11-004088CB In Re: Senate Bill 22 (Jennifer Wohlgemuth) vs. * Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, April 2, 2012.

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

12/2 /11 SM Fav/1 amendment

December 2 , 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 22 (2012 ) Î Senator Christopher L. Smith

Relief of Jennifer Wohlgemuth

SPECIAL MASTERÓS FINAL REPORT

THIS IS A CONTESTED CLAIM FOR $8,624,754 .40 BASED

ON A BENCH TRIA L AWARD FOR JENNIFER

WOHLGEMUTH AGAINST THE PASCO CO UNTY

SHERIFFÓS OFFICE TO COMPENSATE CLAIMANT FOR

INJURIES SUSTAINED I N A MOTOR VEHICLE CR ASH

RESULTING FROM THE N EGLIGENT OPERATION O F A

POLICE VEHICLE.

FINDINGS OF FACT: On Janu ary 3, 2005, at approximately 1:35 a.m., the

Claimant, Jennifer Wohlgemuth, was operating her Honda

Accord southbound on Regency Park Boulevard in New Port

Richey, Florida. The Claimant, who was not wearing her

seatbelt, was in the process of dropping off several

passengers with whom she had been socializing earlier that

evening.

As the Claimant headed southbound on Regency Park

Boulevard, she approached the intersection of Ridge Road,

which is controlled by a traffic light in all four directions.

Unbe knownst to the Claimant, a fleeing motorist, Scott

Eddins, had proceeded through the intersection a short time

earlier headed eastbound on Ridge Road. Closely pursuing

Mr. Eddins were three police vehicles with the Port Richey

and New Port Richey Police D e partments. A fourth law

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2012)

December 2, 2011

Page 2

enforcement vehicle, operated by Pasco County Sheriff's

Deputy Kenneth Petril lo, was well behind the pursuit and

trailed the other patrol cars by 10 to 30 seconds.

Although the traffic signal at the intersection was red for

vehi cles traveling eastbound on Ridge Road, Deputy Petrillo

entered the intersection against the light, without slowing, at

a rate of travel that substantially exceeded the 45 MPH

speed limit. Although Deputy Petrillo's patrol vehicle was

equipped with a sire n, he neglected to activate it. Almost

immediately upon entering the intersection, Deputy Petrillo

struck the front right portion of the Claimant's Honda Accord,

which had lawfully proceeded into the intersection several

seconds earlier.

As a result of the impact, which was devastating, the

Claimant's vehicle traveled approximately 15 feet across a

grass shoulder and sidewalk, at which point it struck a metal

railing and came to rest. The front right of the Claimant's

vehicle was demolished, and the en tire right side was dented

with inward intrusion. In addition, the front windshield, rear

windshield, and right side windows were shattered and

broken away.

T he Claimant exited her vehicle following the collision , but

collapsed in the roadway moments later due to the serious

nature of her injuries. The Claimant was subsequently

transported to Bayfront Medical Center for treatment.

Shortly after the accident, Florida Highway Patrol Corporal

Erik W. Bromiley initiated an investigation to determine the

cause of the collision. During his investigation, Corporal

Bromiley learned that three Alprazolam (an anti - depressant)

tablets, totaling 1.8 grams, had been discovered in the

Claimant's wallet. In addition, sev eral witnesses advised

Corporal Bromiley that the Claimant had consumed alcoholic

beverages at a bar earlier in the evening. Ultimately,

however, Corporal Bromiley could not conclude that the

Claimant was impaired by drugs or alcohol at the time of the

ac cident.

While Corporal Bromiley remained at the scene to question

witnesses and inspect the crash site, a second trooper

responded to Bayfront Medical Center and obtained blood

samples from the Claimant. Testing of the blood, which was

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2012)

December 2, 2011

Page 3

drawn approximat ely two and one - half hours after the

accident, revealed that the Claimant's blood alcohol level

was .021 and .022, which is below the legal limit of .08. In

addition, cocaine metabolit es and Alprazolam were detected.

Jeffrey Hayes, a toxicologist emplo yed with the Pinellas

County Forensic Laboratory, estimated that at the time of the

accident, the Claimant's blood alcohol level could have

ranged from .047 (a level in which the driver is presumed not

to be impaired pursuant to Florida law) to .097, which would

exceed the legal limit. Significantly, Mr. Hay es conceded

that any conclusion that the Claimant was impaired when the

collision occurred would be purely speculative.

Accident reconstruction established that Deputy Petrillo was

travelling between 64 MPH (with a margin of error of plus or

minus 5 MPH ) in a 45 MPH zone. It was further estimated

that the Claimant was travelling 34 MPH , in excess of the

posted 30 MPH limit for Regency Park Boulevard. However,

with the margin of error of plus or minus 5 MPH , the accident

reconstruction findings do not preclude a determination that

the Claimant was observing the speed limit.

Although it is clear that Deputy Petrillo's sir en was not

activated prior to the collision , the evidence is inconclusive

regarding the use of the patrol vehicle's emergency lights.

