11-004099CB In Re: Senate Bill 44 (Irving Hoffman And Marjorie Weiss) vs. * Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, March 30, 2012.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

402 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

02/20/12 SM Unfavorable

February 20, 2012

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re: SB 44 (2012) Î Senator Mike Fasano

Relief of Irving Hoffman and Marjorie Weiss

SPECIAL MASTERÓS FINAL REPORT

THIS IS AN UNOPPOSED EQUITABLE CLAIM FOR

LOCAL FUNDS IN THE A MOUNT OF $ 2.4 MILLION

AGAINST THE CITY OF TALLAHASSEE FOR WRONGFUL

DEATH IN CONNECTION WITH THE MURDER OF

RACHEL HOFFMAN, WHO WAS SHOT TO DEATH WH ILE

ASSISTING THE TALLAH ASSEE POLICE DEPARTM ENT

AS A CONFIDENTIAL IN FORMANT.

PREFACE: At approximately 7:00 p.m. on May 7, 2008, Rachel

Hoffman, 23, was murdered on a lonely stretch of Gardner

R oad north of Tallahassee in Leon County, Florida. Her

killers were Andrea Green ("Green") and Deneilo Bradshaw

("Bradshaw"); these criminals were the targets of an

investigation by the Tallahassee Police Department ("TPD")

in which Ms. Hoffman, during the days leading up to her

death, had been providing assistance as a confidential

informant ("CI").

In December 2008, Ms. Hoffman's parents, Irving Hoffman

and Marjorie Weiss (the "Claimants"), brought a wrongful

death suit against the City of Tallahassee ("City"), alleging

that the negligence of TPD's officers had caused Ms.

Hoffman's death. On January 6, 2012, after selecting a jury

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 2

for the trial, the parties agreed to settle the wrongful death

action for $2.6 million. As part of the settlement, the Cit y

paid $200,000 to the Claimants and agreed to support a

claim bill for the remaining amount of $2.4 million.

As it happened, Senate Bill 44, which seeks relief for the

Claimants, had already been filed ahead of the 2012

legislative session and referred to the undersigned Special

Master. On November 28, 2011, an order had been entered

placing the claim bill proceeding in abeyance pursuant to

Senate Rule 4.81(6), which requires that all available legal

and admini strative remedies be exhausted before a claim bill

can be heard. On February 8, 2012, based on the

settlement of the civil action, the Claimants filed a motion

urging the Special Master to take the case out of abeyance

and schedule a hearing. After confe rring with the parties'

counsel, the undersigned issued a Notice of Hearing on

February 9, 2012, which announced that the hearing would

occur on Monday, February 13, 2012. The hearing took

place as scheduled on February 13. Many documents were

presented, as was an audio recording of the relevant TPD

radio transmissions. No witnesses testified.

The ultimate issue presented in this case is whether TPD's

negligence, if any, caused the brutal murder of Ms. Hoffman,

thereby making the City legally liable to her parents for

damages in a wrongful death suit. As explained in the

Conclusions of Law below, I conclude that TPD's actions,

even if negligent, were not the proximate cause of Ms.

Hoffman's deplorable death. Therefore, I must recommend

that this claim bill be reported unfavorably.

FINDINGS OF FACT: In March 2008, Officer Chris Pate of TPD received a tip that

Ms. Hoffman was selling a large amount of marijuana from

her apartment in Tallahassee. Following that, Officer Pate

and Investigator Ryan Pen der ("Pender") placed Ms.

Hoffman's apartment under surveillance. (Investigator

Pender knew Ms. Hoffman's name, having been told by a CI

in 2007 that she was a person who sold drugs in town.) The

officers gathered evidence of criminal activity, including

ledgers of drug sales pulled from the garbage, which was

presented to a judge, who found probable cause and issued

a warrant to search Ms. Hoffman's apartment. Pender and

other officers executed the search warrant on April 17, 2008.

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 3

The officers found felony amounts of marijuana in Ms.

Hoffman's apartment, plus a half - dozen ecstasy (MDMA)

pills, some Valium, and multiple items of drug paraphernalia.

This was not Ms. Hoffman's first encounter with law

enforcement. She had been arrested in February 200 7 for

possession of marijuana (a felony charge) and consequently

was, at the time of the search in April 2008, participating in a

pretrial intervention program known as Drug Court. Her

possession of marijuana on April 17, 2008, was Ï in addition

to being a felony Ï a clear violation of the Drug Court

agreement she had signed on April 20, 2007. (This was not

Ms. Hoffman's only violation of the agreement. Earlier in

April 2008, she had left Tallahassee and failed to show up

for a random drug test, which result ed in her having to spend

a weekend in jail.)

Pender interviewed Ms. Hoffman in her apartment. She did

not want to get into more legal trouble and asked if she could

be a n informant . Ms. Hoffman told Pender that selling

cannabis was her job (she was not otherwise gainfully

employed) and that she had been selling five to 10 pounds

of marijuana per week, worth between $4,800 and $5,200

per pound. (To put this in perspective, sales at this rate

would annualize at between $1.2 and $2.7 million gross.

