10-009602CB In Re: Senate Bill 70 (Carl Abbott) 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 70 (2011) Î Senator Joe Negron

Relief of Carl Abbott

SPECIAL MASTERÓS FINAL REPORT

THIS IS AN UNOPPOSED EQUITABLE CLAIM FOR $1.9

MILLION, IN LOCAL FU NDS, AGAINST THE PAL M BEACH

COUNTY SCHOOL BOARD FOR THE NEGLIGENCE O F A

BUS DRIVER WHO STRUC K AND SERIOUSLY INJU RED

CARL ABBOTT AS HE WA S ATTEMPTING TO WALK

ACROSS A ROADWAY WIT HIN A MARKED PEDESTRIAN

CROSSWALK.

FINDINGS OF FACT: On June 30, 2008, at about 2:00 p.m., Carl Abbott, then 68

years old, started to walk across U.S. Highway 1 at the

intersection with South Anchorage Drive in North Palm

Beach, Florida. Mr. Abbott was he ading west from the

northeast quadrant of the intersection, toward the

intersection's northwest quadrant. To get to the other side of

U. S. Highway 1, which runs north and south, Mr. Abbott

needed to cross the highway's three northbound lanes, a

median, t he southbound left turn lane, and the three

southbound travel lanes. Mr. Abbott remained within the

marked pedestrian crosswalk. (See Diagram below.)

At the time Mr. Abbott began to cross U. S. Highway 1, a

school bus was idling in the eastbound left - tu rn lane on

South Anchorage Drive, waiting for the green light. The bus

driver, Generia Bedford, intended to turn left and proceed

SPECIAL MASTERÓS FINAL REPORT Î SB 70 (2011)

February 1, 2011

Page 2

north on U. S. Highway 1. When the light changed, Ms.

Bedford drove the bus eastward through the intersection and

turned lef t, as planned, heading northward. She did not see

Mr. Abbott, who was in the center northbound lane of U. S.

Highway 1, until it was too late. The school bus struck Mr.

Abbott and knocked him to the ground. He sustained a

serious, traumatic brain injury in the accident.

Mr. Abbott received c ardiopulmonary resuscitation ( CPR ) at

the scene and was rushed to St. Mary's Medical Center,

where he was placed on a ventilator. A cerebral shunt was

placed to decrease intracranial pressure. After two months,

Mr. Abbott was discharged with the following diagnoses:

traumatic brain injury, pulmonary contusions, intracranial

hemorrhage, subdural hematoma, and paralysis.

Mr. Abbot presently resides in a nursing home. As a result

of the brain injury, he is unable to talk, walk, or take care of

himself. He is alert but has significant cognitive

impairments. Mr. Abbot has neurogenic bladder and bowel

and hence is incontinent. He cannot perform any activities

of daily living and needs constant, total care. His condi tion is

not expected to improve.

Based on the Life Care Plan prepared by Stuart B. Krost ,

M.D., Mr. Abbott's future medical needs, assuming a life

expectancy of 78 years, are projected to cost about $4

million, before a reduction to present value. Based on the

evidence presented, the undersigned is unable to determine

the approximate amount of Mr. Abbott's past medical

expenses, but it appears to be a sum between, very roughly,

$200,000 and $ 775,000.

SPECIAL MASTERÓS FINAL REPORT Î SB 70 (2011)

F ebruary 1, 2011

Page 3

DIAGRAM:

LEGAL PROCEEDINGS: In 2008, Mr. Abbott's son David, as guardian, brought suit on

Mr. Abbott's behalf against the School Board of Palm Beach

County. The action was filed in the Circuit Court in and for

Palm Beach County, Florida.

Before trial the parties attended a mediation conference and

agreed to settle the case for $2 million, $100,000 of which

the School Board paid immediately. Pursuant to the

settlement agreement, the $1.9 million balance will be paid,

if this claim bill is enacted, in eight yearly installment s of

$211,111.11, plus a ninth and final annual payment of

$211,111.12. These yearly payments will commence, if at

all, on the effective date of the claim bill, should it become

law, and continue for nine years, or until Mr. Abbott's death,

whichever firs t occurs. The School Board has agreed,

however, to make at least three years' worth of payments,

SPECIAL MASTERÓS FINAL REPORT Î SB 70 (2011)

February 1, 2011

Page 4

guaranteeing a minimum payout of $633.333.33 (if this claim

bill passes).

Out of the $100,000 settlement proceeds he has already

received, Mr. Abbot paid $25 ,000 in attorney's fees and,

after paying some expenses, netted $51,905.65. This

amount was paid to Mr. Abbott's guardian, David Abbott.

