Miami Beach Cop Crashes ATV: Miami Police Causing Personal Injuries - What is Sovereign Immunity and When Can the Government Be Sued for Injury or Death?

Over this past Fourth of July weekend, a veteran Miami Beach cop named Derick Kuilan who was on the job (on duty) left a local hotel bar with a young woman, giving her a ride on the beach on his ATV.

They sped along, this cop and his lady friend, and they were going fast. It was dark. The ATV's lights were off.

The ATV was going so fast, in fact, that Luis Almonte and his girlfriend Kitzie Nicantor couldn't get out of the ATV's way in time, and both were run over by the police officer (again, who was ON DUTY) and seriously injured. The cop's friend, Adelee Sharie Martin, was reported thrown from the ATV but not hurt very badly.

If This Were Not a Cop....

If this were not a police officer, then this would be a straight-up personal injury law example: an ATV crash where the duty of the driver to be safe as he operated his all-terrain vehicle would be examined, to see if the driver breached that duty and caused the injuries sustained by the victim. If negligence was found, then the driver (and his insurance coverage) would have to cover the damages sustained by those who had been hurt.

When a Government Employee Is Involved in a Crash, It's a Different Situation

Things are different in a personal injury situation where a government employee is involved as the person operating the vehicle that crashes. Whether it is a car, an ATV, a motorcycle, or an SUV, if that government vehicle is involved then something called "sovereign immunity" may apply.

Or not. It's been reported in the Miami Beach ATV crash that officer Kuilan was seen fleeing the scene of the accident after it happened -- a key fact -- and that tests of his BAC levels (blood alcohol content) are being done by Internal Affairs, as he is on administrative leave from his job.

Witnesses say that the accident happened at around five o'clock on the morning of Sunday, July 3, 2011, and that after the crash, Kuilan asked onlookers to help him out and not say anything before he ran away.

What is Sovereign Immunity?

The idea of "sovereign immunity" has been a legal concept since ancient times, where it was more commonly known as "the king can do no wrong." Today, it is a legal concept, or "doctrine," that bars anyone from suing a governmental agency (like a police department) unless there are laws on the books that allow that lawsuit to be filed.

In other words, if the State of Florida does not have a law that lets an injured person sue the Miami Beach Police Department -- or any other state agency, even the Governor himself -- then that lawsuit cannot be filed.

Why not? There are several reasons for sovereign immunity, including protecting taxpayer money. If the accident happened in the course of a proper governmental action, then in the balance, it may be seen as better to protect the taxpayers as a whole than allow lawsuits for damages against a state entity.

For more details, check out this summary of sovereign immunity prepared by the Florida Senate.

Florida Statute 768.28 - Limited Ability to Sue Florida Government for Personal Injury

The Florida Legislature has passed a law that allows injured victims in Florida to sue for damages, waiving sovereign immunity in some situations. Of course, this law limits who can be sued, how much attorneys' fees can be awarded, etc. - but Florida does have laws on the books waiving sovereign immunity in some situations.

For the full text of Florida Statute 768.28, go here.

One of the Keys to Sovereign Immunity is Scope of Employment

One of the first questions to ask when a government agency, like a police department, is involved in a personal injury claim, is whether or not sovereign immunity bars the suit, and one of the key issues in that analysis is this: was the government employee acting in his scope of employment at the time of the accident?

Was a Miami Beach police officer in the scope of his employment, allegedly drinking at a hotel bar on a holiday weekend before taking a female passenger on a fast ATV ride in the dark, without headlights at five in the morning?

By Bryant Esquenazi on July 5, 2011 1:16 PM

Two Horrible Motorcycle Accidents in Miami Area Remind South Florida of the Dangers in Riding Motorcycles Here

Motorcycles are fun and freeing - and the weather here in South Florida invites all sorts of people to drive our roadways on their motorcycle - be it a rice chopper, a cruiser, whatever.

It's adventurous. It's romantic. It's downright American.

However, in two separate news stories this week, both involving motorcycle accidents, people were seriously injured and killed while peacefully riding along on their bikes.

