11-004102CB In Re: Senate Bill 50 (Monica Cantillo Acosta And Luis Alberto Cantillo Acosta) 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

402 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

12/2/11 SM Unfavorable

December 2, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re: SB 50 (2012) Î Senator Ellyn Setnor Bogdanoff

Relief of Monica Cantillo Acosta and Luis Alberto Acosta

SPECIAL MASTERÓS FINAL REPORT

THIS UNOPPOSED, NEGL IGENCE - BASED EQUITABLE

CLAIM FOR $940,000, IN LOCAL FUNDS, AGAI NST

MIAMI - DADE COUNTY FOR NON - ECONOMIC DAMAGES

IS BROUGHT BY THE T WO CHILDREN OF A

PASSENGER WHO FELL IN A BUS AN D SUFFERED A

FATAL HEAD INJURY AF TER THE DRIVER STOPP ED

SUDDENLY TO AVOID A COLLISION.

FINDINGS OF FACT: On November 12, 2004, at 2:28 p.m., Nhora Acosta, 53, and

her friend Zunilda Vargas boarded a bus operated by the

Miami - Dade Tran sit Authority (MTA). The bus was

eastbound on SW 8th Street in Miami. Ms. Acosta was

returning to work after having lunched with Ms. Vargas.

Neither woman was elderly, handicapped, infirm, or

burdened with packages; both were able - bodied and

apparently healthy.

The bus was crowded, and there were no seats for the

women near the front. They began walking down the center

aisle to the rear of the bus, where seats were available in an

elevated seating area. To access this raised seating

platform, a passen ger must climb two steps, which are

incorporated into the center aisle. As Ms. Acosta and Ms.

Vargas headed to the back of the bus, the driver, Fernando

SPECIAL MASTERÓS FINAL REPORT Î SB 50 (2012)

December 2, 2011

Page 2

Arrieta, pulled away from the bus stop and proceeded to

drive eastward on SW 8th Street, in the right lane.

About 11 seconds after the bus began moving, an SUV

traveling in the left eastbound lane began pulling into the

right lane, in front of the bus. This maneuver took nearly 4

seconds to complete. Immediately upon changing lanes,

however, the SUV began breaking. Mr. Arrieta

simultaneously stepped on the bus's breaks, to avoid a rear -

end collision with the SUV.

The SUV needed to stop suddenly because a jaywalker was

standing in the middle of the road, in between the two

eastbound lanes. Two vehicles in the left eastbound lane

had come to a complete stop. (The SUV had changed

lanes, moving left - to - right in front of the bus, to pass these

vehicles on the right.) It is reasonable to infer, and the

undersigned finds, that the jaywalker had not anticipated that

the SUV would cut in front of the bus when he began to

cross the eastbound lanes on SW 8th Street. When t he

SUV suddenly appeared in the right lane, ahead of, and

moving faster than, the bus, the jaywalker froze, calculating

that he might not beat the SUV if it failed to slow down. Once

the SUV began to break, however, the jaywalker dashed in

front of it, saf ely reaching the sidewalk 2 seconds later. The

SUV continued forward, and the two vehicles in the left lane,

which had stopped, now took off. The bus came to a

complete stop in the right lane, at the curb. Twenty seconds

had elapsed from the time the bu s pulled away after picking

up Ms. Acosta and Ms. Vargas.

Inside the bus, a tragic accident had occurred. At about the

moment the SUV beg a n to change lanes, Ms. Acosta

stepped up onto the rear seating platform. Ms. Vargas, who

was right behind her, did the same about 2 seconds later.

When the bus stopped to avoid running into the SUV, both

Ms. Acosta and Ms. Vargas lost balance. Ms. Acosta tripped

over Ms. Vargas's leg and f ell off the elevated platform,

striking her head on the lower center aisle. T he injury

proved to be fatal. Ms. Acosta died the next day in the

hospital, having never regained consciousness.