The C laimants disagree with the notion that Ms. Hoffman did

anything other than sell small amounts of marijuana to her

friends. There is insufficient evidence for the undersigned to

determine whether Ms. Hoffman actually did as much illegal

business as she led Pender to believe, and she certainly

would have had reasons to exaggerate, e.g., to increase the

chances of being accepted as a CI. Regardless of the

quantities involved, however, the likelihood is that Ms.

Hoffman was making her living selling marijuana Ï she was

an experienced dealer, in other words, small - time perhaps,

but nevertheless not an amateur.) Ms. Hoffman impressed

Pender with her knowledge of the drug trade; she was quite

fluent in the street language in which drug deals are

transacted. Pende r offered to let Ms. Hoffman assist TPD as

a CI, and as a result she was not immediately arrested.

Instead, Pender instructed her to meet with him the next day,

April 18, at his office.

Ms. Hoffman appeared for the meeting with Pender, as

planned. She was told that if she provided substantial

assistance to TPD as a CI, she could work off the potential

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 4

charges stemming from the search of her apartment, which

were not insignificant: possession of cannabis with intent to

sell; possession of ecstasy; main taining a drug house;

possession of a controlled substance with intent to sell; and

possession of paraphernalia. She was offered, but declined,

the opportunity to call her criminal defense attorney;

according to multiple sources, Ms. Hoffman neither liked nor

trusted him. The evidence does not show that the police

threatened, bullied, coerced, or lied to Ms. Hoffman to

induce her to become a CI; to the contrary, the evidence

persuasively establishes that she was eager to cooperate,

and did so freely and v oluntarily. Ms. Hoffman signed the

documents in the "CI packet," including a Confidential

Informant Code of Conduct, which provided in part as

follows:

I, Rachel Hoffman, the undersigned, understand that

while I am cooperating and assisting the [TPD], agree

to the following:

14. I agree to cooperate with the [TPD] on my own

free will, and not as a result of any intimidation or

threats.

* * *

20. I hereby release the City of Tallahassee, the

State of Florida, the [TPD], its officers, agents,

affiliates and any other cooperating law enforcement

agency, from any liability or injury that may arise as a

result of this agreement.

Ms. Hoffman separately initialed each of the 20 numbered

paragraphs of the "Code," including the two quoted above.

Ms . Hoffman made her first controlled call as a CI that day

(April 18, 2008) to an individual named D.S. whom she knew

sold drugs in Tallahassee. The intent was to arrange a

purchase of ecstasy from D.S., but a deal was not made,

and Pender advised that the y would try again later.

That night, however, D.S. confronted Ms. Hoffman after

having learned that her apartment recently had been raided

by the police. She confessed to him that she was serving as

a CI, which effectively ended the attempt to set D.S. u p for a

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 5

buy - bust operation. Somewhat surprisingly, however, D.S.

was willing to work as a CI to help Ms. Hoffman avoid her

potential charges. Ms. Hoffman promptly reported this to

Pender, and he arranged to meet with them on April 21,

2008.

At the mee ting on April 21, D.S. signed up as a CI; his

assistance led to a successful buy - bust operation on

Ap ril 24, 2008, which was credited toward Ms. Hoffman's

substantial assistance. Of greater interest to this case,

though, is that it was D.S. who identifie d Green as a

potential target. D.S. told Pender that Green Ï who worked

at a carwash/tint shop on Tennessee Street Ï and another

man whose name he didn't know (it was Bradshaw) were big

dealers in drugs and other illegal items, including guns.

After leavin g the police station on April 21, D.S. and Ms.

Hoffman ran into Green at the carwash. D.S. introduced Ms.

Hoffman to Green; in the course of the conversation, D.S.

informed Green that Ms. Hoffman was looking to buy drugs,

and Green gave Ms. Hoffman his ph one number.

On April 22, 2008, Ms. Hoffman reported the contact with

Green to Pender. This led to Ms. Hoffman's second

operation as a CI, in which she made a controlled call to

Green to arrange a purchase of 1,500 ecstasy pills. This

was supposed to l ead to a buy - bust at the carwash, but the

operation was aborted because Green did not have the

drugs on hand and his supplier failed to deliver the pills in

time to complete the transaction without unreasonable delay.

Although this operation was not succe ssful, Ms. Hoffman

performed her role exactly as expected, without incident.

Ms. Hoffman's next operation took place on May 5, 2008.

The goal was for Ms. Hoffman to go to the carwash wearing

a wire and meet with Green to discuss purchasing drugs.

She fo llowed instructions and the operation went according

to plan Ï except that instead of meeting Green, Ms. Hoffman

met Bradshaw. Bradshaw informed her that he and Green

worked as a team, and that they could do the deal she

s ought the following day. Ms. Hoffm an later reported that

she was comfortable with Bradshaw.

