09-000227CB In Re: Senate Bill 524 (Fatta) vs. * Status: Closed DOAH Final Order on Friday, May 8, 2009.

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Office (BSO) were involved in a joint federal-state task force

known as LEACH (Law Enforcement Against Child Harm),

which was investigating chil d pornography-related crimes.

Wilk and his partner, Kelly Jones, became targets of a LEACH investigation.

BSO knew that Wilk and Jones had criminal histories,

possessed firearms, and were potentially dangerous. Jones

had been arrested in 2001 on feder al charges arising from

his alleged use of the internet to entice a childto have

sexual relations, as well as possession, distribution, and

transmission of child pornography. He had been convicted

of those crimes and, in 2002, sentenced to pr ison, where he

remained until his release in June 2003. In connection with the criminal proceedings against Jones, Wilk had

communicated a number of spec ific threats against law

enforcement personnel, the gist of which being that he intended to hunt down and kill cops in retaliation for the

prosecution and imprisonment of Jones. In November 2001,

Wilk had been arrested for making such threats.

Wilk's threats had been credible, for he was a skilled

marksman. He had participated in shooting contests

throughout the state in 2001. That same year, he had

bought a .45 caliber Ruger fire arm (his second) and a 9

millimeter Smith and Wesson pistol; in 2003 he had added a

12 gauge shotgun and a Winches ter 30-30 rifle to his

arsenal.

In July 2004, Jones was indi cted on charges of possessing

and transmitting child pornography. Responsibility fo r

executing the warrant for his arrest, together with a search

warrant covering the house in which Jones and Wilk lived, fell to BSO, which accordingly exercised operational control

over the mission. Aware of W ilk's history of threatening

behavior, the presence of firea rms in the home, and the fact

that both men were HIV posit ive, BSO deployed its SWAT

Team pursuant to written pr ocedures requiring the use o

f

such specially trained and equipped officers when executing "high risk" search and arrest wa rrants. On July 15, 2004,

Jones was arrested without in cident at the home in Fort

Lauderdale where he and Wilk lived.

A fter his arrest, Jones was taken to the St. Lucie County jail,

where he was incarcerated pending trial. In telephone

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conversations with Jones, which were monitored and recorded, Wilk expressed his belief that the police would

return to their home with another search warrant and

probably arrest him, too. W ilk proved to be correct. On

A ugust 18, 2004, a U.S. Magistrate signed one warrant

authorizing the search of the Jones/Wilk residence, and

another warrant for the arrest of Wilk, on charges relating to

child pornography and witness tampering.

BSO was again in charge of se rving the warrants. The

detectives planning the mission, believing (with good reason) that Wilk was armed and dangerous, requested the SWAT

Team. This request was denied. The evidence presented at hearing does not specifically i dentify the individual(s) who

made this crucial decision. There is also no persuasive

evidence as to why , contrary to established policies and

procedures, which clearly and unambiguously indicated that only specially trained and equipped officers should be sent

into such a high risk situation, it was decided not to use the

SWAT Team for the arrest of Wilk.

On the evening of August 18, 2004, a briefing was held

concerning the execution of the warrants, which was

planned to take place the follo wing day. The participants in

the meeting were the higher rank ing officers involved in the

mission. Deputy Fatta and others designated to serve on

the "entry team" were not invit ed to the briefing. There is no

persuasive evidence as to why the entry team was not

included in the briefing. Du ring the briefing, a detailed

discussion of the dangers asso ciated with entering the

Jones/Wilk residence was had.

The operation to serve the warrants began as scheduled on

the morning of August 19, 2004. The entry team was briefed

after assembling at the stagi ng area. Deputy Fatta was

ordered to be the "point man"—t he first in line as the entry

team approached the house. As they advanced, the officers

observed that the front window had been covered with

reflective tape, which meant that they could not see into the

residence—but the occupant(s) could see them. The team

knocked on the front door and announced its presence.

There was no response. The te am forced its way in. Deputy

Fatta, who was the first one through the door, was

immediately struck in the ch est with a rifle round, which

pierced his protective vest and mortally wounded him.

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A nother officer was also shot and wounded, though his

injuries were not fatal. As mentioned above, the shooter,

Wilk, thereafter surrendered without further incident.

The historical facts set forth abov e are not in di spute. There

are, however, several determinations of ultimate fact that the

undersigned must make, and they follow.

First, the evidence is insufficient to prove, clearly and

convincingly, that BSO knew th at using regular officers (as

opposed to the SWAT Team) to serve the warrants on Wilk

was virtually certain to result in Deputy Fatta's or anothe r

officer's injury or death.