The foregoing findings are based not only on the testimony

presented, but also on the undersigned's independent review

of the videos that the bus's onboard cameras recorded.

SPECIAL MASTERÓS FINAL REPORT Î SB 50 (2012)

December 2, 2011

Page 3

Based on a careful review of the videos, the following

chronology of the material events has been created:

Hour Minute Second(s) Event

2PM 28 44 Front doors are open

46 Acosta steps onto bus

47 Vargas boards

48 - 53 Acosta pays fare; begins

walking to back of crowded

bus

53 - 56 Vargas pays fare; begins

walking to back of crowded

bus

57 Bus starts moving forward

57 - 59 Acosta and Vargas walking

to back of moving bus

29 00 - 06 Acosta and Vargas still

walking to back of moving

bus

06 - 08 Acosta steps up onto rear

seating platform; Vargas

approaching her from

behind

08 - 12 SUV, moving left to right,

pulls into the right

eastbound lane, in front of

bus

09 - 10 Vargas steps up onto rear

seating platform, behind

Acosta

09 - 16 Two vehicles have stopped

moving in the left eastbound

lane, one behind the other

11 - 13 Drives applies the breaks

12 - 13 Pedestrian stands between

the left and right eastbound

lanes; two vehicles are

parked in the left lane,

having stopped for the

pedestrian

12 SUV is breaking

13 - 14 Vargas loses balance,

begins to fall

14 - 15 Acosta begins to trip on

SPECIAL MASTERÓS FINAL REPORT Î SB 50 (2012)

December 2, 2011

Page 4

Vargas's outstretched leg,

falls

14 - 16 Pedestrian dashes, left to

right, toward sidewalk,

directly in front of the SUV in

the right eastbound lane

16 - 18 Acosta is down; Vargas

recovers balance, stands

without having fallen

17 Bus is at complete stop;

SUV proceeds eastbound

17 - 21 Two vehicles in left lane

drive off, eastbound

29 - 33 Front doors open

36 Driver gets up from seat

40 Driver begins walking back

At the conclusion of the trial in the civil action that Ms.

Acosta's daughter Monica and son Luis brought against

Miami - Dade County, which will be discussed below, the jury

returned a verdict i n favor of the plaintiffs, awarding each of

them $3 million for non - economic damages, i.e., "pain and

suffering." No award for economic damages, e.g., lost

earnings, was made because Ms. Acosta, a Venezuelan

citizen, was in the U.S. illegally, having over stayed her

tourist visa, and hence her children could not prove earnings

from lawful employment.

The jury in the civil trial was asked to compare the

negligence, if any, of Ms. Acosta; the unnamed pedestrian;

the unnamed driver of the SUV; and Mr. Arriet a, and to

apportion the fault between them by percentages. The jury

determined that Mr. Arrieta's negligence was the sole cause

of Ms. Acosta's fatal injury.

The undersigned considers the jury's apportionment of 100

percent of the fault to the bus driver to be inexplicable

(except as the product of sympathy and emotion) and,

ultimately, indefensible. Clearly, the unnamed pedestrian,

who decided to cross a busy road outside of a marked

crosswalk, acted recklessly and endangered himself and

others. This jaywalker therefore owned the lion's share of

the blame for this unfortunate accident, and the undersigned

charges him with 90 percent of the fault. The unnamed

driver of the SUV was partially responsible for the accident;

SPECIAL MASTERÓS FINAL REPORT Î SB 50 (2012)

December 2, 2 011

Page 5

had he remained in the left lane and slowed to a stop, as the

two vehicles in front of him did, it is likely that this accident

would not have occurred. The undersigned places 10

percent of th e blame on this driver. Mr. Arrieta's conduct in

bringing the bus to a controlled, nonviolent stop to avoid

rear - ending the SUV, which had stopped suddenly to avoid

hitting the jaywalker standing the middle of the busy road,

was reasonable under the circu mstances.