O n Pender's instructions Ms. Hoffman arranged for the

transaction to take place on May 7, 2008. The plan was to

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 6

purchase 1,500 ecstasy pills, some cocaine, and a handgun,

for $13,000 in a buy - bust operation; this meant that upon

receiving a prearranged signal from Ms. Hoffman Ï who,

after being "wired" to surreptitiously transmit and record

communications, would be ma king the buy in her capacity as

a CI Ï the police would move in and arrest the suspects. As

originally conceived and planned, the deal was to occur at a

residence in the Summerbrooke neighborhood, located in

north Tallahassee on the east side of North Merid ian Road.

This was the home of the p arents of one of the suspects. A

Wa lmart store on Thomasville Road was identified as an

alternative location. While the operation was still in the

planning stage, the suspects told Ms. Hoffman during a

controlled call that they preferred to complete the transaction

in the parking lot near the tennis courts at Forest Meadows,

a park located on the west side of North Meridian Road,

several miles south of Summerbrooke. Because this

location was suitable for law enforceme nt purposes, Ms.

Hoffman was told to agree to meet the suspects at Forest

Meadows.

Shortly before the operation was to commence, a briefing

w as held at the police station, during which all of the

participating personnel and supervisors were informed of t he

details, including the newly chosen location, Forest

Meadows. After the briefing, the officers left to set up inside

and around the park. The personnel inside the park included

two arrest teams, one of which comprised current and former

TAC (Tactical Apprehension & Control) team members, and

a block vehicle whose assignment was to block the suspects'

escape from the park once the arrest teams approached to

detain the suspects. Four officers in individual vehicles were

dispatched to patrol north and so uth of the park, to locate the

suspects. Another surveillance vehicle and a DEA air plane

were assigned to monitor the house in Summerbrooke.

At 6:28 p.m., Ms. Hoffman received a phone call from Green,

who advised that he and Bradford were at Forest Meado ws.

At 6:30 p.m., Pender, Ms. Hoffman (who was wearing a wire

and carrying a separate recording device in her purse,

together with $13,000 in cash), another TPD officer, and

DEA Special Agent Lou Andris left the police station. Ms.

Hoffman and Pender wou ld commun icate with each other

during the operation via cell phone.

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 7

At 6:40 p.m., Pender pulled in to the parking lot at the

Maclay School, south of Forest Meadows. His plan was to

monitor Ms. Hoffman's wire from that location. At 6:41 p.m.,

Pender spoke with Ms. Hoffman on the phone for about one

and one - h alf minutes. She reported that the suspects had

told her to meet them at Roy alty Plant Nursery Ï which is

located about 1.5 miles north of Forest Meadows, on the

west side of North Meridian Road Ï and get into their car.

Ms. Hoffman told Pender that she would not enter the

suspects' car. At about this time (6:41 p.m.), Ms. Hoffman

t urned left, entering the Meridian Park, which is a separate

park containing baseball and soccer fields; it is located a bit

more than a half - mile south of Forest Meadows. Agent

Andris promptly advised the units that Ms. Hoffman had

made a wrong turn.

Pen der proceeded immediately to Meridian Park. Upon

arrival, he saw Ms. Hoffman's car facing North Meridian

Road, waiting to pull out. At 6:43 p.m., Pender spoke with

Ms. Hoffman on the phone for 20 seconds. Pender slowed

down to allow Ms. Hoffman to make a left turn onto North

Meridian Road, so that she could continue northbound

toward Forest Meadows. Pender instructed Ms. Hoffman to

proceed to the flashing yellow light and enter Forest

Meadows at that spot. He then pulled in to Meridian Park, to

monitor the wire from that location.

Ms. Hoffman drove north toward Forest Meadows. At

6:44:26 p.m., she began a phone conversation with Green

which lasted two minutes and 49 seconds (to 6:47:15 p.m.).

She stated that she was pulling in to the park with the te nnis

courts, i.e., Forest Meadows, "right now." Given that she

had left Meridian Park at around 6:44 p.m., it is reasonable

to infer that Ms. Hoffman reached the flashing yellow light at

close to 6:45 p.m., and it was at this time that she made the

remark about entering the park. In fact, however, Ms.

Hoffman did not turn left and head in to Forest Meadows.

Instead, she drove through the yellow light and continued

traveling north on North Meridian Road. At 6:45 p.m.,

Pender Ï having just learned that Ms. Hoffman had not

arrived in the park, and that none of the officers had his eyes

on her Ï made the first of several calls to Ms. Hoffman,

attempting to determine where she was . She did not

answer.

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 8

Meantime, Agent Andris, who had continued driving north on

N orth Meridian Road after reporting Ms. Hoffman's wrong

turn, observed the suspects at the Royalty Plant Nursery,

sitting in a BMW that was parked with its nose out by the

road. Agent Andris alerted the units to this fact at 6:46 p.m.

Pender responded by notifying the units at 6:46 p.m. that he

had lost wire contact with Ms. Hoffman and had been

attempting without success to communicate with her by

phone. Pender asked that the suspects' vehicle at the

nursery be watched.