Second, the evidence is insufficient to prove, clearly and convincingly, that Deputy Fatta was unaware of the risks

involved in serving the warrants. While there is persuasive

evidence that Deputy Fatta was probably not told all the details of Wilk's history known to BSO, he likely was

informed that the suspect wa s believed to be armed and

dangerous, and in any event surely would have appreciated

that an inherently dangerous busi ness is afoot whenever law

enforcement personnel forcibly enter a residence, with

weapons drawn, to arrest the occupant at gunpoint. In short,

the danger was apparent.

Finally, the evidence is insufficient to prove, clearlyand

convincingly, that BSO deliberately concealed o r

misrepresented the danger for the purpose of preventing

Deputy Fatta or anyone else on the entry team from

exercising informed judgment ab out whether to execute the

warrants. While there is, to repeat,persuasive evidence that

Deputy Fatta was probably not told all the details of Wilk's

history known to BSO, there is no persuasive (much less clear and convincing) eviden ce that BSO intentionally

withheld such information in or der to deprive Deputy Fatta o

f

the facts upon which he might base a decision whether o r

not to obey his orders to arrest Wilk.

In sum, the evidence persuasiv ely, convincingly, establishes

that BSO's decision not to use the SWAT Team for this

operation, which decision contravened agency policy

respecting the service of warrant s in high risk situations, was

negligent, even grossly negligent. BSO's negligence, moreover, was a causal factor in the chain of events leading

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to Deputy Fatta's murder. Nevertheless, as inexplicable, inexcusable, and blameworthy as BSO's conduct was in this

instance, BSO did not commit an intentional tort that caused

Deputy Fatta's death. Rather, it was Wilk who deliberately

committed the intentional act of shooting Deputy Fatta.

LEGAL PROCEEDINGS: In 2004, Deputy Fatta's par ents, Joseph and Josephine

Fatta, brought a wrongful death ac tion against the Sheriff o f

Broward County. The action wa s filed in the Seventeenth

Judicial Circuit Court, in Broward County.

In September 2008, BSO settled the case with the Fattas.

Under the Settlement Agreem ent, BSO agreed, in exchange

for a release of further liability, to the entry of a Consent Final Judgment in the plaint iffs' favor, and against BSO, in

the sum of $2 million. Upon entry of the judgment, BSO promptly paid the Fattas $200,0 00, satisfying the full extent

of its liability under sovereign immunity. BSO further agreed

to support the passage of a claim bill for the excess of $1.8 million.

CLAIMANT’S AND BSO'S The Fattas and BSO agree and s ubmit that BSO knew o r

POSITION: should have known that the failure to use the SWAT Team to

arrest Wilk would result in gr eat bodily injury or death and

thus that, under the unique ci rcumstances of this matter, BSO's action constituted negligent conduct certain to cause

injury or death. Both sides urge the enactment of the instant

claim bill.

CONCLUSIONS OF LAW: A s provided in Section 768.28, Florida Statutes (2008),

sovereign immunity shields BSO against tort liability in

excess of $200,000 per occurrence.

Because Deputy Fatta was an employee of BSO who was

killed while performing the dutie s of his employment, BSO is

protected in this instance not only by sovereign immunity,

but also by workers' compens ation immunity. The applicable

statute provides in relevant part as follows:

(1) The liability of an employer

prescribed in s. 440.10 shall be

exclusive and in place of all other

liability, including vicarious

liability, of such employer to any

third-party tortfeasor and to the

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employee, the legal representative thereof, husband

or wife, parent s, dependents,

next of kin, and anyone otherwise entitled to recover damages from

such employer at law or in admiralty on account of such

injury or death, except as follows:

* * *

(b) When an employer commits

an intentional tort that causes the

injury or death of the employee.

For purposes of this paragraph,

an employer's actions shall be

deemed to constitute an intentional tort and not an

accident

only when the employee

proves, by clear and convincing

evidence , that:

1. The employer deliberately

intended to injure the employee;

or

2. [i] The employer engaged in

conduct that the employer knew ,

based on prior similar accidents

or on explicit warnings

specifically identifying a known

danger, was virtually certain to

result in injury or death to the

employee, and [ii] the employee

was not aware of the risk because [ first ] the danger was

not apparent

and [ second ] the

employer deliber ately concealed

or misrepresented the danger so

as to prevent the employee from

exercising informed judgment

about whether to perform the

work.

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Section440.11(1), Fla. Sta t. (2008) (emphasis and

bracketed material added).

The foregoing statute, which the Legislature enacted in 2003, codified, and substantially modified , a judicially

created, "intentional tort" exception to workers' compensation immunity. Under the judicially created

exception, known as the

Turner doctrine based on the

Florida Supreme Court case fr om which it arose, workers'

compensation immunity could be overcome by a showing that the employer's conduct, evaluated objectively (

i.e. from

the standpoint of a reasonable person), was substantially

certain to result in injury. See , e.g. , Turner v. PCR, Inc. , 754

So. 2d 683 (Fla. 2000); Pendergrass v. R.D. Michaels, Inc. ,

936 So. 2d 684, 689 (Fla. 4th DCA 2006). In contrast, the

statutory exception requires clear proof of subjective bad

intent—and more—before the empl oyer can be held liable in

tort for damages. In short, th e statutory exception,which

applies to incidents occurring after the statute's effective

date, as Deputy Fatta's murder di d, is much stricter than the

Turner doctrine and was plainly intended to strengthen

workers' compensation immunity. See Bakerman v. The

Bombay Co., Inc. , 961 So. 2d 259, 262 n.2 (Fla.

