10-009587CB In Re: Senate Bill 54 (Melvin And Alma Colindres) 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 Fav/1 amendment

February 1, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 54 (2011) Î Senator Ronda Storms

Relief of Melvin and Alma Colindres

SPECIAL MASTERÓS FINAL REPORT

THIS IS A CONTESTED CLAIM FOR $2,550,000 BASED

ON A FINAL JUDGMENT , ENTERED FOLLOWING A NON -

BINDING ARBITRATION, FOR MELVIN AND ALMA

CONLINDRES AND THE E STATE OF THEIR SON, KEVIN

COLINDRES, AGAINST T HE CITY OF MIAMI TO

COMPENSATE CLAIMANTS FOR THE DEATH OF KEV IN

COLINDRES, W HICH OCCURRED WHILE IN POLICE

CUSTODY.

FINDINGS OF FACT: Background

This matter arises out of the death of Kevin Colindres, a

mentally retarded and severely autistic 18 - year - old. Due to

his disabilities, Kevin's mental capacity was comparable with

t hat of a four - year - old child. Similar to many four - year - olds,

Kevin would occasionally throw temper tantrums. However,

as Kevin stood 5'9 and weighed approximately 210 pounds,

the family members with whom he resided (his mother,

father, and three sibling s) sometimes required the

assistance of law enforcement to control his behavior.

Evening of December 12, 2006

On December 12, 2006, Mrs. Alma Colindres, Kevin's

mother, asked Kevin to get dressed. When Kevin would not

comply, Alma told Kevin that she would take him to school,

SPECIAL MASTERÓS FINAL REPORT Î SB 54 (2011)

February 1, 2011

Page 2

which he hated, unless he cooperated with her. In response

to Alma's mention of school, Kevin became violent and

struck Alma in the face, put his hands around her neck, and

threw a chair at her. These actions prompted Nerania

Colindres, Kevin's sister, to call 911 at approximately 6:45

p.m. While waiting for police assistance, Abner Colindres,

Kevin's younger brother, held Kevin in a bear hug for

approximately 15 minutes.

Kimberly Pile was the f irst law enforcement officer to

respond to the 911 call. Upon Officer Pile's arrival at the

Colindres residence, Kevin had calmed down and was no

longer engaged in violent behavior. Officer Pile attempted to

further calm Kevin by telling him that she was there to help.

These efforts were successful, and Kevin sat down on the

couch next to Alma.

Although Alma suggested that Officer Pile could leave,

Nerania asked her to stay because Kevin had not seen a

doctor in over a year. Officer Pile remained o n scene and

several backup officers arrived at the home a short time

later. Although Kevin initially remained calm, he again

became agitated when Nerania mentioned that he should be

taken to the hospital to treat his ear, which was infected. At

that poin t, Kevin stood up and began to run in the direction

of his bedroom. As he did so, Kevin tripped and fell to the

floor, which resulted in a laceration to his head. Due to

Kevin's injury, Officer Pile radioed for medical assistance at

7:15 p.m. However, due to a miscommunication between

the police department and fire rescue dispatchers, "cut to the

head" was misinterpreted as "cut to the hand," which

resulted in the call being assigned an "Alpha response," the

slowest response level with the least priorit y.

While Kevin was still on the floor, the backup officers

immediately handcuffed Kevin's wrists behind his back and

removed him from the residence. Unfortunately, Kevin was

flailing his arms and otherwise struggling against the officers'

effo rts, which resulted in the officers placing Kevin face -

down on the asphalt. Several officers then proceeded to

attach a hobble restraint device to Kevin's ankles.

The undersigned finds that up to this point, the actions of the

City of Miami Police Of ficers were appropriate. However, as

detailed below, the events of December 12, 2006, took a

SPECIAL MASTERÓS FINAL REPORT Î SB 54 (2011)

February 1, 2011

Page 3

tragic turn for the worse after multiple officers held Kevin

face - down for a prolonged period of time.

Continued Restraint in Prone Position

With his wrists handcuffed behind his back and his ankles

hobbled, Kevin remained face - down in a prone position while

being held in place by Officers Hernandez, Rodriguez, and

Sanchez. This was contrary to the procedures of the Miami

P olice Department, w hich provide that handcuffed and

hobbled subjects should be moved to a sitting position as

quickly as possible to avoid the risk of asphyxiation.

Although positi onal asphyxiation and the procedures

regarding the proper use of a hobble device are subjects that

the Miami Police Department includes as part of officer

training, the policy was not learned by Officers Hernandez,

Rodriguez, and Sanchez. Indeed, later deposition testimony

of the three officers reveals that they were completely

unaw are of the rele vant procedures regarding the hobble

device and the positioning of subjects in custody.

