactment

of a claim bill in the amount of $500,000. The City objects to

the current bill, however, on the ground that it is presently

unable to pay the agreed upon sum due to budg etary

constraints stemming from increased costs and diminished

revenues, exacerbated by the ongoing financial crisis and

concomitant stock market collapse.

CONCLUSIONS OF LAW: As provided in s. 768.28, Florida Statutes (2008), sovereign

immunity shields the City against tort liability in excess of

$200,000 per occurrence. Unless a claim bill is enacted,

therefore, Ms. Castillo will not realize the full benefit of the

settlement agreement she has made with the City.

As a governmental entity operating a p ublic swimming pool,

the City owed its invitees a duty to keep the premises in a

reasonably safe condition. See Fla. Dep't of Natural Res. v.

Garcia , 753 So. 2d 72, 75 (Fla. 2000). This duty includes

the obligation to "warn the public of any dangerous

co nditions of which [the governmental entity] knew or should

have known." Id. (footnote omitted).

Under the doctrine of respondeat superior, the City is

vicariously liable for the negligent acts of its agents and

employees, when such acts are within the course and scope

of the agency or employment. See Roessler v. Novak , 858

So. 2d 1158, 1161 (Fla. 2d DCA 2003). The City is liable for

the negligence of its lifeguards.

The lifeguards on duty the day Ms. Castillo was injured knew

or should have known tha t a swimmer in the pool was

behaving recklessly and posed a danger to other swimmers.

These lifeguards either should have removed the rowdy

SPECIAL MASTERÓS FINAL REPORT Î SB 56 (2009)

March 10, 2009

Page 6

swimmer from the pool or kept him under close supervision.

Their failure to take these steps breached the City's d uty to

keep the pool reasonably safe for invitees.

The City's negligence, however, did not independently cause

any harm to Ms. Castillo. Rather, the City's negligence

allowed the reckless swimmer to collide with Ms. Castillo and

injure her eye. The sw immer's concurrent fault (without

which no harm would have occurred) therefore must also be

considered. While the standard of care against which a

minor's conduct should be measured might be less

demanding than that to which an adult would be held, see

Mc Gregor v. Marini , 256 So. 2d 542, 543 (Fla. 4th DCA

1972)(standard for measuring minor's conduct is that level of

care reasonably to be expected from a child of like age,

intelligence, experience, and training); Medina v. McAllister ,

196 So. 2d 773, 774 (F la. 3d DCA 1967)(conduct of minor

who was engaged in a childish pursuit when injury occurred

is tested by what would have been reasonable under the

circumstances, among which are the child's age, experience,

and state of mental development), the undersigne d

nevertheless concludes that a 17 year - old young man can

reasonably be expected to conduct himself so as not to

smash another person in the eye while swimming in a public

pool. It is found and concluded that the swimmer breached

the general duty each per son owes to another to use

reasonable care under the circumstances to avoid causing

harm.

Because the City and the swimmer were joint tortfeasors

whose negligence combined to cause Ms. Castillo's injury, it

is necessary to determine how much of the result ing

damages each, respectively, was responsible for causing.

As noted above, the jury's allocation of 80 percent of the

fault to the City is unreasonable. The undersigned

concludes instead that the City was 20 percent to blame for

the accident.

The evid ence supports the jury's award of $260,000 in

economic damages. The undersigned believes, though, that

the jury's award of $5.6 million in noneconomic damages is

open to legitimate criticism. At a minimum, it seems clear to

the undersigned that reasonabl e minds can disagree about

whether such an award is excessive. In this particular case,

however, the settlement reduces the debate about the

SPECIAL MASTERÓS FINAL REPORT Î SB 56 (2009)

March 10, 2009

Page 7

noneconomic damages (for the most part) to an academic

exercise.

Facing a $4.7 million judgment that it could not be confident

would be reversed on appeal, the City agreed to pay Ms.

