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

FDA Panel Revokes Avastin for Breast Cancer Treatment Despite Patient Outcry

This week, an FDA Panel made up of independent experts unanimously voted that the cancer-treatment drug Avastin (bevacizumab) no longer be sold as a treatment for breast cancer in the United States. It will now be up to the FDA Commissioner, Margaret Hamburg, M.D., to review and decide upon the panel's recommendation - and if the Commissioner agrees, then the FDA will remove Avastin from the market.

Last December, as we detailed in our post, "Today's Recall of Breast Cancer Drug Avastin: Scandalous FDA Drug Recall That Many Deem "Death Panel" Decision," there was a recall of the drug - which was met by huge patient outcry and many pointing to Avastin as the first example of Death Panels in this country.

Despite that huge backlash in December, this FDA panel has issued its conclusion that Avastin offers "no substantial benefits" while it has "substantial risks" to victims of breast cancer. Interestingly, the panel okayed Avastin for other cancer treatments, such as lung cancer, colo-rectal cancer, renal cell carcinoma, and cancerous brain tumors.

Want to make a comment to the FDA Director on Avastin?

You can email her at margaret.hamburg@fda.hhs.gov.

By Bryant Esquenazi on June 30, 2011 1:15 PM

Is Florida No-Fault Car Insurance Doomed Because of Claims of Insurance Fraud?

Across Florida, lots of people are filing fake car insurance claims and the insurance companies are arguing that this is due to no-fault insurance: the insurance industry does not like no-fault auto insurance policies. (For an explanation of P.I.P. coverage, read our earlier post, "What is PIP Insurance Coverage - and How Insurance Companies Just Lost Their Latest Try at Getting Florida to Gut PIP Coverage.")

It's easy to understand why. The insurance company does not investigate or question claims that it receives after an accident to try and place blame: instead, under Florida's no fault laws, when there is a car wreck, each policyholder is paid by their own insurance company for their injuries. You get hurt, your car gets damaged: you file a claim with your carrier.

It means that injured people in Florida get insurance coverage fast because there is no fight between two insurance companies about who is going to be responsible for paying the medical bills. That's a good thing.

However, apparently there are people who are taking advantage of the system in this bad economic time and the Florida insurance companies want to change the playing field. They don't want no fault insurance any longer.

According to a recent FoxBusiness news story, Florida leads the country in car insurance fraud. Criminals stage car crashes just to file the P.I.P. claims and the National Insurance Crime Bureau representative is quoted as saying that organized crime is involved. Apparently, there is an organization of car drivers and grifting medical clinics working together to systematically bilk millions from national insurance companies, all because of the no fault protections.

Reform? No, the insurance companies want to end no fault insurance in this country. Which means more fights before claims are paid for injured victims who are already suffering through no fault of their own. That is not good for honest Floridians who get hurt in accidents and need fast, dependable insurance help.

The fight to end Florida No Fault Car Insurance isn't over just because the lobbying failed with the Florida Legislature this spring. There is a huge public campaign backed with lots of power and clout, focused and fighting not to fix, but to end no fault coverage in this state. Be aware.

By Bryant Esquenazi on June 28, 2011 2:09 PM

'Jackass' star Ryan Dunn Dies in Drunk Driving Accident: Will the Bar Be Sued? Will His Friends Who Let Him Drive Away? Lessons on the Law of Duty

Ryan Dunn, best known as one of the stars of the movie "Jackass" was put to rest yesterday at a memorial service attended by several celebrities as well as many fans. The rumors that the Westboro Baptist Church would show up to protest didn't pan out: there were no protesters there.

At this point, pretty much everyone knows that Ryan Dunn died while driving drunk, with a blood alcohol content twice the legal limit, after losing control of his car while going between 130 and 140 mph, killing both Dunn and his passenger, Zach Hartwell, in a fiery one-car crash after the car veered off the roadway.

We also know that shortly before the crash, Ryan Dunn was seen at a local bar, partying with friends, and the latest tally was that he had 6 shots and 2 beers before getting behind the wheel. There are photos.