Unfortunately , as Kevin attempted to reposition himself so he

could breathe, his behavior was misinterpreted by the

officers as resistance. As such, the three off icers improperly

continued to hold Kevin in a prone position. To make

matters worse, at least one of the three officers holding

Kevin, Officer Rodriguez, made breathing even more difficult

by applying pressure to Kevin's back.

After being improperly he ld in the prone position for 10 to 12

minutes, Kevin stopped bre athing. The officers did not

notice, h owever, as they again violated department

procedures by neglecting to adequately monitor Kevin .

Concerned, Kevin's mother advised the officers that she did

not believe that Kevin was breathing. In response, one of

the officers placed an ammonia tube in Kevin's nose, with no

effect.

Notwithstanding the obvious fact that Kevin was no longer

moving and in distress , the officers did not update fire rescu e

concerning his condition. Instead, contrary to department

procedures , the officers kept Kevin in the prone position until

the arrival of the paramedics at 7:30 p.m. By that time,

Kevin had been face - down for a total of 15 minutes, and had

not been brea thing for approximately three to five minutes.

SPECIAL MASTERÓS FINAL REPORT Î SB 54 (2011)

February 1, 2011

Page 4

Jose Siut, one of the responding paramedics, instructed the

officers to remove Kevin from the prone position. Paramedic

Siut quickly examined Kevin and discovered that his pupils

were fixed, his facial co mplexion was blue, and he was not

breathing. Although Kevin initially exhibited an idioventricular

rhythm of 30 beats per minute, he went "flatline" moments

later. CPR was then administered for the first time , and

Kevin was transported to the hospital. Tragically, the

prolonged period of respiratory arrest resulted in anoxic

encephalopathy (brain death), and Kevin subsequently

passed away at Coral Gables Hospital on January 5, 2007.

Cause of Death

In a report dated February 27, 2007, the Miami - Dade County

Medical Examiner concluded that the use of the prone

restraint position contributed to Kevin's cardiorespiratory

arrest, which in turn caused Kevin's brain death.

Specifically, the Medical Examin er found that the "prone

restraint position, and any position that restricts abdominal

excursion, will interfere with breathing." The report identified

Kevin's agitated emotional state as an additional factor

contributing to his death.

Notwithstandin g the plain language of the Medical

Examiner's report, the Respondent argues that Kevin's

cardiorespiratory arrest resulted not from positional asphyxia

(i.e., suffocation caused by the prone position), but rather

from "excited delirium." However, the und ersigned is not

persuaded by the opinions of Respondent's expert

witnesses, Drs. Dimaio and Mash, and instead credits the

conclusions of Dr. Werner Spitz, the Claimant's expert. Dr.

Spitz opined that Kevin's brain death was the result of

cardiac arrest in itiated by compression of the chest, which in

turn was caused by the use of the prone position and the

application of force to Kevin's back.

Kevin is survived by his mother, father, and three siblings.

LITIGATION HISTORY: On May 7, 2007, Alma and Me lvin Colindres, as the personal

representatives of Kevin's estate, filed a wrongful death

action against the City of Miami. Count one of the complaint

alleged, in relevant part, that the City of Miami: negligently

failed to monitor Kevin's vital signs whi le he was restrained;

negligently failed to timely call paramedics; and negligently

failed to provide CPR. Count two of the complaint asserted

SPECIAL MASTERÓS FINAL REPORT Î SB 54 (2011)

Februa ry 1, 2011

Page 5

that the City of Miami negligently trained its officers with

respect to the proper use of the hobble device and the

monitoring of vital signs.

Following extensive discovery, non - binding arbitration was

held on March 25, 2010, before Murray Greenberg, a former

city attorney for the City of Miami. In his April 28, 2010,

Arbitration Awa rd, Mr. Greenberg found that i f "the City of

Miami Police Officers had been more attentive to Kevin

Colindres after they restrained him, there is a strong

likelihood that he would be alive today." Based upon this

finding, Mr. Greenberg concluded that the City of Miami was

negligent in its treatment of Kevin. Acknowledging that it

was difficult to assess the appropriate amount of damages to

compensate parents for the pain and suffering associated

with the loss of a child, Mr. Greenberg determined that a

judgment of $2.75 million was wa rranted. Mr. Greenberg

also rejected the City of Miami's various legal defenses,

which included an argument that Kevin's estate was barred

from recovery by section 776.085, Florida Statutes.

The City of Miami was not bound by Mr. Greenberg's

findi ngs, and could have proceeded with a de novo jury trial.

Instead , the City of Miami decided to limit further litigation

costs by agreeing to the entry of a final judgment for $2.75

million, with the intention of vigorously opposing a claim bill.

The Res pondent has paid $200,000 against the final

judgment, leaving a balance of $2,550,000, which is the

amount sought through this claim bill.