An additional investigation of the accident was conducted by

Inspector Art Fremer with the Pasco County Sheriff's Offi ce

Professional Standards Unit. The purpose of Inspector

Fremer's investigation was to ascertain if Deputy Petrillo had

committed any statutory violations or failed to observe the

policies of the Pasco County Sheriff's Office. At the

conclusion of his inv estigation, Investigator Fremer

determined that Deputy Petrillo violated General Order 41.3

of the Pasco County Sheriff's Office in the following respects:

(1) f ailing to activate and continuously use a siren while

engage d in emergency operations; (2) e n tering the

intersection against a red light without slowing or stopping,

which was nec essary for safe operation; (3) e ntering the

intersection at a speed gr eater than reasonable; and (4)

f ailing to ensure that cross - traffic flow had yielded. In

addition, Investigator Fremer concluded that Deputy Petrillo

had violated s. 316.072(5), Florida Statutes, which provides

that the operator of an emergency vehicle may exceed the

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2012)

December 2, 2011

Page 4

maximum speed limit "as long as the driver does not

endanger life or property." As a r esult of his misconduct,

Deputy Petrillo was suspended for 30 days without pay.

With respect to the Claimant's driving, the undersigned

credits the testimony of Amanda Dunn, an eyewitness

driving three to four car lengths behind the Claimant, who

noticed no unusual driving and testified that the "coast was

clear" when the Claimant entered the intersection.

Accordingly, the undersigned finds that she operated her

vehicle in accordance with the law and did not cont ribute to

the accident.

As a result of the collision, the Claimant suffered severe

closed head trauma, which included a subdural hematoma of

the right frontal lobe and a subarachnoid hemorrhage. As a

result of significant swelling to her brain, a portion of the

Claimant's skull was removed. The Claimant remained in a

coma for approximately three weeks following the accident,

and did not return home until August of 2005.

At the time of the final hearing in this matter, the Claimant

continues to suffer from severe impairment to he r memory, a

partial loss of vision, poor balance, urinary problems,

anxiety, dysarthric speech, and weight fluctuations. Further,

the damage to the Claimant's frontal lobe has left her with

the behavior, judgment, and impulses similar to those of a

seven - year - old child. As a consequence, the Claimant

requires constant supervision and is unable to hold a job,

drive, or live independently.

LITIGATION HISTORY: On March 17, 2007, the Claimant filed an Amended

Complaint for Negligence and Demand for Jury Trial in the

Sixth Judicial Circuit, in and for Pasco County. In her

Amended Complaint, the Claimant sued Robert White, as

Sheriff of Pasco County, for injuries she sustained as a

result of Deputy Petrillo's negligence. On March 9 - 11 ,

Circuit Judge Stanl ey R. Mills conducted a bench trial of the

Claimant's negligence claim.

On March 12, 2009, Judge Mills rendered a verdict in favor

of the Claimant and awarded :

$299,2 84.32 for past medical expenses.

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2012)

December 2, 2011

Page 5

$5,786,983 .00 for future medical expenses.

$1,055, 000.00 for future lost earnings.

$500,000.00 for past pain and suffering.

$1,500,000 for future pain and suffering.

The trial judge further determined that Deputy Petrillo was 95

percent responsible for the Claimant's injuries, and that the

Claimant was 5 percent responsible due to her failure to

wear a seatbelt. With the allocation of 5 percent

responsibil ity to the Claimant, the final j udgme nt for the

Claimant totaled $8,724,754.50.

The Respondent appealed the final judgment to the Second

District Court of Appeal. In its initial brief, the Respondent

argued that the trial court erred b y : ( 1) failing to allocate any

responsibility to the Claimant based upon her blood alcohol

level; ( 2) awarding lost wages that were not supported by

competent substantial evidence; ( 3) failing to allocate any

responsibility to the Claimant based upon her driving in

excess of the speed limit; and ( 4) failing to allocate any

responsibility to the Scott E ddins, the fleeing motorist. Oral

argument was granted, and on March 10, 2010, the Second

District Court of Appeal affirmed the trial court without a

written opinion.

CLAIMANT'S ARGUMENTS: Deputy Petrillo's negligent operation of his patrol

vehicle w as the proximate cause of the Claimant's

injuries.

The trial court's findings as to damages and the

apportionment of liability were appropriate.

RESPONDENT'S The Pasco County Sheriff's Office objects to any

ARGUMENTS: payment to the Claimant through a claim bill .

A t the time of the collision, the Claimant was not

wearing her seat belt and was impaired by alcohol,

drugs, or a combination of the two, and as such, more

than 5 percent of the fault should b e allocated to her.

S ome responsibility should be apportioned to Scott

Eddins, who was being pursued by multiple law

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2012)

December 2, 2011

Page 6

enforcement vehicles at the time Deputy Petrillo

collided with the Claimant's vehicle.

CONCLUSIONS OF LAW: Deputy Petrillo had a dut y to operate his vehicle at all times

with consideration for the safety of other drivers. See City of

Pinellas Park v. Brown , 604 So. 2d 1222 , 1226 (Fla. 1992)

( holding officers conducting a high - speed chase of a man

who ran a red light had a duty to reaso nably safeguard

surrounding motorists ); Brown v. Miami - Dade Cnty. , 837 So.