These tragedies remind all of us how serious these types of crashes can be. Even when -- especially when -- the biker is doing absolutely nothing wrong.

1. Pembroke Park, biker hit from behind by SUV - serious injuries

In Hollywood, Florida, bike enthusiast Ytzhak Hartzy was hit from behind on I95 near Pembroke Road (in the park) by a hit-and-run driver driving a black Kia SUV early Sunday morning. Last we knew he remained in critical condition at Memorial Regional Hospital.

The Florida Highway Patrol Sergeant is investigating - but they know the driver's identity (and they've arrested him) thanks to witness John Roxey, who saw Hartzy get hit, fly into the air, and roll down the roadway several hundred feet. Roxey and a pal followed the hit-and-run driver and held him until the cops arrived.

(Now, there's a great witness for trial, right?)

2. Lakeland, two died as motorcycle tries to avoid car pulling out of driveway

In Lakeland, Michael Mitts and his passenger, Laura Nalley, were riding a motorcycle down North Chestnut Road on Monday evening (about 7:30 p.m. according to the Florida Highway Patrol), when a driver started backing out of his driveway oblivious to the bike coming down the road.

Mitts hit the brakes. Both Mitts and Nalley were thrown from the bike; the bike crashed into the car. Both were pronounced dead at the crash scene.

Florida Law and Motorcycle Crashes - Personal Injuries and Wrongful Death in Motorcycle Accidents

In Florida, the law requires that anyone driving a motorcycle on Florida roads know what they are doing: you must have special knowledge and the state gives you a special license to drive a two-wheel motor vehicle. Florida also requires helmets.

However, even the most experienced rider - wearing leathers, obeying the law with that helmet - is vulnerable to the cage drivers out there.

Like these two examples. In both these motorcycle crashes, there doesn't appear to be any question that the motorcycle drivers were not at fault here.

Whether or not criminal cases will proceed against the car (or SUV) drivers in these terrible wrecks, the truth is that Florida personal injury law provides some level of justice in the form of a civil lawsuit.

Under the law of negligence here in Florida, damages in the form of wrongful death, pain and suffering, lost wages, medical care, etc. can be obtained through a personal injury lawsuit.

What's involved in a Florida motorcycle accident negligence lawsuit?

Under Florida law, when someone causes personal injury to another due to their negligent acts, then they are legally responsible for all the harm that results from what they've done.

The personal injury lawsuit must prove that:

1. There was a duty of care owed to the person injured (the one on the motorcycle) in this circumstance -- which is clear from the laws covering driving on Florida's roads;
2. For some reason (driving drunk? distracted driving?), the defendant failed to meet his or her duty of care to the guy on the bike; and
3. As a result, the plaintiff (e.g., the motorcycle driver or passenger) was injured or killed.

By Bryant Esquenazi on May 17, 2011 1:37 PM

National Margarita Day in Miami: Free Drinks, Bar Specials - and Lawsuits Waiting to Happen.

National Margarita Day is today, Miami -- February 22, 2011 - though who knows when it will hit next year, because part of the fun of National Margarita Day is it just pops up on a random winter day each year. And, this year, it's popped up today.

The Broward Palm Beach New Times Blog reports that Rocco's Tacos is offering free margaritas in celebration. Well, one free margarita per person, but who would complain?

The Miami New Times gives details on what Jimmy Buffett is planning for National Margarita Day at his chain of Margaritaville restaurants.

The Food Channel has tons of margarita recipes for those of you who choose to mix your own concoctions. And, it reports that Miami has the honor of being one of the nation's "best major metro cities" for margaritas, citing the Cheers On-Premise Handbook 2008, whatever that is.

Google has searches for "National Margarita Day" as being "volcanic" as word of mouth passes the news about today being the day to celebrate America's favorite festive beverage.

Here in Miami, we're always happy to have fun and National Margarita Day sounds like a great party theme. Even if you don't like Jimmy Buffett.

However, drinking alcohol means that people risk drinking too much. When that happens, serious injuries and tragic deaths occur. Drunk driving, for example, isn't just a crime in Florida -- it's the basis for personal injury and wrongful death lawsuits against the driver - and if the driver is a minor, then his/her parents might be found legally responsible for money damages, too.