CLAIMANTS' ARGUMENTS: City of Miami Police Officers negligently restrained

Kevin for 15 minutes in a prone position while

handcuffed and hobbled, which was the proximate

cause of his death.

The City of Miami's policies regarding the use of the

hobble device and the monitoring of vital signs , while

adequate, were negligently imparted to the officers

who respond ed to the Colindres residence.

RESPONDENT'S ARGUMENTS: The Respondent objects to any payment to the

Claimants through a claim bill.

SPECIAL MASTERÓS FINAL REPORT Î SB 54 (2011)

February 1, 2011

Page 6

The Claimants are barred from recovery by section

776.085, Florida Statutes, which provides that it is a

defense to a personal injury or wrongful death action

that the plaintiff's injury was sustained during the

commission or attempted commission of a forcible

felony.

Kevin's death was the result of "excited delirium," and

not from any negligence of the City of Miami or its

police officers.

The police officers were under no duty to perform

CPR.

Sovereign immunity bars the Claimant's negligent

training claim.

CONCLUSIONS OF LAW: It is well - settled that individuals in the custody or control of

the police are owed a duty of care that arises under the

common law of Florida. Kaisner v. Kolb , 543 So. 2d 732 ,

734 (Fla. 1989) ("[W]e find that petitioner was owed a duty of

care by the police officers when he was directed to stop and

thus was deprived of his normal opportun ity for protection.

Under our case law, our courts have found liability or

entertained suits after law enforcement officers took persons

into custody, otherwise detained them, deprived them of

liberty or placed them in danger . . . . So long as petitioner

was placed in some sort of 'custody' or detention, he is owed

a common law duty of care"); Moore v. Fla. Fish & Wildlife

Conservation Comm'n , 861 So. 2d 1251, 1253 (Fla. 1st DCA

2003) ("Thus, once appellant had been restrained of his

liberty, he was in th e 'forseeable zone of risk' . . . . Therefore

a duty of care was owed to the appellant"). The City of

Miami poli ce officers who responded to the C olindres

residence breached their duty of care , as it should have

been obvious to any reasonable person that restraining

Kevin for 15 minutes while he was face - down , handcuffed,

and hobbled, was dangerously and needlessly interfering

with his ability to breathe. The officers further breach ed their

duty of care when they failed to adequately monitor Kevin's

breathing and update fire and rescue regarding the change

in his condition. Consistent with the arbitrator's conclusion,

the undersigned is convinced by the greater weight of the

evidence that Kevin would be alive today had the officers not

committed these breaches of duty. Accordingly, the

SPECIAL MASTERÓS FINAL REPORT Î SB 54 (2011)

February 1, 2011

Page 7

Claimants have demonstrated that the negligence of the

officers was the proximate cause of Kevin's death.

Alternatively, liability in this matter was established by the

failure of the City of Miami to adequately train its officers

regarding the use of the hobble device. Contrary to the

Respondent's contention, the Claimants are not challenging

the content of the program, which was adequate. Indeed,

the Miami Police Training Center m a terials concerning the

hobble device expressly provide that officers should "never

allow the subject to lie on their side, stomach or chest," must

"allow [the] subject to lean b ack against a firm fixed object

. . . to relieve stress on the diaphragm," and must "make

certain that the subject is under constant supervision."

Instead, the Claimants argue that the Respondent was

negligent in the operation of its training (i.e., by failing to

successfully impart the training content to the officers). See

Me rcado v. City of Orlando , 407 F. 3d 1152, 1162 (11th Cir.

2005) (noting that to state a claim for negligent training,

plaintiff must show that the government was negligent in the

implementation or operation of the training program). In light

of the fact th at the three officers ho lding Kevin in place were

completely unaware that it was dangerous or improp er to do

so, the undersigned concludes that Respondent was

negligent in the operation of its hobble device training

program. This negligence was the proxi mate cause of

Kevin's asphyxiation and subsequent death.

T he City of Miami, as the officers' employer, is liable for their

negligence. Mercury Motors Express v. Smith , 393 So. 2d

545, 549 (Fla. 1981) (holding that an employer is vicariously

liable fo r compensatory damages resulting from the

negligent acts of employees committed within the scope of

their employment).

The undersigned has considered the Respondent's

argument that the Claimants are barred from recovery by

section 776.085 (1) , Florida Statutes, which provides that it

"shall be a defense to any action for damages for personal

injury or wrongful death . . . that such action arose from

injury sustained by a participant during the commission or

attempted commission of a forcible f elony. " Although Kevin

arguably committed a forcible felony, resisting arrest with

violence, by flailing his arms and legs while he was being

removed from the residence, see Wright v. State , 681 So. 2d

SPECIAL MASTERÓS FINAL REPORT Î SB 54 (2011)

February 1, 2011

Page 8

852, 853 (Fla. 5th DCA 1996), any criminal conduct on

Kevin's part ceased once he was handcuf fed and hobbled.