2d 414, 417 (Fla. 3d DCA 2001) ("Florida courts have found

that police officers do owe a duty to exercise reasonable

care to protect innocent bystanders . . . when their law

enforce ment activities create a for e seeable zone of risk");

Creamer v. Sampson , 700 So. 2d 711 (Fla. 2d DCA 1997)

(holding police owed duty to innocent motorist during high

speed pur suit of traffic offender). It was entirely foreseeable

that injuries to motorists such as the Claimant could occur

where Deputy Petrillo entered an intersection at a high rate

of speed, without slowing, against a red light, and without his

siren activated. Furthe r, Deputy Petrillo failed to comply with

s. 316.072(5), Florida Statutes, which provides that the

operator of an emergency vehicle may exceed the maximum

speed limit "as long as the driver does not endanger life or

property." Deputy Petrillo breached his duty of care and the

breach was the proximate cause of the Claimant's injuries.

T he Pasco County Sheriff's Office , as Deputy Pet rillo's

employer, is liable for his negligent act . Mercury Motors

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

that an employer is vicariously liable for compensa tory

damages resulting from the negligent acts of employees

committed within the scope of their employment).

The circuit judge's allocation of 95 percent liability to the

Pasco County Sheriff's Office is reasonable and should not

be disturbed. The evid ence failed to establish that the

Claimant was impaired or that her operation of the vehicle

contributed to the accident. Further, as Deputy Petrillo was

well behind the pursuit, the zone of risk created by Scott

Eddins (the fleeing motorist) had moved be yond the

intersection of Regency Park Boulevard and Ridge Road at

the time of the collision. Accordingly, the trial court correctly

determined that no fault should be apportioned to Mr.

Eddins.

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2012)

December 2, 2011

Page 7

The undersigned further concludes that the damages

awa rded to the Claimant were appropriate. This includes the

$1,055,000.00 for future lost earnings, which was based on

the reasonable and conservative assumption that the

Claimant did not possess a high school diploma, when in

fact she had graduated from hig h school and planned to

attend community college.

LEGISLATIVE HISTORY: This is the second year that a bill has been filed on the

Claimant's behalf. During the 2011 session, the bill (SB 50)

was indefinitely postponed and withdrawn from consideration

on May 7, 2011.

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

percent of any amount awarded by the Legislature in

compliance with s. 768.28 (8), Florida Statutes.

FISCAL IMPACT: The Respondent has already paid the statutory maximum of

$100,000.00, leaving $8,624,754.40 unpaid. Pur suant to the

Sheriff's Automobile Risk Program (a self - insurance pool),

an additional $332,000 is at the Respondent's disposal. The

remaining balance would be paid by Pasco County funds.

Respondent 's General Counsel, Jeremiah Hawkes, advises

that the Pasco County Sheriff's Office is in the midst of a

significant budget crisis that would be exacerbated by the

passage of the instant claim bill .

Notwithstanding the Respondent's budgetar y woes, the

undersigned concludes that the Claimant is presently entitled

to the full amount sought. In the alternative, it would not be

inapp ropriate to amend Senate Bill 22 to direct Respondent

to pay the balance of $8,624,754.40 over a period of years.

COLLATERAL SOURCES: The Claimant receives $221 per month in Social Security

Disability Insurance.

SPECIAL ISSUES: Senate Bill 22 , as it is presently drafted, provides that

Deputy Petrillo failed to activate his patrol vehicle's

emergency lights. In light of the undersigned's finding that

the evidenced is inconclusive regarding the use of

emergency lights, Senate Bill 22 should be amended

accordingly.

The Respondent introduced evidence that that the Claimant

began using marijuana at the age of 16, as well as cocaine

SPECIAL MASTERÓS FINAL REPORT Î SB 22 (2 012)

December 2, 2011

Page 8

several years later . Although the Claimant sought help for

her addictions, s he voluntarily te rminated treatment roughly

two weeks prior to the collision with Deputy Petrillo's vehicle.

A s there was no evidence that the Claimant was impaired at

the time of the accident, the undersigned concludes that the

Claimant's history of drug addict ion should not militate

aga inst the passage of the instant claim bill.

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

recommend s that Senate Bill 22 (2012 ) be reported

FAVORABLY , as amended.

Respectfully submitted,

Edward T. Bauer

Senate Special Master

cc: Senator Christopher L. Smith

Debbie Brown , Interim Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2012 SPECIAL MASTER AMENDMENT

Bill No. SB 22

Ì535338:Î 535338

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 23 - 32

4 and insert:

5 which had already cleared the intersection. Deputy Petrillo had not activated his siren

6 and drove through a red light as he traveled eastbound on Ridge Road at a speed of

7 more than 20 miles per hour faster than the posted speed limit, striking the passenger

8 side of JenniferÓs vehicle, and

9 WHEREAS, none of the numerous witnesses to the crash heard

10 Deputy PetrilloÓs siren, and after the crash Deputy PetrilloÓs

11 siren switch wa s in the ÐradioÑ mode, which indicates that the

12 siren was not activated at the time of the crash, and

13

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