11-004098CB In Re: Senate Bill 42 (James D. Feurtado, Iii) 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 Fa vorable

December 2 , 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 42 (2012 ) Î Senator Anitere Flores

Relief of James D. Feurtado

SPECIAL MASTERÓS FINAL REPORT

THIS IS AN UNCONTEST ED CLAIM FOR $1,150, 000, IN

LOCAL FUNDS, AGAINST MIAMI - DADE COUNTY FOR

THE NEGLIGENCE OF A BUS DRIVER WHO STRUC K

AND SERIOUS LY INJURED JAMES FEURTA DO AS HE

WAS CROSSING A ROADW AY.

FINDINGS OF FACT: On February 12, 2009, at approximately 7:50 p.m., the

Claimant, James D. Feurtado, was j ogging along Pisano

Avenue in Coral Gables, Florida. The Claimant, a 37 - year -

old pharmaceutical sales representative who was in

excellent heal th, was proceeding eastbound toward

University Drive, which runs from north to south and

intersects Pisano Avenue at a right angle. The intersection

of Pisano Avenue and University Drive is a four - way stop

controlled by posted stop signs.

When he reached the intersection described above, the

Claimant used appropriate caution and began to lawfully

cross University Drive. At the same time, a Miami - Dade

County bus operated by Mr. Donnell Rollins approached the

intersection headed westbound on Pisano Avenue at a rate

of speed between 16 and 24 MPH . Although Mr. Rollins

slowed the bus to approximately 6.6 MPH , he ign ored the

posted stop sign and failed to bring the vehicle to rest. A s

SPECIAL MASTERÓS FINAL REPORT Î SB 42 (2012)

December 2, 2011

Page 2

Mr. Rollins made a right turn onto University Drive, the bus

accelerated to 10.1 MPH and struck the Claimant, who was

slightly more than h alfway through the intersection (footage

from t he bus' onboard video system reveals that Mr . Rollins'

attention was diverted to the left as he made the right turn).

Shortly thereafter, Officer Eduardo Cabral of the Coral

Gables Police Department arrived at the scene and initiated

an accident investigation. Officer Cabral determined that Mr.

Rollins had violated s. 316.123(2)(a), Florida Statutes, by

running the stop s ign, and was therefore solely at fault.

The Claimant, whose face and skull had been crushed by

the impact with the bus, was rushed to the Jackson

Memorial Hospital Ryder Trauma Unit. Upon the Claimant's

arrival at the hosp ital, an examination reve aled multiple

injuries to his brain, which included a large hematoma in the

left hemisphere, a subarachnoid hemorrhage , and several

hemorrhagic contusions. In addition, the Claimant sustained

a right maxillary sinus fracture.

During surgery, the Claimant underwent a left frontoparietal

craniectomy (i.e., a portion of the Claimant's skull was

removed) a nd the placement of a drain. Unfortunately, the

Claimant developed hydrocephalus following his first

surgery, which required t he placement of a shunt dur ing a

later surgical procedure. Although the Claimant's physicians

were able to replace a portion of the Claimant's skull

approximately eig ht months after the accident (the skull was

kept frozen), a visible defect is still prese nt.

At present , the Claimant remains with permanent mild to

moderate traumatic brain damage as a result of the collision .

I n addition, the Claimant continues to suffer from deafness in

one ear, vertigo, headaches, scarring, and mild psychiatric

i ssues.

Although the Claimant recently transitioned back to work (in

the same pharmaceutical sales position he held prior to the

accident), he is finding it difficult to perform his duties as

efficiently as he did prior to his brain injury. In particula r, the

Claimant's ability to remember pertinent information has

been impaired, and he often loses his train of thought when

speaking with customers. In addition, the Claimant is much

less able to learn new product information and keep himself

SPECIAL MASTERÓS FINAL REPORT Î SB 42 (2012)

December 2, 2011

Page 3

organized. Further, the Claimant's deafness in one ear

makes it nearly impossible for him to successfully interact in

social situations with physicians and other cus tomers, which

is an essential component of pharmaceutical sales.

The total present value of the Claimant's economic damages

from the collision is $1,823, 468 . This amount is comprised

of future and past lost earning capacity of $508,083 ,

anticipated future m edical expenses of $1,176,840 , and past

medical expenses of $138,545.

DIAGRAM:

SPECIAL MASTERÓS FINAL REPORT Î SB 42 (2012)

December 2, 2011

Page 4

LITIGATION HISTORY: On November 13, 2009, in the circuit court for the Eleventh

Judicial Circuit , the Claimant filed a complaint for d amages

against Miami - Dade County. The c omplaint alleged that

Miami - Dade County was vica riously liable for the injuries the

Claimant su stained as a result of Mr. Rollins' negligent

operation of a city bus.

On November 3, 2010 , the parties successfully reached a

mediated settlement in the amount of $1,250,000. Pursuant

to the terms of t he settlement , Miami - Dade County agr eed to

tender $100,000 to the Claimant up on the approval of the

settlement by the Board of County Commissioners. Miami -

Dade County further agreed not to oppose a claim bill in the

amount of $1,150,000.

Following the approval of the settlement agreement by the

Board of County Commissioners, Miami - Dade County

tendered $100,000 to the Claimant. After the deduction of

attorney's fees, costs, and the partial satisfaction of a

medical lien, the Claimant's net proceeds totaled

$32,305.29.

CLAIMANT'S P OSITION: Miami - Dade County is vicariously liable for the negligence of

its employee, who breached the duty of a motorist to use

reasonable care toward a pedestrian by running a stop sign

and striking the Claimant .

RESPONDENT'S POSITION: Miami - Dade County supports this claim bill .

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

consideration for the safety of pedestrians and other drivers.

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

While "the right s of motorists and pedestrians 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).

In this case, Mr. Rollins was required to bring the bus to a

complete stop in at the intersection of University Drive and

Pisano Avenue, in accordance with the posted stop sign.

See § 316.123(2)(a), Fla. Stat. (2009) (" [E]very driver of a

vehicle approaching a stop intersection indicated by a stop

sign shall stop at a clearly marked stop line "); see also §

316.130(15), Fla. Stat. (2009) ("[E]very driver of a vehicle

shall exercise due care to avoid colliding with any

SPECIAL MASTERÓS FINAL REPORT Î SB 42 (2012)

December 2, 2011

Page 5

pedestrian"). By failing to come to a complete stop, Mr.

Rollins breached the duty to use reasonab le care for the

safety of the Claimant. Mr. Rollins' negligence was the direct

and proximate cause of the Claimant's injuries.

Miami - Dade County, as Mr. Rollins' 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 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").

Finally, the undersigned concludes that given the nature of

the Claimant's injuries an d his continuing medical needs, the

sum Miami - Dade County has agreed to pay the Claimant

($1.25 million, minus the $100,000 already tendered) is both

reasonable and responsible.

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

Claimant's be half. During the 2011 session , the bill (SB 324)

died on Calendar.

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. Lobbyist's

fees are included with the attorney's fees.

SOURCE OF FUNDS : If Senate Bill 42 is approved, Miami - Dade Transit operating

funds will be used to satisfy the claim.

RECOMMENDATIONS: For the reasons set forth above, the undersigned

recommends that Senate Bill 42 (2012 ) be reported

FAVORABLY .

SPECIAL MASTERÓS FINAL REPORT Î SB 42 (2012)

December 2, 2011

Page 6

Respectfully submitted,

Edward T. Bauer

Senate Special Master

cc: Senator Anitere Flores

Debbie Brown , Interim Secretary of the Senate

Counsel of Record