Any subsequent wiggling or movement on Kevin's part was

merely an attempt to breathe, and did not constitute a

criminal act. As such, his injuries were not sustained "during

the commission" of a cr ime, which is required by the plain

language of the statute for the defense to apply. See

Copeland v. Albertson's, Inc. , 947 So. 2d 664, 667 (Fla. 2d

DC A 2007) (holding that although the plaintiff committed an

aggravated assault against a grocery store cle rk, the assault

did not bar a civil action against store employees for injuries

inflicted upon the plaintiff after he fled the store, since the

"section 776.085 defense is applicable only to injuries the

plaintiff sustains during the commission or attempte d

commission of a forcible felony ") (emphasis added).

Accordingly, the undersigned concludes, as did the

arbitrator, that the Claimants are not barred from recovery by

section 776.085(1).

The undersigned does agree with the Respondent's

contention tha t the officers were under no legal duty to

perform CPR. See L.A. Fitness Int'l , LLC v. Mayer , 980 So.

2d 550, 559 (Fla. 4th DCA 2008) ( holding that CPR is more

than mere first aid, and that non - medical personnel certified

in CPR remain laymen and "should have discretion in

deciding when to utilize the procedure"). Nevertheless , the

Respondent is liable for Kevin's death based upon the other

grounds discussed above.

Finally, the undersigned concludes that $2,550,000, the

amount sought through this bill, i s reasonable and

appropriate, particularly in light of the fact that the Claimants

watched helplessly as their disabled child suffocated and

lapsed into unconsciousness.

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

matter.

ATTORNEYS FEES: The Claimants' attorneys have agreed to limit their fees to 25

percent of any amount awarded by the L egislature in

compliance with section 768.28(8), Florida Statutes.

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

FISCAL IMPACT: Should this claim bill be approved, the first $225,000 (the

amount remaining on the Self Insured Retention for this

SPECIAL MASTERÓS FINAL REPORT Î SB 54 (2011)

February 1, 2011

Page 9

claim) would be paid by Respondent from its Self Insurance

Trust Fund. The remaining $2,325,000 necessary to satisfy

the cla im bill would be provided by Respondent's excess

insurance coverage through State National Insurance

Company.

As the City of Miami's annual budget i s well in excess of

$400 million, the undersigned is not persuaded by the

Respondent's argument that cit y operations would be

adversely affected by an outlay of $225,000.

SPECIAL ISSUES: As it is presently drafted, Senate Bill 54 provides that the

backup officers "violated their training and the city of Miami's

policies by aggressively approaching Kevin Colindres,

causing Kevin Colindres to attempt to leave the room." In

light of the above factual findings, this sentence should be

deleted from the bill.

In addition, while it is true that the officers did not perform

CPR, they were under no legal obligat ion to do so.

Accordingly, Senate Bill 54 should also be amended to

remove the reference that officers "failed " to administer CPR.

RECOMMENDATIONS: For the reasons set forth above, the undersigned

recommends that Senate Bill 54 be reported FAVORABLY,

as amended.

Respectfully submitted,

Edward T. Bauer

Senate Special Master

cc: Senator Ronda Storms

R. Philip Twogood , Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2011 SPECIAL MASTER AMENDMENT

Bill No. SB 54

Ì873796aÎ 873796

LEGISLATIVE ACTION

Senate . House

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The Special Master on Claim Bills recommended the following:

1 Senate Amendment

2

3 In title, delete lines 28 - 53

4 and insert:

5 WHEREAS, the police officers then placed Kevin Colindres

6 into custody, handcuff ing him behind the back and t aking him out

7 of the house, where the police officers placed him prone on the

8 ground and applied a hobble restraint to his ankles, and

9 WHEREAS, in violation of their training and the City of

10 MiamiÓs policies and procedures, the police officers left Kevin

11 Colindres prone on the ground and applied weight to his back,

12 and

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Florida Senate - 2011 SPECIAL MASTER AMENDMENT

Bill No. SB 54

Ì873796aÎ 873796

13 WHEREAS, in violation of their training and the City of

14 MiamiÓs policies and procedures, the police officers left Kevin

15 Colindres in this position in excess of 10 minutes, and

16 WHEREAS, in vi olation of their training and the City of

17 MiamiÓs policies and procedures, the police officers failed to

18 appropriately check Kevin ColindresÓ vital signs, and

19 WHEREAS, in violation of their training and the City of

20 MiamiÓs policies and procedures, upon rea lizing that Kevin

21 Colindres had stopped breathing, the officers failed to advise

22 the fire rescue department of the urgency of the matter, thereby

23 delaying the response by fire rescue personnel , and

24

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