2007)(statue enacted in 2003, wh ich codified the "intentional

tort" exception and "height ened the standard needed to fall

within the exception," is not retroactive).

A brief examination of the stat ute will elucidate the preceding

conclusion. To begin, the st atute unambiguously provides

that, to overcome the immunity, the employee must present

clear and convincing evidence of the employer's wrongdoing.

"Clear and convincing evidence" is a demanding standard o f

proof which requires that the persuasive force of the evidence exceed the "greater wei ght" mark, so as to give the

fact-finder a high level of confidence in the truth of the matte

r

being proved. To meet the "cl ear and convincing" standard,

the "evidence must be of such we ight that it produces in the

mind of the trier of fact a fi rm belief or conviction, without

hesitancy, as to the truth of the allegations sought to be

established." In Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

Next, under Section 440.11(1)(b ), Florida Statutes, the

employer's actual intent is cont rolling. The st atute requires

clear proof that the employer's conscious object was to injure

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the employee (which is practi cally a criminal intent), o r

alternatively that employer knowingly exposed an employee

to an extreme (but latent) danger about which the employe r

deceived the employee. Under the alternative theory, which

is the one the Fattas assert is applicable here, the employer's conscious object need not have been to harm the

employee, necessarily, but rat her can be characterized as a

conscious desire to see a dangerous job accomplished regardless of the "butcher's bi ll" that will very probably have

to be paid with the employee's life or limb. To be clear, though, under either t heory, it is the employer's subjective

intent that controls.

Finally, it must be stresse d that, to def eat workers'

compensation immunity under t he alternative "intentional

tort" theory set forth in Sect ion 440.11(1)(b)2., Florida

Statutes, proving "merely" t hat the employer adopted a

"damn thetorpedoes" approach to a dangerous assignment is necessary but not sufficient. Rather, all five of the following elements must be clearly proved:

The employer actually knew that its employee

was virtually certain to be killed or injured

performing the assigned work.

The employer's act ual knowledge of the

extreme danger was based on particular, objective facts: either prior similar accidents or

explicit, specific warnings.

The employee was unaware of the extreme

danger not only because the danger was

latent, but also because

The employer deliber ately concealed or

misrepresented the danger.

The employer deliberately deceived the

employee about the nature or magnitude of the

risk for the purpose of depriving the employee

of sufficient truthful information upon which to

base an informed decisi on regarding whether

to proceed with the work.

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In this case, the evidence simply fails to establish, according to the requisite stand ard of proof, the exis tence of all of the

foregoing elements.

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

legislature.

ATTORNEYS’ FEES AND Section 768.28(8), Florida Stat utes, provides that "[n]o

LOBBYIST’S FEES: attorney may charge, demand, receive, or collect, fo r

services rendered, fees in e xcess of 25 percent of any

judgment or settlement." The inst ant claim bill provides that

the "total amount paid for a ttorney's fees, lobbying fees,

costs, and other similar expens es relating to the adoption o f

this act may not exceed 25 percent of the total amount awarded under this act." The Fattas' attorneys, Grossman

Roth, P.A, are prepared to abi de by these limitations.

It should be mentioned, however, that attorney's fees and costs have been paid out of previous recoveries. The Fattas

recovered $300,000 from Bankers Insurance Company

(Wilk's insurer) and from these proceeds paid their attorneys

$120,000 (or 40%) plus approx imately $2,600 in costs,

which left a net sum of $177, 383.54 for the Fattas. Upon

receipt of the $200,000 paym ent from BSO under the

Settlement Agreement, the Fattas paid approximately

$120,000 in litigation expenses, but no attorney's fees,

recovering a net sum just shor t of $80,000. Consequently,

the unpaid litigation expenses tota l but a few hundred dollars

at this point.

OTHER ISSUES: In addition to the recoveries mentioned above, the Fattas

have received, from multiple sources, death benefits totaling

nearly $500,000.

In the criminal case against Wilk, the federal district court

entered a Restitution Order dire cting Wilk to pay Deputy

Fatta's estate approximately $2.5 million. There is little reason to believe that Wilk, w ho is currently incarcerated, will

satisfy any meaningful porti on of this obligation.

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RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 524 (2009) be reported UNFAVORABLY.

Respectfully submitted,

John G. Van Laningham, Esq.

Senate Special Master

cc: Senator Christopher Smith

Philip Twogood, Secr etary of the Senate

Counsel of Record