10-009578CB In Re: Senate Bill 34 (Angela Isham) vs. * Status: Closed DOAH Final Order on Monday, March 21, 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 Fav /1 amendment

February 1, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 34 (2011) Senator Charlie Dean

HB 185 (2011) Representative Debbie Mayfield

Relief of Angela Isham

SPECIAL MASTERÓS FINAL REPORT

THIS IS A N EXCESS JUDGMENT CLAI M FOR $600,000

FROM LOCAL FUNDS BAS ED ON A JURY AWARD F OR

ANGELA ISHAM AND THE N A SETTLEMENT

AGREEMENT WITH THE CITY OF FT. LAUD ERDALE TO

COMPENSATE CLAIMANT FOR THE DEATH OF HER

HUSBAND, DAVID ISHAM , IN A MOTOR VEHICLE C RASH

THAT OCCU RRED DURING 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 dr iven by Detective 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 car.

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

SPECIAL MASTERÓS FINAL REPORT Î SB 34 (2011)

February 1, 2011

Page 2

detectives.

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 Hann old 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. Charles 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 t his case was whether Detective

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 willfully or

knowingly uses either high speed, illegal, or

evasive driving tactics in an effort to avoid

detention, apprehension, or arrest.

T he policy manual prohibits pursuits in unmarked police cars

Ðexcept when it is necessary t o apprehend an individual 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 is consistent with the policies of

many police departments throughout the United States ,

which have been revised in recent years in resp onse to the

SPECIAL MASTERÓS FINAL REPORT Î SB 34 (2011)

Febru ary 1, 2011

Page 3

injuries, deaths, and associated liability that often result from

high - speed police pursuits. 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 common for drug dealers to speed away and then ÐditchÑ

their cars and run away on foot. Hannold said that when the

BM W sped away again as 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 was merely

attempting a traffic stop which he had the right to do when

he saw the BMW driver run a stop sign.

The ot her 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, their

answers lacked credibility.

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

people from the neighb orhood and some of them were telling

media representatives and police investigators that the

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

Police Department obtained several witness statements.

One teenage boy said the police car was a block be hind the

BMW when the collision occurred, but the other witnesses,

including two adult women closer to the scene of the

collision, testified that the unmarked car was close behind

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

said that when the po lice 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 concluded

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

SPECIAL MASTERÓS FINAL REPORT Î SB 34 (2011)

February 1, 2011

Page 4

argues that, since Detective HannoldÓs vehicle stopped

wi thout leaving skid marks, it could not have been traveling

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

behind the BMW.

Based on the extensive 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, Detective 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 dri ver 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.

• Whether Detective Hannold was driving as fast as the

BMW and whether he was cl ose 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 pursuit. The definition of a pursuit is not

restricted to high speeds or sm all distances between

the vehicles.

• 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 ha d 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

SPECIAL MASTERÓS FINAL REPORT Î SB 34 (2011)

February 1, 2011

Page 5

driver, and the crash that killed David Isham, fall squ arely

within the predictable scenarios that the CityÓs pursuit policy

was designed to avoid. Pursuing a subject 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 on 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 determined

that Angela IshamÓs damages for the loss of her husbandÓs

companionship and for pain and suffering were $600,000.

Based upon the division of damages under the version of

s . 768 .81, F lorida Statutes , then in effect, the CityÓs liabilit y

was $1,435,219.25. T he City paid the sovereign immunity

limit of $ 200,000, leaving a balance of $1,235,219.25 , which

is the amount the Claimant originally sought through this

claim bill.

However, a t the time of the preparation of this report, the

parti es informed the Special Master that they had reached a

settlement of their disputes regarding this claim, and that

they would seek to amend SB 34 to reflect the terms of their

settlement agreement. Under the terms of the Partial

Satisfaction of Judgment a nd Settlement Agreement, the

City would pay $200,000 within 30 days of the effective date

of a claim bill that approves the settlement agreement , then

$100,000 per year for t hree year s, and then $50,000 per

year for two years after that , for a total of $60 0,000.

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 injuries

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 because he was acting

within the course and scope of his employment at the time of

SPECIAL MASTERÓS FINAL REPORT Î SB 34 (2011)

February 1, 2011

Page 6

the incident.

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

reasonabl e allocation and should not be disturbed.

A claim in the amount of $600,000, paid in installments as

described above, is fair and reasonable under the

circumstances.

ATTORNEYS FEES: ClaimantÓs attorneys have agreed to limit their fees to 25

percent of any amount awarded by the Legislature i n

compliance with s . 768.28(8), F lorida Statutes .

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

Bill 34 (2011) be reported FAVORABLY , as amended to

incorporate the parties' settlement agreement .

Respectfully submitted,

Bram D. E. Canter

Senate Special Master

cc: Senator Charlie Dean

Representative Debbie Mayfield

R. Philip Twogood , Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2011 SPECIAL MASTER AMENDMENT

Bill No. SB 34

Ì8932929Î 893292

LEGISLATIVE ACTION

Senate . House

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The Special Master on Claim Bills recommended the following:

1 Senate Amendment ( with title amendment )

2

3 Delete lines 50 - 56

4 and insert:

5 Section 2. The City of Ft. Lauderdale is authorized and

6 directed to appropriate from funds of the City not otherwise

7 appropriated and to draw warrants payable to Angela Isham,

8 individually, and as co - personal representative of the estate of

9 David Isham, deceased, in the amounts and in the timeframe

10 contained in the Partial Satisfaction and Settlement Agreement

11 between the City of Ft. Lauderdale and Angela Isham, said amount

12 totaling $600,000 above the statutory amount already paid.

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Florida Senate - 2011 SPECIAL MASTER AMENDMENT

Bill No. SB 34

Ì8932929Î 893292

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 lines 38 - 44

17 and insert:

18 WHEREAS, the City of Ft. Lauderdale has sufficient funds in

19 its Risk Management Fund available to pay this claim, NOW,

20 THEREFORE,

21

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