TWO OF THE FOUR VICTIMS - Dennis Ryan Rinon Ortiz (second from left), 33, Lily Marie Azarcon (to Ortiz’s left), 26, both died on April 3, 2013. Their three companions, from Azarcon’s left to right, are Nikki Vargas, Josh Alfafara and Norman Henson. The latter three stayed behind in their hotel because there was no room for them in the van. At extreme left is their host, the late Pep Vasquez. | (JGL Photo by Kiana Cruz, used with permission)
CHICAGO (JGL) — Circuit Court Judge Antonio Arzola of the 11th Judicial Circuit in Miami-Dade County, Florida had given the Chiefs of Police and the City of Opa-Locka in Miami-Dade County until Oct. 30 to file an answer to his decision to deny their appeal to dismiss with prejudice a wrongful death suit. The action was brought by heirs of four Filipinos and Filipino Americans who all died in a car crash in Miami-Dade County four years ago.
In their motion to dismiss the case, Chiefs of Police Cheryl Cason and Jeffrey Key, and City Manager Kelvin Baker cited a long list of precedents. They argued that Sergio Perez, a police officer, was “acting within the course and scope of his employment with the City of Opa-Locka.” Perez was accused of negligence, of improperly instituting and maintaining a police chase of motorist Willie Dumel.
Dumel recklessly entered I-95 highway in the wrong direction that smacked into the car carrying the four passengers who were all killed instantly on April 3, 2013.
Cason, Key and Baker’s lawyer, E. Bruce Johnson, has filed an appeal to the Third District Court of Appeals in Miami, Florida.
Killed in the fiery incident were Dennis Ryan Rinon Ortiz, 33, international sales director of Alveo Land, a subsidiary of Philippine-based Ayala Land Company; Ortiz’s Alveo subordinate associate, Lily Marie Azarcon, 26, both of the Philippines, a single mother of an eight-year old child; Katelyn Rhia Hernandez; Azarcon’s friend, Albertson Anthony Almase, 31, a Petty Officer 2nd Class of the U.S. Navy, residing in Yokosuka, Japan and owning assets in Florida; and Almase’s little sister, Kristina Almase, 26, a former resident of Cebu in the Philippines, who just relocated to Fort Lauderdale, Florida prior to the accident.
DEFENDANTS CITE STATE & FEDERAL PRECEDENTS
The defendants said that “State and federal courts, including federal courts under the 11th Circuit and in Florida, have uniformly held that negligent employment torts, such as those alleged here, are not actionable against governmental co-workers, including those with supervisory authority such as Chief of Police or City Manager.” They cited Matthews v. City of Gulfport, 72 F. Supp. 2d 1328, 1340-41 (M.D. Fla 1999) (applying Florida common law and determining that police is deemed an officer’s employer).
The three government officials also cited in their defense another court case, Jensen v. Gale, 2014 U.S. List. Lexis 175701 (D. Utah 2014), which ruled that “Chief of Police is not amenable to suit for negligent retention since he is not an employer.”
They argued that “Florida is devoid of any authorities which impose liability for improper (whether negligent or in bad faith) employment upon government supervisors, rather than the government itself.”
They added, “negligent retention only allows for recovery against an employer for acts of an employee committed outside the scope and course of employment,” citing the case of Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. 2d DCA 1986).
“This separate and distinct tort is available only when no special relationship exists (i.e., under respondent superior, by statute, or under principles of agency) to make the principal legally responsible for the conduct of the agent,” they said.
EMPLOYEE STOLE AIRPLANE
Only after a jury trial can plaintiffs recover on their claim based on employer’s negligence in the selection, retention, training, supervision, entrustment, and retention of an employee if the claim was the result of employee’s willful and intentional conduct occurring outside the course and scope of employment.
They cited the case of an employee who acted outside the scope of his employment when the employee stole “the airplane owned by the claimant,” in the case of Island City Flying Service v. General Electric credit Corp. 585 So. 2d 274 (Fla. 1991).
Or a school board employee performing “satanic acts on students including sexual abuses and batteries” in Duyser v. School Board of Broward County, 573 So. 2d 130 (Fla. 4th DCA 1991). Or a county employee acting outside the scope of his employment and committing an armed robbery against the claimant in Metropolitan Dade County v. Martino, 710 So. 2d 20 (Fla. 3rd DCA 1989).
According to the three defendants, Florida statute’s Sec. 768.28(9) says that “No officer, employee or agent of the state or any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights safety or property.”
After the pre-trial issues are resolved, a jury trial of the civil suit will begin.
In the criminal case, Willie Dumel, the fleeing motorist who was driving in the wrong direction who was chased by Perez, was sentenced to ten years in prison and additional ten years of probation. He pleaded guilty to four counts of manslaughter before Judge Alberto Milian of the 11th Judicial Circuit Court in and for Miami-Dade County in Miami, Florida.