Because Agent Andris was travelin g northbound at the time,

he needed to reverse course to return to the nursery. At

around 6:47 p.m., he pulled in to Hawks Rise Elementary

School to turn around. As he executed this maneuver, he

was unable to watch the traffic on North Meridian Road.

It would have taken Ms. Hoffman about two minutes, more or

less, to drive the distance between Forest Meadows (which

she passed at 6:45 p.m.) and the Royalty Plant Nursery,

where the suspects were waiting for her. She was on the

phone to Green during this t ime. Green and Bradshaw,

looking southward down North Meridian Road, would easily

have been able to see her coming from their vantage point at

the edge of the nursery's parking lot, where Agent Andris

had spotted them. It is my inference that Ms. Hoffman

approached the nursery at around 6:47 p.m., and that as she

did, she slowed to allow the suspects to pull out in front of

her, so that she could follow them northbound on North

Meridian Road. The two cars then proceeded to travel north

together, passing Hawks Rise Elementary at just the

moment when Agent Andris was turning around Ï and,

unfortunately, unable to see them. By the time Agent Andris

got back to the nursery, the suspects were gone. He

continued driving south, to Forest Meadows, assuming

incorr ectly that the suspects had headed that way.

The suspects were moving in the opposite direction, leading

Ms. Hoffman to Gardner Road, a dead - end street situated on

the west side of North Meridian Road, just shy of one mile

north of the Royalty Plant Nur sery. The trip from the nursery

to Gardner Road probably took about 90 seconds. I infer

that the suspects and Ms. Hoffman reached Gardner road at

around 6:48 p.m. The BMW made a left - hand turn onto

Gardner. Ms. Hoffman followed.

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 9

At 6:48:11 p.m., Pende r finally connected with Ms. Hoffman

by phone. She told him that she had followed the suspects

from the nursery to Gardner Road, that they were on the

dead - end street, and that the deal would go down there.

Pender instructed Ms. Hoffman to stop following the

suspects and turn around. Ms. Hoffman did not respond and

the call ended, having lasted 42 seconds. At 6:48:20 p.m.,

apparently while still on the phone with Ms. Hoffman, Pender

radioed the units that Ms. Hoffman was on Gardner Road,

"all the way at the end," and was "following [the]m right now."

At 6:48:32 p.m., Pender told the units: "Alright guys, we're

gonna have to run on the fly now. She pulled out and

followed them all the way down where the nursery is, and

got, followed them down the back street . . . and now she's

down at the back end of where that nursery is. You turn off

Gardner where the nursery is and go all the way to the end

of the street Ï that's where she's at."

It is most likely that Ms. Hoffman reached the end of Gardner

Road (wh ich is at least a mile or so west of North Meridian

Road) at around 6:49 p.m., shortly after terminating the

conversation with Pender. She parked and met the suspects

at the dead - end, which was remote and isolated. That this

was obviously not a residenti al neighborhood would have

been readily apparent: surrounding Gardner Road on all

sides was undeveloped or rural land. No one else was

nearby.

At 6:49:22 p.m. Pender advised: "She's probably with [the]m

right now in the car so we need to move, move." The two

arrest teams arrived on Gardner Road at 6:52:34 p.m. They

were approximately four and one - half minutes behind Ms.

Hoffman and the suspects.

Tragically, that brief window of time afforded the suspe cts

sufficient opportunity to murder Ms. Hoffman. Probably

sometime between 6:50 p.m. and 6:52 p.m., one of them

shot her to death in her own car with the handgun that she

had intended to purchase, apparently after discovering the

wire and recording devic es hidden on her person. The

killers then escaped, one driving Ms. Hoffman's Volvo, the

other driving the BMW. (There is a dirt road that provides an

exit from the dead - end of Gardner Road. Presumably the

killers used that unpaved track to make their ge taway.) By

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 10

the time the police arrived, at around 6:53 p.m., the cars, the

killers, and Ms. Hoffman were gone. At 6:54:35 p.m., Green

made a phone call to his wife. By that time, he and

Bradshaw were on the run. They would be caught the next

day, in Or lando.

LEGAL PROCEEDINGS: In December 2008, Irving Hoffman and Marjorie Weiss, as

co - personal representatives of Ms. Hoffman's estate,

brought suit against the City of Tallahassee. The action was

filed in the Circuit Court of the Second Judicial Circuit , in and

for Leon County, Florida. As mentioned earlier, the case

was headed to trial in January 2012 when, after picking a

jury, the parties reached a settlement during a mediation

conference. The City agreed to pay the Claimants $2.6

million, with $200 ,000 (the sovereign immunity limit of the

City's liability) payable immediately and $2.4 million to be

paid, if ever, after the enactment of a claim bill. The City

agreed to support the passage of a claim bill in the amount

of $2.4 million. The claimants agreed to execute a general

release and dismiss the civil suit with prejudice.

CLAIMANTS' ARGUMENTS: The City is vicariously liable for the negligent acts of the TPD

officers who participated in the May 7, 2008, operation,

including but not limited to:

Unreasonably selecting Ms. Hoffman to work as a CI,

and thereafter failing to deactivate her when her unsuitability

for such service became apparent.