Meanwhile, renowned movie critic Roger Ebert backpedaled on his Twitter tweet published shortly after the news of Dunn's death hit the airwaves: he first tweeted, "Friends don't let jackasses drink and drive," and after worldwide backlash, Ebert apologized with "I should clarify: Anyone who drinks and drives is a jackass. That included me in my drinking days. Some are lucky enough to find sobriety," as well as writing a blog post on the subject. To read all his tweets, check out @ebertchicago.

Will the Bar Get Sued? No

There has already been an announcement that the bar where Dunn was seen drinking will not be held liable for contributing to this accident because there is no evidence that the bar employees or management were aware that Dunn was drunk. He didn't look drunk, he didn't weave or slur his words or anything like that ... so the police have released the bar folk from liability.

Why? If the bar is not aware that someone is under the influence, then they don't have a duty to step into the situation and stop serving the customer. Or to call a cab. Or chat with pals. No duty.

Will His Pals Get Sued? No.

There is no duty under the law to proactively step in and protect someone else. His friends shoulda coulda woulda ... but the law does not impose a duty on a citizen to invade the freedom of another citizen by taking their keys or driving them home. It may be the right thing to do, but it's not the legal thing to do. No duty.

Will the Estate of Ryan Dunn Get Sued? Maybe Yes.

There is a legal duty of a driver to protect those in his or her vehicle. It's negligence, maybe gross negligence, maybe more to drive drunk with someone sitting in that passenger seat. You have a legal duty to drive safely. You have a legal duty to obey the law -- no speeding, no driving while under the influence.

So, in this terrible tragedy, the only clear legal duty right now is the one owed by the driver to the passenger. And that duty looks to have been breached by the driver when the car crashed and killed Zach Hartwell.

Prediction: The Estate of Zach Hartwell will seek wrongful death damages from the Estate of Rick Dunn. Sad, but true. Legal duty.

By Bryant Esquenazi on June 23, 2011 2:25 PM

Hot Coffee Documentary on HBO Next Monday: Slant and Distortion of Plaintiffs Personal Injury Lawsuits Is Intentional - Watch This Show

Hot Coffee is a documentary film that has already won lots of awards for filmmaker Susan Saladoff - and hopefully its debut next Monday, June 27, 2011, on HBO will bring it great exposure and success.

Why? Because Hot Coffee brings to light the slant and distortion that has pervaded the media as well as public perception not only of the McDonald's Hot Coffee case (which was far from a frivilous suit, this woman was severely injured) but to all the attempts to limit an injury victim's rights to justice in the American courtroom.

Last summer's post, "In Defense of the McDonald's Coffee Cup Case - Again," discussed the McDonald's Hot Coffee case and how people simply don't know the real story of what happened in that case. It's amazing how wrong the perceptions are, almost like that 'telephone' game we all played as kids. With each messenger, the message gets changed just a bit.

Hot Coffee, the HBO Documentary, Sheds Light on How Truth Has Been Hidden From You

From the website, the filmmakers discuss their film:

"Despite the fact that federal legislation has never been successful, big business interests have won in the hearts and minds of average people. They launched a public relations campaign starting in the mid-80's and continuing over the last two decades to convince the public that we have out of control juries, too many frivolous lawsuits and a civil justice system that needs reforming. They have used anecdotes, half-truths and sometimes out and out lies in their efforts, for one purpose - to put limits on people's access to the court system, the one and only place where an average citizen can go toe to toe with those with money and power and still have a shot at justice."

http://www.youtube.com/watch?feature=player_embedded&v=q4UpQ8U4gX4

By Bryant Esquenazi on June 21, 2011 2:46 PM

Florida Man Victim of Pit Bull Attack While Doing Yard Work: Florida Dog Attack Laws Put Strict Liability on Dog Owner

The Sun Sentinel is reporting today about an elderly gentlemen in Palatka who died in a Gainesville, Florida, hospital after suffering a vicious dog attack that resulted in one of his arms being severed and another almost being pulled from his body. The dogs, identified as either pit bulls or pit bull mixes, were owned by his neighbor. Seems they got out of their yard and attacked the man as he was doing yard work.