Castillo $700,000 (with $500,000 contingent on the

enactment of a claim bill) in full satisfaction of all claims.

One way to view the settlement is to consider that the total

amount the City agreed to pay is equal to 20 percent of $3.5

million. A jury verdict totaling $3.5 million Ï with

approximately $250,000 for economic damages and $3.25

million for pain and suffering Ï would not have raised the

undersigned's eyebrows (as does the actual award of $5.8

million). Ultimately, therefore, while the undersigned does

not agree fully with the jury's verdict, he concludes that the

settlement at hand is both reasonable and responsible Ï and

that the agreed upon sum of $700,000 would compensate

Ms. C astillo fairly for the City's culpability in this unfortunate

incident.

LEGISLATIVE HISTORY: This is the first year that this claim has been presented to the

legislature.

ATTORNEYSÓ FEES AND Section 768.28(8), Florida Statutes, provid es that "[n] o

LOBBYISTÓS FEES: attorney may charge, demand, receive, or collect, for

services rendered, fees in excess of 25 percent of any

judgment or settlement." Ms. Castillo's attorney, Ronald

Rodman, Esquire, has submitted an affidavit attesting that

his fee in conne ction with the instant claim bill would be

limited to $125,000, or 25 percent of the compensation being

sought. (To date, Mr. Rodman has been paid just $50,000

for his legal services, that being 25 percent of the $200,000

that the City previously paid pur suant to the settlement

agreement.) In addition, Ms. Castillo has agreed to pay her

lobbying firm, Robert M. Levy & Associates, $25,000

contingent upon the enactment of the bill. Mr. Rodman

estimates that the legal expenses associated with the claim

bill will not exceed $1,000.

In its current form, the instant claim bill provides that the

"total amount paid for attorney's fees, lobbying fees, costs,

and other similar expenses relating to this claim may not

exceed 25 percent of the amount awarded under th is act."

Unless the bill is amended to remove lobbying fees from the

foregoing limitation, either Ms. Castillo's attorney or her

SPECIAL MASTERÓS FINAL REPORT Î SB 56 (2009)

March 10, 2009

Page 8

lobbyist, or both, will not be compensated fully in accord with

the contractual arrangements that Ms. Castillo has made

with t hese professionals.

In its current form, the instant claim bill provides that the

"total amount paid for attorney's fees, lobbying fees, costs ,

and other similar expenses relating to the adoption of this act

may not exceed 25 percent of the total amount a warded

under this act." (Emphasis added). Unless the bill were

amended to remove costs from the foregoing limitation,

therefore, the costs (about $6,000) would need to be paid

out of the $125,000 earmarked for attorneys' and lobbying

fees.

OTHER ISSUES : The CityÓs sole defense to the enactment of the claim bill,

which it is contractually bound to support, is that the CityÓs

budget is tight, making payment of the bill very difficult at

present. This is a purely political argument and, as such,

falls lar gely outside the scope of the undersignedÓs

jurisdiction. Nevertheless, because the City focused its case

on this issue, the undersigned will offer a few observations

on the subject.

The City presented evidence at the hearing on the claim bill

attesting t o its dire financial situation. The bottom line is that

increased costs and diminished revenues have created a

deficit of approximately $9.5 million in the City's budget.

Because the city is self insured, paying $500,000 to Ms.

Castillo would exacerbate the City's financial difficulties.

While the undersigned does not dou bt that the City is facing

tough times financially and appreciates the seriousness of

the situation, he was not persuaded that paying Ms. Castillo

the agreed upon sum of $500,000 would be impossible for

the City. Paying the bill would be difficult and probably

would require the City to make some hard choices

concerning budget cuts in other areas Ï but the undersigned

believes it could be done.

The undersigned also was somewhat taken aback b y the

testimony of the City's treasurer, who confirmed that,

following the settlement agreement in 2004, the City did not

reserve any funds to pay Ms. Castillo in the event a claim bill

were enacted. No persuasive explanation for this was given.