Failing to make reasonable preparations for the May 7,

2008, operation.

Failing to provide reasonable supervision of the officers

before and during the operation.

Failing to reasonably implement and execute the

operation.

RESPONDENT'S POSITION: The City supports the bill. If the bill is enacted, the City,

which is self - insured, will use funds set aside for contingent

liabilities to satisfy the claim. Payment of the claim will not

adversely affect the City's ability to perform its operations.

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 11

CONCLUSIONS OF LAW: As provided in section 768.28, Florida Statutes (20 12),

sovereign immunity shields the City against tort liability in

excess of $200,000 per person and $300,000 per

occurrence.

Under the doctrine of respondeat superior, the City is

vicariously liable for the negligent acts of its agents and

employees, w hen such acts are within the course and scope

of the agency or employment. See Roessler v. Novak , 858

So. 2d 1158, 1161 (Fla. 2d DCA 2003). ). TPD's officers are

employees of the City, and each of them who participated in

the May 7, 2008, operation was acting in the course and

scope of his employment. Accordingly, the negligence of

TPD's officers in connection with the failed buy - bust

operation, if any, is attributable to the City.

The fundamental elements of an action for negligence, which

the plainti ff must establish in order to recover money

damages, are the following:

(1) The existence of a duty recognized by law

requiring the defendant to conform to a certain

standard of conduct for the protection of others

including the plaintiff;

(2) A fail ure on the part of the defendant to perform

that duty; and

(3) An injury or damage to the plaintiff proximately

caused by such failure.

Stahl v. Metro. Dade Cnty . , 438 So. 2d 14 , 17 (Fla. 3d DCA

1983)(footnote omitted).

In this case there are serious legal questions regarding

whether the City owed Ms. Hoffman a duty of care, for as a

general rule tort liability does not attach to the conduct of

public employees carrying out such essential governmental

functions as law enf orcement. In certain circumstances, the

police might be held to owe an individual a duty of care, such

as where a "special relationship" has been created with that

individual. It is not clear, however, that such a legal

relationship existed between TPD a nd Ms. Hoffman or, if it

did, that the harm which befell her was within the "zone of

risk" created by TPD's conduct. It would not be

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (20 12)

February 20, 2012

Page 12

unreasonable to conclude that no duty existed in this

instance; such a conclusion, without more, would defeat the

Claimant s' case.

There are, as well, serious legal questions regarding

whether TPD's actions are immune from suit due to

sovereign immunity, which shields governments from tort

liability for "discretionary" governmental functions, as

opposed to those which are "op erational" in nature. Here,

many (maybe most) of the actions forming the basis of the

Claimants' complaint were arguably discretionary in nature,

e.g., the decision to use Ms. Hoffman as a CI. Discretionary

decisions are not actionable where the plaintif fs seek to

impose tort liability on a governmental entity.

Assuming TPD owed Ms. Hoffman a duty of care, and that

the City is not immune from suit in this instance, serious

questions of fact exist regarding the applicable standards of

care against which th e police conduct should be measured.

What should a reasonable law enforcement officer have

done under the same or similar circumstances? This is a

question that must be answered by evidence, typically

adduced in the form of expert testimony. R easonable

people could disagree about whether TPD's officers violated

any cognizable standards of care in connection with the May

7, 2008, operation. If they did not, there could be no liability.

A thorough analysis of this case would require a careful

examination of the questions relating to duty, immunity, and

standards of care mentioned briefly above. For the sake of

brevity, however, I will focus solely on the matter of

proximate cause because that element, in my opinion, is not

met here; thus, the claim is le gally insufficient for that reason

alone.

"Proximate cause" is an involved legal concept. The

proximate cause element of a negligence action embraces

not only the "but for," causation - in - fact test, but also fairness

and policy considerations, with the qu estion of whether the

consequences of the negligent act were foreseeable in the

exercise of reasonable prudence being of great importance.

See , e.g. , Stahl , 438 So. 2d at 17 - 21.

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 13

In Stahl , the district court undertook comprehensively to

elucidate the doctrine of proximate cause. The following,

from the court's thorough opinion, is instructive:

It seems clear at the outset tha t the "proximate

cause" element of a negligence action embraces, at

the very least, a causation - in - fact test, that is, the

defendant's negligence must be a cause - in - fact of the

plaintiff's claimed injuries. In this respect, a

negligence action is no diffe rent from any other tort

action as clearly there can be no liability for any tort

unless it be shown that the defendant's act or

omission was a cause - in - fact of the plaintiff's claimed

injuries. To be sure, such a showing, without more, is

insufficient to establish the "proximate cause" element

of a negligence action, but it is plainly [an

indispensible] ingredient thereof. See e.g. , W.

Prosser, Handbook of the Law of Torts § 41 (4th ed.

1971).