What a terrible thing to have happen to anyone. Unfortunately, dog attacks and dog bites are all too commonplace in Florida - and across the country.

According to the Center for Disease Control and Prevention, over 4,500,000 people are bitten by dogs every year in this country, and 20% of those folk need medical attention as a result of the bites.

Many of these dog bites involve certain breeds, and the pit bull is among the most feared breeds for dog attacks in Florida and the U.S. In fact, there is one website dedicated to recording all media reports of pit bull dog attacks, state by state, and you can visit it for a listing of pit bull attacks throughout Florida since 2009: www.pitattacksbystate.com.

Florida Laws Protect Dog Attack Victims With Personal Injury Lawsuits and Damage Claims

In Florida, the law stands ready to protect victims of dog attacks or dog bites. Anyone harmed by a dog in the State of Florida can sue for damages based upon the the dog bite laws (see below) as well as the common law bases of negligence or intentional tortious injury.

Here is the Florida Dog Bite Law (Fla. Stat. 767.01, 04):

Dog owner's liability for damages to persons, domestic

Dog owner's liability for damages to persons bitten.--The owner of any 767.04 dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners' knowledge of such viciousness. However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person's negligence contributed to the biting incident. A person is lawfully upon private property of such owner within the meaning of this act when the person is on such property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or when the person is on such property upon invitation, expressed or implied, of the owner. However, the owner is not liable, except as to a person under the age of 6, or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words "Bad Dog." The remedy provided by this section is in addition to and cumulative with any other remedy provided by statute or common law.

 767.01 animals, or livestock.--Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of "domestic animal" and "livestock" as provided by s. 585.01.

How Safe is Your Diabetes Drug, Miami? Three Popular Diabetes Drugs Being Questioned by Government Agencies This Week

What diabetes drug are you or a loved one depending upon to control diabetes safely? According to recent news reports, more and more of the diabetes drugs prescribed by doctors and previously okayed by the Food and Drug Administration (FDA) are now being questioned for their dangers.

Potentially unsafe and dangerous drugs for diabetes include:

1. Avandia (rosiglitazone)

Avandia was revealed to be risky last fall and instead of helping diabetes sufferers, too many Avandia users were experiencing heart attacks and dying from heart disease that may be tied to the diabetes drug rosiglitazone. A class action lawsuit was filed by 43 diabetes sufferers who are now Avandia victims just this week in Illinois.

2. Actos (pioglitazone)

This week, the diabetes drug Actos was pulled from the market in France and Germany because of concernes that this diabetes drug might be causing bladder cancer in those taking Actos. A research study done in France found that Actos users were 22% more likely to have bladder cancer as compared to diabetics using other prescriptions.

3. Victoza (liraglutide)

Liraglutide is used by diabetes sufferers who have been unsuccessful with first-line therapy, and is injected once a day. Yesterday, the FDA issued a warning that liraglutide injections (Victoza, Novo Nordisk) may be connected to thyroid C-cell tumors and acute pancreatitis.

We Must All Be Aware of Dangerous Drugs and Not Blindly Trust Medicine as Being Safe

Diabetes is a national epidemic - and here in South Florida, more and more diabetes sufferers are diagnosed every day. Dangerous drugs, unfortunately, are another huge national problem and it is not enough to trust your doctor or your pharmacy to give you or your loved one safe medicine.

Be aware of what you are taking - and if you are taking these diabetes drugs, please check with your doctor. Maybe you need to find another method to control your diabetes.

And if you or a loved one suffers from diabetes and now has a diagnosis of cancer, heart disease, or other life-threatening illness, then perhaps it's time to check with a lawyer, too. Don't trust a doctor to always let you know that you have a potential lawsuit.

By Bryant Esquenazi on June 14, 2011 1:27 PM