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

Casey Anthony Opening Statements Today - Florida Example of How Trials Really Work, B4 You Get There

Casey Anthony's trial began today and in her attorney's opening statement, revelations were given to us all about how her daughter Caylee Anthony died, including allegations that her father George Anthony was involved in covering-up the drowning death of the toddler.

It's being called the biggest trial since O.J. Simpson and most of the news media, national and local, is covering this story. Nancy Grace has her show dedicated to this trial nightly.

You can watch the live feed of the Casey Anthony trial here.

True enough, this is a criminal trial. Personal injury cases have civil trials. Civil procedure and criminal procedure is different.

What Personal Injury Claimants and Plaintiffs Can Learn By Watching the Casey Anthony Trial

Nevertheless, anyone considering filing a personal injury case can learn a lot by watching this trial about what it means to be a plaintiff in a courtroom, fighting for justice when they or a loved one has been seriously injured or suffered a wrongful death.

In a Florida civil trial, just like a Florida criminal trial like the Casey Anthony trial going on now in Orlando, you will have the following:

The Judge
Sitting in robes above the rest of the participants, and able to see everything that's going on, the judge has the job of making sure that proper trial procedure is followed and that the law is followed: when necessary, the judge will make decisions on points of law.

The Jury
Civil plaintiffs must ask for a jury (and pay a jury fee); in criminal cases, they are mandatory unless the defendant waives the jury (and then the judge decides the case). In major cases, there are 12 jurors. In cases with smaller amounts in controversy, there may be less than twelve.

The judge decides what is legally admitted as evidence. The jury decides the facts based on the law given to them (in jury instructions) and the jury makes the final decision (verdict).

The Parties

In a personal injury case, the one who files the suit is the "plaintiff," and the one who is sued is the "defendant." The defendant learns of the lawsuit in pre-suit negotiations, usually; however, some defendants first learn of the lawsuit when they are served with notice of the complaint being filed.

The Evidence

Witnesses give testimony on the stand or via deposition. Witnesses also "prove up" documents that serve as evidence. This can take days or weeks.

The Record

A court reporter is responsible for keeping track of all that happens in the trial: recording all the words spoken and all the exhibits entered as evidence. The record will be the transcript of what the witnesses said in words and the documents that were admitted into evidence. This is what the appellate court reviews if an appeal is filed: the record that the court reporter has accumulated, sealed, and sent to the appeals court.

The Trial
Jury is selected

1. A panel of potential jurors is pulled from the jury room and they are brought to the courtroom. Attorneys for both sides question them, and the judge will sometimes ask questions, too. The goal is to get 12 unbiased people to serve on the jury, along with a couple of alternates.

2. Opening Statements

Lead attorneys for both sides make opening statements. Here, the lawyers give the jury an outline of what they will prove in the evidence. The Plaintiff's attorney gets to speak first at trial, before the defendant's attorney summarizes their defense.

3. Evidence is Given By Both Sides

Witnesses are called. The lawyer that calls the witness asks questions in "direct examination" and the opposition asks his/hers in "cross examination." Documents are presented as evidence as witnesses testify, unless the parties have argued documentary evidence already with the judge in a pre-trial motion.

4. Case Closes

After both sides are finished (they "rest"), then the attorneys give "closing arguments" to the jury.  Each side analyzes the evidence that has been presented during the trial, and argues how it fulfills his position. The Plaintiff will have the chance to rebut the defense's closing argument (and in a criminal case, the prosecution will offer a rebuttal)
5 Jury Decides

After the closing arguments, the judge will instruct the jury - and they will get written instructions that relate what the judge has said. They jury will then be escorted to the jury room to meet and decide. In some cases, they will be sequestered, and forced to stay in hotel rooms and away from their personal lives until they've reached a verdict.

6. Verdict is Issued

Once the jury decides, then the attorneys are contacted and everyone is asked to return to the courthouse to hear the verdict read to them.

By Bryant Esquenazi on May 24, 2011 1:38 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

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