The Florida courts, in accord with most other

jurisdictions, have historically followed the so - called

"but for" causation - in - fact test, that is, "to constitute

proximate cause there must be such a natural, direct,

and continuous sequence between the negligent act

[or omission] and the [plaintiff's] injury that it c an

reasonably be said that but for the [negligent] act [or

omission] the injury would not have occurred." Pope

v. Pinkerton - Hays Lumber Co. , 120 So.2d 227, 230

(Fla. 1st DCA 1960) , cert. denied , 127 So.2d 441 (Fla.

1961) , relying on Seaboard Air Line Ry. v. Mullin , 70

Fla. 450, 70 So. 467, 470 (1915) . This has proven to

be a fair, easily understood and serviceable test of

actual causation in negligence actions, which test is

currently in use as part of the Florida Standard Jury

charges on this subject in the trial of negligence

cases. Fla. Std. Jury Instr. (Civil) 5.1 a.

* * *

The "proximate cause" element of a negligence

action embraces more, however, than the aforesaid

"but for" causation - in - fact test . . . . Florida courts, in

accord with cou rts throughout the country, have for

good reason been most reluctant to attach tort liability

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 14

for results which, although caused - in - fact by the

defendant's negligent act or omission, seem to the

judicial mind highly unusual, extraordinary, bizarre, or,

sta ted differently, seem beyond the scope of any fair

assessment of the danger created by the defendant's

negligence. Plainly, the courts here have found no

proximate cause in such cases based solely on

fairness and policy considerations, rather than actual

causation grounds.

In this connection, no single test fitting all

cases has yet been adopted, see generally Pope

v. Pinkerton - Hays Lumber Co. , 120 So.2d 227

(Fla. 1st DCA 1960), cert. denied , 127 So.2d 441

(Fla. 1961), but the test most often employed by

the courts is the so - called "foreseeability" test.

Indeed, it has been said that "the key to

proximate cause is foreseeability." Vining v. Avis

Rent - A - Car Systems, Inc. , 354 So.2d 54, 56 (Fla.

1977). . . . . The following leading Florida cases,

however , appear to summarize in substance the

test as understood under our established law.

"Not every negligent act of omission or

commission gives rise to a cause of action for

injuries sustained by another. It is only when

injury to a person . . . has resulted directly and in

ordinary natural sequence from a negligent act

without the intervention of any independent

efficient cause, or is such as ordinarily and

naturally should have been regarded as a

probable , not a mere possible, result of the

negligent act, that such injured person is entitled

to recover damages as compensation for his loss.

Conversely, when the loss is not a direct result of

the negligent act complained of, or does not

follow in natural or dinary sequence from suc h act

but is merely a possible, as distinguished from a

natural and probable, result of the negligence,

recovery will not be allowed. Seaboard Air Line

Ry. Co. v. Mullin , 70 Fla. 450, 70 So. 467,

L.R.A.1916D, 982, Ann.Cas.1918A, 57 6. 'Natural

and probable' consequences are those which a

person by prudent human foresight can be

expected to anticipate as likely to result from an

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 15

act, because they happen so frequently from the

commission of such act that in the field of human

experien ce they may be expected to happen

again. 'Possible' consequences are those which

happen so infrequently from the commission of a

particular act, that in the field of human

experience they are not expected as likely to

happen again from the commission of t he same

act. See 38 Am.Jur. 712, Negligence, Sec. 61."

Cone v. Inter County Telephone & Telegraph Co. ,

40 So.2d 148, 149 (Fla. 1949) .

"The Florida courts, as well as a great

majority of other jurisdictions, have incorporated

into their definitions of proximate cause certain

modifying factors or tests which have been

formulated to help determine whether proximate

cause or legal cause is present in a particular

case. The principal tests are the following: (a)

'Foreseeability', by which, even though the

defendant has been negligent there can be no

recovery for an injury that was not a reasonably

foreseeable consequence of his negligence,

although . . . the particular injury or the manner in

which the hazard operated need not have been

clearly foreseeable . . . ."

Pope v. Pinkerton - Hays Lumber Co. , 120 So.2d

227, 229 (Fla. 1st DCA 1960) , cert. denied , 127

So.2d 441 (Fla. 1961) (footnotes omitted).

Stahl , 438 So. 2d at 17 - 21 (footnotes omitted).

Due to the element of proximate cause, a negligent party is

not liable for someone else's injury if a separate force or

action was "the active and efficient intervening cause, the

sole proximate cause or an independent cause." Dep't of

Transp. v. Anglin , 502 So. 2d 896, 898 (Fla. 1987). Such a

supervening act of negligence so completely disrupts the

chain of events set in train by the original tortfeasor's

conduct that any negligence which occurred before the

supervening act is considered too remote to be the

proximate cause of any injury resulting from the super vening

act. On the other hand, if the intervening cause were

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Febru ary 20, 2012

Page 16

foreseeable, which is ordinarily a question of fact for the trier

to decide, then the original negligent party may be held

liable. Id. In circumstances involving a foreseeable

intervening cause, the original tortfeasor sometimes is said

to have "set in motion" the "chain of events" that resulted in

the plaintiff's injury. See Gibson v . Avis Rent - a - Car System,

Inc. , 386 So. 2d 520, 522 (Fla. 1980). In contrast, where the

intervening cause was not the foreseeable consequence of

the original negligent party's conduct, the latter, who is not

liable for the resulting injury to the plaintiff (because his

negligence was not the proximate caus e thereof), may be

found to have "provided the occasion" for the later

negligence which harmed the plaintiff Ï but not to have set in

motion the injurious chain of events. Anglin , 502 So. 2d at

899.

