10-009572CB In Re: Senate Bill 22 (Estate Of Cesar Solomon) vs. * Status: Closed DOAH Final Order on Tuesday, February 1, 2011.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

40 2 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

2/1 /11 SM Favorable

February 1, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 22 (2011) Î Senator Anthony C. Hill, Sr.

HB 629 (201 1) Î Representative Charles McBurney

Relief of Estate of Cesar Solomon

SPECIAL MASTERÓS FINAL REPORT

THIS IS AN UNCONTEST ED CLAIM FOR $1,050, 000.00,

TO BE PAYABLE ANNUAL LY OVER THREE YEARS BY

EQUAL WARRANTS OF $3 50,000, BASED ON A

STIPULATED FINAL JUD GMENT BETWEEN THE ES TATE

OF CESAR SOLOMON AND THE JACKSONVILLE

TRANSPORTATION AUTHO RITY, WHICH RE SOLVED A

CIVIL ACTION THAT AR OSE FROM THE NEGLIGE NT

OPERATION OF A CITY BUS THAT CAUSED THE DEATH

OF CESAR SOLOMON.

FINDINGS OF FACT: This matter arises out of a collision that occurred on March

25, 2008, in Jacksonville, Florida, at the intersection o f

Commonwealth Avenue and Melson Avenue.

Commonwealth Avenue is a f our lane roadway that runs

east to west, while Melson Avenue is a two lane road that

runs north to south. The intersection is controlled by

overhead traffic signals.

At approximate ly 1:00 p.m., Cesar Solomon, a traffic signal

repairman employed by the City of Jacksonville, was in the

intersection effecting repairs to the traffic light. While making

the repairs, Mr. Solomon was standing on a platform lift that

was attached to a city - owned truck. William Turner, a co -

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2011)

February 1, 2011

Page 2

employee of Mr. Solomon 's , remained behind the lift truck

and directed traffic through the intersection. The lift truck,

which faced westbound on Commonwealth Avenue, featured

numerous flashing lights on the rear of th e vehicle that were

readily observable. An orange traffic cone was also placed

behind the lift truck to warn approaching drivers.

At 1:22 p.m., Gwendolyn Wells Mordecai, a City of

Jacksonville employee, was driving westbound on

Commonwealth Avenue in a bus owned by the Jacksonville

Transportation authority. Although Ms. Mordecai turned onto

Commonwealth Avenue at least four blocks from the

intersection where Mr. Solomon was working, and no visual

obstructions were present that would have mad e it difficult

for her to observe the lift vehicle, Ms. Mordecai inexplicably

failed to see the lift truck and struck it from behind. Moments

before the collision, Mr. Turner darted across

Commonwealth Avenue to avoid being hit.

Information subsequent ly retrieved from the bus's event data

recorder showed that the bus was traveling approximately 37

MPH at the time of impact and that there was little or no

braking prior to the collision. The posted speed limit on

Commonwealth Avenue was 40 MPH .

As a result of the force of the impact, the lift truck was

pushed well over 100 feet and jumped the curb on the other

side of the intersection. Tragically, Mr. Solomon was thrown

from the platform lift, the bottom of which was elevated

nearly 13 feet from the ground. Mr. Solomon sustained fatal

injuries and was pronounced dead at the scene of the crash.

Ms. Mordecai was uninjured.

At 1:48 p.m., Detective R.D. Peck, a traffic homicide

investigator with the Jacksonville Sheriff's Office, arrived at

the scene. During his investigation, which was conducted

over the course of several weeks, Detective Peck and a

colleague questioned Ms. Mordecai, Mr. Turner, and three

other eyewitnesses. During her interview, Ms. Mordecai

stated that she did not rem ember the accident and could not

explain what happened. On May 4, 2008, Detective Peck

issued Ms. Mordecai a citation for careless driving.

On April 9, 2008, the Jacksonville Transportation Authority

advised Ms. Mordecai in writing that her employment was

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2011)

February 1, 2011

Page 3

terminated due to her "gross negligence" in connection with

the collision.

Mr. Solomon, who was 52 years old at the time of his death,

retired from the United States Navy in 2004 after 20 years of

service and had been employed with the City of Jackso nville

since 2006. In addition to his employment with the City of

Jacksonville, Mr. Solomon worked part - time as a real estate

agent and managed several rental properties that he owned.

Mr. Solomon is survived by his wife of 23 years, Mrs. Ruby

Solomon, and two children, ages 22 and 19.

The undersigned has reviewed a report prepared by Dr.

Bernard F. Pettingill, an economist retained by Mr.

Solomon's estate. Applying standard economic principles

regarding growth and discount rates, Dr. Pet t ingill estim ates

that the range of economic losses due to Mr. Solomon's

death is between $1.25 million and $1.41 million. Dr.

Pe t tingill's conclusions, which the undersigned credits, were

not challenged by the Respondent.

Had the negligence action against the Jack sonville

Transportation Authority proceeded to trial, it is likely that a

jury would have returned an award far in excess of the $1.25

million settlement, as the settlement amount reflects no

damages other than the low range of future economic

losses. Accordingly, the undersigned concludes that the

settlement is both reasonable and responsible.