In personal injury cases where intoxication is proven, the Florida Legislature has passed a law where juries are not limited in the amount of punitive damages they can assess (read that law here, Florida Statute 768.736).

Bars, hotels, and restaurants in Miami and elsewhere are also legally responsible for monitoring their patrons because they can be held accountable for the injuries that result for drunken fun gone bad - although the law is specific on what these duties are.

Florida Statute 768.125 provides:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

Premises liability and "dram shop laws" in Florida therefore make the seller legally accountable for monetary damages to those injured or killed from drunken driving but not other drunking activity that may cause injury (falling, overdose, etc.).

Anyone who sells or serves margaritas, or other alcoholic beverages, will be liable for a drunk driver if (1) the driver is 21 years old or less or (2) the driver was someone that they personally knew had a drinking problem.

So, Happy Margarita Day, Miami!! Have fun today - just be careful out there, and if the bartender stops serving you, don't get mad. Get a cab.

By Bryant Esquenazi on February 22, 2011 2:05 PM

2011's Super Bowl XLV: Tips for the Big Party Weekend - and its Aftermath

Here in Miami Beach, just like the rest of the country, things are gearing up for Super Bowl weekend. Private parties are being planned in homes and hotels, menus and bar needs nailed down (NBC Miami can help here), and here in our fun mecca, there are lots of public parties at hotels, clubs, bars, and the like.

Cool Junkie has already made a Top 6 List of the 2011 Miami Super Bowl parties: first place goes to Gordon Biersch's Super Bowl Party ($20; reservations needed); and sixth place to Sport's Grill where they have the great wings.

Some Floridians will be in Dallas for the game. The Miami Heat's DJ Irie is there for the main event, where he is handling DJ duties for Diddy and Usher. If you're interested, limited tickets are still available for the Diddy event on February 5, 2011 (check here for the latest). There's a lot of celebrities over in Dallas this weekend, hosting parties that you can attend for a price: Demi and Ashton; Andy Roddick; Kid Rock; Nelly; the list goes on and on. You know that South Florida is going to be represented here.

However, from an injury lawyer's perspective (downer alert), all these festivities bring up mental red flags because in Miami and South Florida, there's gonna be some people that wanted to have a good time and the fun turned into tragedy as they are hurt or even killed in an accident of some sort. To that end, we're providing this quick reference for the Miami Super Bowl Party now:

Super Bowl Party overdose of drugs or alcohol, what to do to help your friend? Call 911 - and maybe the Poison Control Center, where they speak several languages, man the line 24/7, and keep things confidential.

911

1-800-222-1222

For more info, go here.

Tempted to trash the hotel room? Don't. Here's why.

Be careful when you drive - don't text, don't drink if you're the driver. More teens die from car accidents than anything else, and distracted driving kills.

By Bryant Esquenazi on February 3, 2011 12:57 PM

Distracted Driving Lawsuits: Who Can You Sue for Loved One's Injury or Death in Distracted Driving Car Crash - Is There a Doctor's Duty to Warn?

Distracted driving causes car accidents - crashes where people are seriously injured or killed. Deaths due to distracted driving are still being studied by academics and governmental agencies. All we know for sure is that texting or talking on the phone while driving is causing car accidents and crashes where people are dying - or suffering severe harm.

The American Journal of Public Health reports that "[d]istracted driving is a growing public safety hazard. Specifically, the dramatic rise in texting volume since 2005 [fatalities from distracted driving increased 28% from 2005 - 2008] appeared to be contributing to an alarming rise in distracted driving fatalities."

Laws are being enacted across the country to outlaw texting while driving and (better) using a phone at all while driving. According to the Department of Transportation, 30 states have outlawed texting for all drivers and another 8 states have outlawed drivers from using handheld cell phones while driving - period. (Most of these laws were passed in 2010.)

In Florida, Preemption Law prohibits localities from enacting distracted driving bans.

It's a celebrity issue. Oprah has a campaign against Distracted Driving (you've heard it: the No Phone Zone). Meanwhile, thumb (or surf) through any tabloid and see Kim Kardashian with her phone; Lindsey Lohan with her phone; Justin B. or Justin T. with his phone.