CLAIMANT'S ARGUMENTS: The Palm Beach County School Board is vicariously liable

for the negligence of its employee, w ho breached the duty of

a motorist to use reasonable care toward a pedestrian by

failing to yield the right - of - way to Mr. Abbott as he crossed

U. S. Highway #1 on foot within a marked crosswalk.

RESPONDENT'S POSITION: The Palm Beach County School Board d oes not oppose the

enactment of this claim bill. It is self - insured, however, and

would pay the balance of the agreed sum out of its General

Fund, which was the source of revenue used to satisfy the

initial commitment of $100,000. The School Board notes

that payment of the $1.9 million sought in this bill would be

difficult, given budgetary constraints, but it stops short of

urging that the bill be rejected on this basis.

CONCLUSIONS OF LAW: As provided in s . 768.28, Florida Statutes (2010), sovereign

i mmunity shields the School Board against tort liability in

excess of $200,000 per occurrence.

A school board is liable for any negligent act committed by a

public school bus driver whom it employs, provided the act is

with in the scope of the driver's em ployment. Hollis v. School

Board of Leon Cnty. , 384 So. 2d 661, 665 (Fla. 1st DCA

1980) . Ms. Bedford was the School Board's employee and

was clearly acting within the scope of her employment at the

time of the accident in question. Accordingly, the negl igence

of Ms. Bedford is attributable to the School Board.

Like any motorist, a school bus driver has a duty to look out

for pedestrians and to avoid creating hazardous situations.

See Resnick v. National Car Rental Systems, Inc. , 266 So.

2d 74, 75 (Fla. 3d DCA 1972) . While "th e rights of motorists

and pedestrians on highways are reciprocal," the motorist

"must exercise ordinary reasonable and due care toward a

pedestrian." Edwards v. Donaldson , 103 So. 2d 256, 259

(Fla. 2d DCA 1958) .

SPECIAL MASTERÓS FINAL REPORT Î SB 70 (2011)

February 1, 2011

Page 5

Here, the applica ble traffic regulations required that Ms.

Bedford yield to Mr. Abbott because he was crossing the

road within a marked crosswalk. See § 316.130(7), Fla.

Stat.; see also , § 316.075(1)(a)1., Fla. Stat. ("[V] ehicular

traffic, including vehicles turning right or left, shall yield the

right - of - way to other vehicles and to pedestrians lawfully

within the intersection or an adjacent crosswalk at the time

such [green] signal is exhibited ." ) Ms. Bedford breached the

duty to use reasonable care for the safety of Mr. Abbott. Her

negligence was the direct and proximate cause of Mr.

Abbott's serious and irreversible brain injury.

The sum that the School District has agreed to pay Mr.

Abbott ($ 2 million) is both reasonable and responsible, given

the nature and permanence of the injury and the Mr. Abbott's

substantial and continuing medical needs.

ATTORNEYS FEES: Section 768.28(8), Florida Statutes, provides that "[n] o

attorney may charge, dema nd, receive, or collect, for

services rendered, fees in excess of 25 percent of any

judgment or settlement. " Mr. Abbott's attorney, Joseph R.

Johnson, Esquire, has submitted an affidavit attesting that

all attorney's fees, lobbying fees, and costs will be paid in

accordance with the limitations specified in the claim bill.

SPECIAL ISSUES: The claim bill requires some relatively technical amendments

to conform to the parties' settlement agreement. The

anticipated revisions, which the claimant's counsel is

expected to prepare, will not change the bill's substance in

any meaningful way.

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

Bill 70 (2011) be reported FAVORABLY , as amended.

Respectfully submitted,

John G. Van Laningham

Senate Special Master

cc: Senator Joe Negron

R. Philip Twogood , Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2011 SPECIAL MASTER AMENDMENT

Bill No. SB 70

Ì159200jÎ 159200

LEGISLATIVE ACTION

Senate . House

.

.

.

.

.

The Special Master on Claim Bills recommended the following:

1 Senate Amendment

2

3 In title, delete lines 22 - 27

4 and insert:

5 WHEREAS, the Palm Beach County School Board unanimously

6 passed a resolution in support of settling the lawsuit that was

7 filed in this case, tendered payment of $100,000 to Carl Abbott,

8 in accordance with the statutory limits of liability set forth

9 in s. 768.28, Florida Statutes, and does not oppose the passage

10 of this claim bill in favor of Carl Abbott in the amount of

11 $1,900,000, as structured , NOW, THEREFORE,

12

Page 0 of 0

2/20/2011 3:02:27 PM 600 - 01776 - 11