Concerning the question of foreseeability as it arises in the

context of an "intervening cause" case, the Florida Supreme

Court has explained:

Another way of stating the question whether the

intervening cause was foreseeable is to ask whether

the harm that occurred was within the scope of the

danger attributable to the defendant's negligent

conduct. A person who creates a dangerous situation

may be deemed negligent because he violates a duty

of care. The dangerous situation so created may

result in a particular type of harm. The question

whether th e harm that occurs was within the scope of

the risk created by the defendant's conduct may be

answered in a number of ways.

First, the legislature may specify the type of harm

for which a tortfeasor is liable. See Vining v. Avis

Rent - A - Car, above ; Concord Florida, Inc. v. Lewin ,

341 So.2d 242 (Fla. 3d DCA 1976) cert. denied 348

So.2d 946 (Fla. 1977) . Second, it may be shown that

the particular defendant had actual knowledge that

the same type of harm has resulted in the past from

the same type of negligent conduct. See Homan v.

County of Dade , 248 So.2d 235 (Fla. 3d DCA 1971) .

Finally, there is the type of harm that has so

frequently resulted from the same type of negligence

that "'in the field of human experience' the same type

of result may be expected again." Pinkerton - Hays

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Page 17

Lumber Co. v. Pope , 127 So.2d 441, 443 ( emphasis

in original).

Gibson , 386 So. 2d at 522 - 23 (citations omitted).

In this case, the question arises whether Ms. Hoffman's

unilateral decision to abandon the planned buy - bust

operation Ï for which some twenty police officers had staged

at Forest Meadows Ï and embark on the far more dangerous

mission of following the suspects to a secluded and remote

location (outside City limits) to meet them alone, with no

police protection, was a n unforeseeable intervening cause

which so profoundly and unexpectedly changed the course

of events as to sever any reasonable causal connection

between TPD's alleged negligence and the murder. The

undersigned concludes that Ms. Hoffman's actions

constitu ted an unforeseeable, supervening cause which

relieved the City of liability for her death, for the reasons that

follow.

But first, consider this hypothetical situation, as an aid to

conceptualizing the distinction between causation - in - fact

(which is nece ssary but not sufficient to establish liability for

an injurious result) and proximate cause. Suppose that at

6:46 p.m. a tree had fallen on Ms. Hoffman's car and killed

her while she was en route to the nursery. (The odds of

such an occurrence are infin itesimally small, to be sure, yet

freakish accidents of the sort do happen in human

experience.) By 6:46 p.m. on May 8, 2008, the police had

committed all or most of the negligent acts on which the

present case is based, and the potentially dangerous buy -

bust operation was well underway. Just as in the actual

case, TPD's actions (whether negligent or not) were a

cause - in - fact of the injury inasmuch as but for proceeding

with the operation and negligently allowing (as the Claimants

would have it) Ms. Hoffm an to overshoot the park, she would

not have been struck by the tree. (Indeed, just as in the

actual case, Ms. Hoffman's own actions, e.g., her decision to

bypass the park and head to the nursery, were a cause - in -

fact of the injury.) In the hypothetical scenario, however, no

one blames TPD for the death, for the good reason that the

fatal accident was not foreseeable and, in any event, was

outside the zone of danger created by police negligence, if

any. The falling tree was a supervening cause of the dea th,

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 18

relieving TPD of liability for any prior negligence, which was

not the proximate cause of the injury.

What actually happened was, like the fictional falling tree,

not reasonably foreseeable either. To begin, although Ms.

Hoffman has been described by some as immature,

inexperienced, unreliable, and "demonstrably incapable" of

conducting an undercover drug purchase, the evidence

presented paints a different picture. Ms. Hoffman was a

college graduate (FSU '07) whose intelligence seems clearly

to hav e been above average. At the time of her death she

was, in effect, an entrepreneur running her own small

business, albeit an illegal one. Ms. Hoffman was apparently

worldly, streetwise, and clever. Certainly the police thought

so, and the evidence does not show otherwise. She was

fully capable of understanding and adhering to the major

elements of the operation, the most important of which Ï and

probably the easiest to comply with Ï was that she would

meet the suspects inside Forest Meadows Park.

On May 7 , 2008, at around 6:45 p.m., Ms. Hoffman decided

not to turn in to Forest Meadows Park at the flashing yellow

light as instructed and as the police reasonably expected,

but to proceed instead to the Royalty Plant Nursery to

rendezvous with the suspects. T his was not an accident on

her part; it was a deliberate, willful decision, for which she

undoubtedly had her reasons. When she made this

decision, she was not in imminent danger, nor was she

acting under duress or coercion. The bad guys were not in

her car, and as long as she remained at the wheel and on

the move, she was safe from them.