The claimants argue that Mr. Arrieta was negligent in failing

to wait for Ms. Acosta and her friend to sit down or grab a

handrail. As will be discussed below, the standard of care

does not generally require a bus driver to wait for a boardi ng

passenger to sit down before pulling away, unless the

passenger is elderly, infirm, disabled, etc., or the driver

knows or reasonably should know of some reason (besides

ordinary traffic conditions) that might cause him to make a

sudden stop. Based on the evidence presented in this case,

the undersigned finds that (a) both Ms. Acosta Ms. Vargas

were able - bodied and apparently healthy; and (b) Mr. Arrieta

had no reason to anticipate that a jaywalker soon would

cross his bus's path and disrupt traffic. T hus, it is

determined that Mr. Arrieta did not breach the duty of care

by driving the bus while Ms. Acosta and Ms. Vargas were

still in the process of finding seats.

Even if Mr. Arrieta were negligent in failing to wait for Ms.

Acosta to take her seat bef ore driving off, however, which

the undersigned (based on the law and the evidence

presented here) does not believe was the case, he was

certainly not more responsible for the accident than the

unnamed driver of the SUV. At most, therefore, Mr. Arrieta

wa s 5 percent at fault, the SUV driver 5 percent responsible,

and the jaywalker 90 percent to blame.

LEGAL PROCEEDINGS: In 2005, the Monica and Luis Acosta, Ms. Acosta's children,

brought a wrongful death action against Miami - Dade County

based on the alleg ed negligence of the MTA employee, Mr.

Arrieta. The action was filed in the circuit court in Miami -

Dade County.

The case was tried before a jury in or around November

2007. The jury returned a verdict awarding Monica and Luis

$3 million each for pain an d suffering. As mentioned above,

the jury apportioned 100 percent the fault for Ms. Acosta's

SPECIAL MASTERÓS FINAL REPORT Î SB 50 (2012)

December 2, 2011

Page 6

death to the bus driver, finding specifically that neither the

jaywalker, the SUV driver, nor Ms. Acosta herself were in

any way negligent in causing Ms. Acosta's death. On

November 8, 2007, trial court entered a judgment against

Miami - Dade County in accordance with the jury's verdict.

The county appealed the judgment. In April 2010, while the

appeal was pending before the Third District Court, the

parties agr eed to a settlement of the case, under which the

county, in exchange for a release of liability, would: (a) pay

$200,000 to the claimants (which it since has done); (b)

dismiss the appeal; and (c) support a claim bill in the amount

of $940,000.

Upon the county's payment of $200,000, the claimants

received net proceeds of $98,237.30, after deductions for

attorneys' fees ($50,000) and costs ($51,762.70).

CLAIMANTS' ARGUMENTS: Miami - Dade County is vicariously liable for the negligence of

its employee, Mr. Arrieta, who breached the duty of a

common carrier to exercise the highest degree of care

consistent with the practical operation of the bus by:

Failing to wait for Ms. Acosta to take a seat before

pulling away from the bus stop;

Failing to pay attentio n to his surroundings while

driving; and

Slamming the br akes and making a sudden, violent

stop.

RESPONDENT'S POSITION: The county supports a claim bill in the amount of $940,000.

If the claim bill were enacted, the county would satisfy the

award using the operating funds of the MTA.

CONCLUSIONS OF LAW: As provided in section 768.28, Florida Statutes (2010),

sovereign immunity shields Miami - Dade County against tort

liability in excess of $200,000 per occurrence.

The operator of a bus system is vicari ously liable for any

negligent act committed by a driver whom it employs,

provided the act is with the scope of the driver's

employment. See , e.g. , Metro. Dade Cnty. v. Asusta , 359

So. 2d 58, 59 (Fla. 3d DCA 1978); Miami Transit Co. v. Ford ,

SPECIAL MASTERÓS FINAL REPORT Î SB 50 (2012)

December 2, 2011

Page 7

159 So. 2d 26 1 (Fla. 3d DCA 1964). Mr. Arrieta was the

county's employee and was clearly acting within the scope of

his employment at the time of the accident in question.