It's cool to text and talk.

It's convenient to do it while driving. And, face it: even if it's illegal, lots of folks are going to be doing it and it is very difficult for law enforcement to stop. Think about it -- it is not that easy to see what someone is doing as they drive along a busy street or freeway. That will be a true eagle eye that can spot the texter and then successfully prove in court that they are guilty of Distracted Driving. (Although the laws are helping some defendants by providing an "illegal acts" defense in any subsequent lawsuit.)

Which makes the recent development so interesting. Doctors have thrown themselves into this fracas.

The New England Journal of Medicine published an article on distracted driving this summer that included an opinion that doctors have a duty to warn their patients about the dangers of distracted driving. That's right: when Kim Kardashian goes to see her doctor, his peers are suggesting that he explain to Kim that driving while using the phone is very, very dangerous.

After this, one doctor-blogger responded to this NEJM report not with criticism that distracted driving might not be within the doctor's responsibilities but instead to point to a Virginia Tech study that suggests that distracted driving might not be all that bad (oh, please) and that heck, he rides his bike anyway. Wow.

Do Doctors Have a Duty to Warn About the Dangers of Distracted Driving?

Maybe so. Doctors are arguably voluntarily taking on the duty -- and therefore, possibly exposing themselves to the liability. Doctors are including distracted driving as a behavior that may lead to injury and therefore, something against which they have a duty to warn their patients.

DOCTORS are arguably defining the duty in of all places, the New England Journal of Medicine and based on the blogging physician, it's not being challenged within the profession itself. It's not legislatures or plaintiffs' lawyers trying to pin it on them here.

By Bryant Esquenazi on October 14, 2010 4:57 PM

Kim Kardashian and Mel Gibson Car Crashes: What We Can All Learn From Mel and Kim's Recent Fender Benders

Kim Kardashian is sorta one of the Miami locals these days, although she was shopping in Beverly Hills when her Bentley convertible got an estimated $25,000 in damages. It's being reported that Kim zipped over a speed bump too fast, crushing the front bumper of the car.

In the same news reports, we're also learning that Mel Gibson banged up the wheel well of his Mazarati on Sunday. TMZ has the photos, of course. Seems Mel had a slight car crash while driving on a Malibu highway on a Sunday afternoon.

Now, sure. These are two famous people - big time celebrities - who bashed their very expensive cars all by themselves while driving around very beautiful havens for their fellow celebrities. Mel Gibson and Kim Kardashian, all alone, did some minor damage to some very expensive wheels. So what?

Well, from a lawyer's perspective, Mel Gibson and Kim Kardashian have given us some great examples of things to remember when any one of us gets into a minor traffic mishap.

Here's just a few:

Get a Police Report. Mel Gibson crashed his Mazarati on a public road, but Kim crimped her Bentley's bumper in a private parking lot. Public road makes a difference here. Might be best to call the police, make a report of what's happened -- even if you think your fender bender isn't a very big deal. (Which Mel did. Good for Mel.) Your state law may even require you to do so.

Photos at the scene are important. Kim Kardashian and Mel Gibson can rely on the paparazzi to document their car damage and the location, weather, time of day, etc. of the incidents. Assuming you don't have celebrity gossip sites following you around, then you better take your own pics - right there, just as it happened. May be a big help in an insurance claim or a personal injury suit for a defective product down the road.

Were there witnesses? No matter how minor your fender bender may seem at the time, if you saw people watching it happen, then take the time to get their names. And addresses. And phone numbers (work is better than home, best to get both).

Why? Maybe this damage to your car (and maybe to you, too) was just one of those things. Maybe not. You won't know at the scene if there was a product failure -- think the Toyota sudden acceleration as a hidden product failure -- and having the events documented (with police reports, pix, and witnesses) may make the difference between victory and defeat in any product defect fight down the road - as well as any fight with the insurance company over your damage claim.

Follow Kim Kardashian on Twitter at @kimkardashian

By Bryant Esquenazi on August 17, 2010 11:11 AM