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March 10 , 2009

Page 9

In su m, while the City's ability to pay (or lack thereof) is a

legitimate factor for the L egislature to consider in deciding

whether to enact this bill, it is fundamentally a political or

policy consideration Ï not a legal one. From a legal

standpoint, the City' s financial condition diminishes neither

the strength of Ms. Castillo's claim nor the City's culpability in

connection with her injury.

Finally, the parties agree that the bill should be amended to

direct that the compensation be paid, not to Reyna Castil lo,

either individually or as a natural guardian, but rather to

Madonna Castillo, who is no longer a minor (as the bill

mistakenly declares) and is, in fact, the only claimant at this

juncture.

RECOMMENDATIONS: For the reasons set forth above, I recomme nd that Senate

Bill 56 (2009) be reported FAVORABLY, as amended.

Respectfully submitted,

John G. Van Laningham, Esq.

Senate Special Master

cc: Senator Nan Rich

Philip Twogood, Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 56

Ì32 5216ÇÎ 325216

LEGISLATIVE ACTION

Senate . House

.

.

.

.

.

The Special Master on Claims Bills recommended the following:

1 Senate Amendment ( with title amendment )

2

3 Delete lines 46 - 54

4 and insert:

5 Section 2. The City of Hialeah is authorized and directed

6 to appropriate from funds of the city not otherwise appropriated

7 and to draw a warrant in the amount of $500,000, pursuant to the

8 settlement agreement, to be paid to Madonna Castillo, which sum

9 is inclusive o f costs and attorneyÓs fees as limited in

10 accordance with s. 768.28, Florida Statutes, as compensation for

11 the injuries sustained by Madonna Castillo due to the negligence

12 of the City of Hialeah.

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Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 56

Ì32 5216ÇÎ 325216

13

14 ================= T I T L E A M E N D M E N T ======= =========

15 And the title is amended as follows:

16 Delete everything before the enacting clause

17 and insert:

18 A bill to be entitled

19 An act for the relief of Madonna Castillo by the City

20 of Hialeah; providing for an appropriation to

21 compensate her for in juries and damages that she

22 sustained as a result of the negligence of the City of

23 Hialeah; providing a limitation on the payment of fees

24 and costs; providing an effective date.

25

26 WHEREAS, on July 3, 1998, Madonna Castillo, a minor, was

27 swimming in the publ ic pool at Milander Park in the City of

28 Hialeah, and

29 WHEREAS, the City of Hialeah managed and operated the pool

30 at Milander Park, and

31 WHEREAS, city employees allowed swimmers to be rowdy in and

32 around areas of the pool in which others were swimming, and

33 WH EREAS, the lifeguard on duty had abandoned his post, and

34 WHEREAS, while Madonna Castillo was standing in the pool

35 talking to her sister, Madonna Castillo was struck in the eye by

36 another swimmer, and

37 WHEREAS, as a result of the incident, Madonna Castillo

38 s uffered total vision loss in her right eye, and underwent two

39 surgeries, including the insertion of a microvalve to regulate

40 intraocular pressure, and

41 WHEREAS, Madonna CastilloÓs injuries will require the

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Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 56

Ì32 5216ÇÎ 325216

42 eventual removal of her right eye and the insertion of a

43 prosthetic eye, and

44 WHEREAS, after a jury trial resulting in a verdict in favor

45 of Madonna Castillo, the City of Hialeah initiated appellate

46 proceedings, and

47 WHEREAS, the parties entered into a settlement agreement,

48 pursuant to which, on April 2, 200 4, the City of Hialeah paid to

49 Madonna Castillo and her mother, Reyna Castillo, the sum of

50 $100,000 apiece, for a grand total of $200,000, and agreed to

51 support a claim bill by the Legislature in the amount of

52 $500,000 in favor of Madonna Castillo, NOW, TH EREFORE,

53

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