Accordingly, the negligence of Mr. Arrieta, if any, is

attributable to the county.

As a genera l rule, the duty of a common carrier is "to

exercise the highest degree of care consistent with the

practical operation of the bus." Jacksonville Coach Co. v.

Rivers , 144 So. 2d 308, 310 (Fla. 1962). That the bus

stopped suddenly, however, is insufficien t, without more, to

establish negligence on the part of the driver, as the Florida

Supreme Court announced in Rivers :

Ruling out stops of extraordinary violence, not

incidental to ordinary travel, as inapplicable to

the stop which occurred here, the sudde n

stopping of the bus was not a basis for a

finding that the bus was negligently operated,

in the absence of other evidence , relating to

the stop, of some act of commission or

omission by the driver which together with the

'sudden' stop would suffice to sh ow a violation

of the carrier's duty . This is so because a

sudden or abrupt stop, which could be the

result of negligent operation, could as well

result from conditions and circumstances

making it entirely proper and free of any

negligence.

Id. (emphasis added; reinstating directed verdict in favor of

defense; quoting Blackman v. Miami Transit Co. , 125 So. 2d

128, 130 (Fla. 3d DCA 1960)).

Here, the evidence establishes that the stop in question,

while sudden and unexpected, was not extraordinarily violen t

and was incidental to ordinary travel, inasmuch as making a

sudden stop in traffic, unexpectedly, is commonly

understood to be one of the recurring inconveniences (and

risks) of driving a motor vehicle. The evidence, moreover,

does not establish that th e driver failed to pay attention to his

surroundings; rather, as the videos show, Mr. Arrieta reacted

prudently and reasonably to an unexpected situation, namely

the slowing of the SUV (which had just pulled ahead of the

SPECIAL MASTERÓS FINAL REPORT Î SB 50 (2012)

December 2, 2011

Page 8

bus) to avoid hitting a jaywalker who was standing in the

middle of the road, in traffic.

The question whether the driver should have waited for Ms.

Acosta to take a seat before putting the bus in motion is

somewhat closer. Florida law, however, does not generally

require that a driver wait for passengers to be seated before

proceeding, althou gh such a duty might arise where the

driver prevents the passenger from taking a seat, Ginn v.

Broward Cnty. Transit , 396 So. 2d 804, 806 (Fla. 4th DCA

1981), or reasonably could have anticipated the need to

make a sudden stop, Metro. Dade Cnty. V. Asusta , 359 So.

2d 58, 60 (Fla. 3d DCA 1978). Indeed, courts have entered

judgments as a matter of law against plaintiffs who have

fallen on moving buses while on their way to a seat. See ,

e.g. , Peterson v. Cent. Fla. Reg'l Transp. , 769 So. 2d 418,

421 (Fla. 5th DCA 2000)(affirming directed verdict in favor of

bus operator, where plaintiff, who was carrying a large, rain -

soaked bag, was injured in fall on bus while walking down a

wet aisle to take a seat in the back); Artigas v. All state Ins.

Co. , 541 So. 2d 739, 740(Fla. 3d DCA 1989)(affirming

summary judgment in favor of bus operator because,

although plaintiff had fallen after boarding bus while on her

way to seat, standard of care was not violated); Miami

Transit Co. v. Ford , 159 So. 2d 261 (Fla. 3d DCA 1964)(bus

operator entitled to JNOV where plaintiff, who had been

proceeding to a seat, fell when bus made a sudden, but

nonviolent, stop).

Claimants argue that the MTA's Procedures Manual required

the driver to wait for Ms. Aco sta to take a seat before starting

to move, but this is not accurate. The manual requires the

driver to wait only when the passenger is "an elderly person,

customer with a disability, a person holding a child, or a

person with arms full of packages." Ms. Acosta was none of

these. Otherwise, the driver is instructed to "be careful not

to make a sudden start or stop" when passengers are

standing in the aisle or walking to a seat. Here, the evidence

fails to prove that the driver was not being careful; rat her, Mr.