As Ms. Hoffman drove toward the nursery, she had time to

reflect on what she was doing, probably about two minutes.

Her unilateral decision to improvise, to abandon t he plan Ï

which she did not communicate to the police Ï was not a

split - second, impulsive choice. Her rationale for acting as

she did is unknowable, but her actions were undeniably free,

voluntary, and purposeful. And, again, at any point along the

way to th e nursery, Ms. Hoffman could have reconsidered

and returned to the relative safety of Forest Meadows Park.

After reaching the nursery, Ms. Hoffman still had time to

change her mind and go back to the park. She did not get

into the suspects' car at that point, nor did she let one of

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 19

them get into her car. Therefore, a t 6:47 p.m., when she

began following the two men toward Gardner Road, she was

not yet in immediate danger. When Ms. Hoffman turned her

vehicle onto Gardner Road and began traveling west down

that desolate and narrow street, she would have known that

the police were not nearby because she could have seen

that there was nowhere for them to be, except on the road

itself, and they obviously were not following her. At any

point until reaching the end of Gardner Road, she could

have stopped and sped away, yet she chose not to do so.

At 6:48 p.m. Pender pleaded with Ms. Hoffman to turn

around. She went ahead anyway.

There is no question that being a CI in an undercover buy -

bust operation is da ngerous. As planned, the operation in

Forest Meadows would have entailed a degree of risk

notwithstanding that the venue Ï a public place with plenty of

people around Ï was crawling with police ready to pounce at

the first sign of trouble. Meeting the suspec ts alone,

however, as Ms. Hoffman did without warning, at the end of

a rural road, in the middle of nowhere, surrounded by

undeveloped and unpopulated land with no police nearby,

created an exponentially more dangerous situation Ï one

that was beyond the sco pe of danger attributable to TPD's

actions.

To be very clear, I realize that the police could have

foreseen the possibility that the suspects might try to rob or

harm Ms. Hoffman; in fact, they were prepared for this. Of

course they knew that something co uld go wrong which

might put their CI at risk: a miscue on her part, the suspects'

evil plans, or some combination thereof could foreseeably

produce a high - risk situation. That is why the transaction

was supposed to take place in the park under the watch ful

eyes of twenty - some police officers on high alert. But just

because the planned operation posed foreseeable risks

does not mean that the police should reasonably have

foreseen every conceivable risk, no matter how remote or

unlikely. In my judgment, TPD could not reasonably have

anticipated that Ms. Hoffman would purposefully slip off the

carefully set stage and freelance an improvisational,

extraordinarily dangerous operation at a remote location with

no one watching.

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 20

Clearly, Ms. Hoffman's conduct Ï at least as much as that of

the police Ï was a cause - in - fact of the tragic outcome, in that

but for her deliberate decision to meet the suspects alone in

an isolated location, which she acted upon despite having

had ample opportunity to reflect, reco nsider, and retreat, Ms.

Hoffman likely would not have been murdered. The police

could not reasonably have foreseen that Ms. Hoffman, acting

on her own, would take such an inordinate risk. Indeed,

even with the benefit of hindsight, it is practically ine xplicable

that she voluntarily placed herself in extreme peril the way

she did. Why she didn't flee from a situation that must have

seemed increasingly ominous as she approached that

deserted dead - end on Gardner Road? This is a mystery.

No one could rea sonably have anticipated such a strange,

sad turn of events.

Ms. Hoffman, it must be stressed , is not to blame for what

happened in the sense of legal liability or moral culpability.

Green and Bradshaw are exclusively responsible for her

death. Their des picable act of murdering Ms. Hoffman was

a supervening cause vis - à - vis both Ms. Hoffman's conduct

and TPD's. Thus, Ms. Hoffman's actions, no less than

TPD's, all of which comprised the sequence of events

leading to disaster, nevertheless did not proximate ly cause

the crime. But from TPD's standpoint, Ms. Hoffman's actions

were an independent, efficient, unforeseeable, and ultimately

supervening caus e, which decisively changed the

reasonably expected outcome . In sum, TPD might have

been negligent, but if so the particular horror that transpired

was far beyond the scope of danger fairly attributable to

such negligence. Consequently, the City is not legally liable

for Ms. Hoffman's death.

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

attorney may charge, demand, receive, or collect, for

services rendered, fees in excess of 25 percent of any

judgment or settlement. " The Claimants' attorneys,

therefore, would receive $600,000 from the proceeds of this

claim bill, if enacted.

SPECIAL MASTERÓS FINAL REPORT Î SB 44 (2012)

February 20, 2012

Page 21

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

Bill 44 (2012) be reported UNFAVORABLY.

Respectfully submitted,

John G. Van Laningham

Senate Special Master

cc: Senator Mike Fasano

Debbie Brown, Secretary of the Senate

Counsel of Record