LITIGATION HISTORY : On October 20, 2008, in the circuit court for Duval County,

Mrs. Ruby Solomon, as the personal representative of the

estate of Mr. Solomon, filed an Amended Complaint against

the Jacksonville Transportation Authority, Ms. Mordecai, and

Jax Transit Manageme nt Corporation. The Amended

Complaint alleged that Mr. Solomon's untimely death was

the direct and proximate result of Ms. Mordecai's negligent

operation of the bus owned by the Jacksonville

Transportation Authority.

On June 30, 2010, the estate of Mr. Solomon and the

Jacksonville Transportation Authority entered into a

Stipulated Final Judgment, in which the parties agreed that

Ms. Mordecai was negligent and that there was no

comparative fault by Mr. Solomon. The parties also agreed

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2011)

February 1, 2011

Page 4

that the harms and losses far exceed the statutory limit and

would likely garner a multi - million dollar verdict. Based upon

the foregoing, the Jacksonville Transportation Authority

stipulated to the entry of a judgment in the amount of

$1,250,000.00, and further agreed to remain neutral with

respect to the passage of a claim bill.

The Jacksonville Transportation Authority has already paid

$200,000 against the judgment, leaving $1,050,000, which is

the amount sought through this claim bill.

CLAIMANT'S POSITION: Mr. So lomon's death was the direct and proximate result of

Ms. Mordecai's negligent operation of a Jacksonville

Transportation Authority bus.

RESPONDENT'S POSITION: T he Jacksonville Transportation Authority has remained

neutral in this proceeding and has taken no action adverse

to the passage of a claim bill.

CONCLUSIONS OF LAW: Ms. Mordecai had a duty to operate the bus at all times with

consideration for the safety of pedestrians and other drivers.

P edigo v. Smith , 395 So. 2d 615, 616 (Fla. 5th DCA 1981).

Specifically, it was Ms. Mordecai's duty to observe the lift

truck as she approached and bring her vehicle under such

control as the situation required . Ms. Mordecai breached

this duty of care and the breach was the proximate ca use of

Mr. Solomon's death.

The Jackso nville Transportation Authority, as Ms. Mordecai's

employer, is liable for her negligent act. Mercury Motors

Express v. Smith , 393 So. 2d 545, 549 (Fla. 1981) (holding

that an empl oyer is vicariously liable for compensatory

damages resulting from the negligent acts of employees

committed within the scope of their employment); see also

Aurbach v. Gallina , 753 So. 2d 60, 62 (Fla. 2000) (holding

that the dangerous instrumentality doctrine "imposes strict

vicarious liability upon the owner of a motor vehicle who

voluntarily entrusts that motor vehicle to an individual whose

negligent operat ion causes damage to another"); City of

Tampa v. Easton , 198 So. 753, 755 (Fla. 1940) ("When a

municipality owns a motor truck, a dangerous instrumentality

when in operation, that is being operated with the knowledge

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2011)

February 1, 2011

Page 5

and consent of the municipality through its officers or

employees and used on the streets for lawful . . . purposes,

the municipality may be liable for injuries to persons or

property proximately caused by negligence of the truck

driver in operating the truck.").

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

matter.

ATTORNEY'S FEES: The Claimant's attorneys have agreed to limit their fees to 25

percent of any amount awarded by the Legislature in

c ompliance with section 768.28(8), Florida Statutes.

Lobbyist's fees are included with the attorney's fees.

FISCAL IMPACT: The Jacksonvil le Transportation Authority has reserves in

the amount of $1.8 million. Therefore, operations would not

be adversely affected if this claim bill is approved.

SPECIAL ISSUES: The Estate of Cesar Solomon is presently engaged in

litigation in Duval Coun ty circuit court with the manufacturer

of the lift mechanism. The basis of the claim is that the

platform lift was defective because the height of the railing

was insufficient. After a careful revie w of the evidence in this

matter, the undersigned does not believe that the Claimant's

suit against t he lift manufacturer will likely re sult in any

meaningful recovery. Accordingly, the ongoing litigation

should not militate against the passage of the instant claim

bill. See also Fla. S. Rule 4.81(6) (2010) ("The hearing and

consideration of a claim bill shall be held in abeyance until all

available administrative and judicial remedies have been

exhausted; except that the hearing and consideration of a

claim that is still within the judicial or administrative systems

may proceed where the parties have executed a written

settlement agreement .") (Emphasis added).

As a result of Mr. Solomon's untimely death, Mrs. Solomon

received funds from various collateral sources, including:

$100,000 in insured motorist coverage; $58,000 in proceeds

from a life insurance policy issued by Prudential Insurance

Company; a $255 Social Security death benefit; and various

other death benefits totaling $357,000.

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2011)

February 1, 2011

Page 6

RECOMMENDATIONS : Fo r the reasons set forth above, the undersigned

recommend s that Senat e Bill 22 (2011) be reported

FAV ORABLY.

Respectfully submitted,

Edward T. Bauer

Senate Special Master

cc: Senator Anthony C. Hill, Sr.

Representative Charles McBurney

R. Philip Twogood , Secretary of the Senate

Counse l of Record