Arrieta was required to stop suddenly because of an

unexpected situation over which he had no control and could

not reasonably have anticipated. In any event, the

Procedures Manual does not fix the standard of care. See

Artigas , 541 So. 2d at 74 0 n.1.

SPECIAL MASTERÓS FINAL REPORT Î SB 50 (2012)

December 2, 2011

Page 9

Based on the foregoing legal principles, as applied to the

evidence presented in the case, the undersigned makes the

ultimate determination that the driver was not negligent, in

that he did not breach the standard of care owed to a

passenger when h e stopped his bus to avoid rear - ending an

SUV, which had slowed suddenly to avoid striking a

jaywalker who was standing in the middle of traffic.

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

attorney may charge, demand, receiv e, or collect, for

services rendered, fees in excess of 25 percent of any

judgment or settlement. " Claimants' attorney, Judd G.

Rosen, Esquire, has submitted an affidavit attesting that all

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

accor dance with the limitations specified in the claim bill.

SPECIAL ISSUES: If enacted in its current form, the claim bill would direct that

the entire judgment amount of $6 million be paid to Ms.

Acosta's children. Thus, the bill needs to be amended to

con form to the parties' settlement agreement, pursuant to

which claimants have agreed to accept the smaller sum of

$940,000.

At the time of her death in November 2004, Ms. Acosta was

a citizen of Venezuela. She had come into the U.S. in July

2003 on a Non - I mmigrant B2 (Visitor for Pleasure) Visa,

which expired on January 22, 2004.

Monica and Luis Acosta are citizens of Venezuela. Monica

Cantillo Acosta, who was in the U.S. on a Non - Immigrant B2

(Visitor for Pleasure) Visa for some period of time, had

returned to Venezuela to attend school before her mother's

death, apparently witho ut having overstayed her visa. Luis

Acosta, who was a teenager at the time of his mother's

death, was in the U.S. in November 2004 on a Non -

Immigrant B2 (Visitor for Pleasure) Visa, which had expired

on June 18, 2004.

GENERAL CONCLUSIONS: This sad cas e arises out of a freak accident, which tragically

cost Ms. Acosta her life. Clearly her children have suffered a

grievous loss Ï one for which, in a perfect world, they would

be richly compensated. The problem here is that the party

who is mostly to blame for Ms. Acosta's death, the negligent

jaywalker, was not identified. Nor was the driver of the SUV

identified; yet that person , too, rightfully bears a smaller, but

SPECIAL MASTERÓS FINAL REPORT Î SB 50 (2012)

December 2, 2011

Page 10

nontrivial, share of the fault. Although the bus driver's (and

through him the county's) fair share of the blame falls in the

range from 0 percent to 5 percent (and at the bottom end of

the range, in the undersigned's estimation), the jury decided

to make the county pay the entire loss, assigning 100

percent of the fault to the bus driver. T his was unfair and

unsupportable based on the facts and law. The county's

financial responsibility to the plaintiffs should not exceed

$300,000 (5 percent of $6 million). Having paid $200,000,

the county, at a minimum, already has satisfied two - thirds of

its maximum liability Ï and probably has overpaid.

That said, the county did agree to support a claim bill in the

amount of $940,000. This, in itself, is a compelling reason to

support the bill, and should be given great weight.

Nevertheless, the undersi gned concludes that, on balance,

the present settlement, if consummated via approval of this

claim bill, would not be a responsible use of taxpayer money.

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

Bill 50 (2012) be reporte d UNFAVORABLY.

Respectfully submitted,

John G. Van Laningham

Senate Special Master

cc: Senator Ellyn Setnor Bogdanoff

Debbie Brown, Interim Secretary of the Senate

Counsel of Record