Preview
Filing # 44525642 E-Filed 07/28/2016 09:34:47 AM
IN THE CIRCUIT COURT OF THE 17 JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
BARRY ROWARS and
DEBORAH ROWARS,
CASE NO. 15-022067 (21)
Plaintiff,
vs.
BROWARD COUNTY,
Defendant.
/
DEFENDANT, BROWARD COUNTY’S ANSWER TO PLAINTIFFS’
2°¢ AMENDED COMPLAINT AND AFFIRMATIVE DEFENSES
Defendant BROWARD COUNTY, files this, Its Answer and Affirmative Defenses in
response to Plaintiffs BARRY ROWARS and DEBORAH ROWARS’ 2" Amended
Complaint as follows:
1. BROWARD COUNTY is without knowledge as to the allegations set forth in
paragraphs one (1), two (2), five (5), nine (9), thirteen (13), twenty-six (26), twenty-seven
(27), thirty (30), thirty-one (31), thirty-five (35), thirty-nine (39), fifty-three (53), fifty-four (54),
fifty-seven (57), sixty (60), sixty-six (66), seventy-seven (77), seventy-eight (78), eighty-one
(81), eighty-two (82), eighty-five (85) and ninety-one (91) and therefore, same is denied
and Defendant demands strict proof thereof at trial.
2. BROWARD COUNTY admits to the allegations set forth in paragraphs three
(3), four (4), six (6), twenty-eight (28), twenty-nine (29), thirty-two (32), fifty-five (55), fifty-
six (56), fifty-eight (58), seventy-nine (79), eighty (80) and eighty-three (83),
3. BROWARD COUNTY denies the allegations set forth in paragraphs seven
(7) , eight (8), ten (10), eleven (11), twelve (12), seventeen (17), eighteen (18), nineteen
1
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 7/28/2016 9:34:46 AM,****(19), twenty (20), twenty-one (21), twenty-three (23), twenty-four (24), thirty-three (33),
thirty-four (34), thirty-six (36), thirty-seven (37), thirty-eight (38), forty-three (43) and forty-
four (44), forty-five (45), forty-six (46), forty-seven (47), forty-eight (48), fifty-nine (59), sixty-
one (61), sixty-two (62), sixty-three (63), sixty-four (64), sixty-five (65), sixty-nine (69),
seventy-one (71), seventy-two (72), seventy-three (73), eighty-four (84), eighty-six (86),
eighty-seven (87), eighty-eight (88), eighty-nine (89), ninety (90), ninety-four (94), ninety-
six (96), ninety-seven (97) and ninety-eight (98) and demands strict proof thereof at trial.
4. BROWARD COUNTY is without knowledge of the allegations set forth in
Paragraphs fourteen (14), fifteen (15) sixteen (16), twenty-two (22), forty (40), forty-one
(41), forty-two (42), sixty-seven (67), sixty-eight (68), seventy (70), ninety-two (92), ninety-
three (93), and ninety-five (95) to the extent that these paragraphs alleges that Plaintiff,
BARRY ROWARS was present and utilizing any and all portion of the mountain bike trails
at Markham Park on May 18, 2014 and therefore, same is denied and Defendant demands
Strict proof thereof at trial. BROWARD COUNTY denies all remaining allegations of
paragraphs fourteen (14), fifteen (15) sixteen (16), twenty-two (22), forty (40), forty-one
(41), forty-two (42), sixty-seven (67), sixty-eight (68), seventy (70), ninety-two (92), ninety-
three (93), and ninety-five (95) as stated and demands strict proof thereof at trial
5. BROWARD COUNTY is without knowledge of the allegations set forth in
paragraphs twenty-four (24), twenty-five (25), forty-nine (49), fifty (50), fifty-one (51), fifty-
two (52), seventy-four (74), seventy-five (75), seventy-six (76), ninety-nine (99), one
hundred (100), one hundred and one (101) and one hundred and two (102), and to the
extent that these paragraphs allege that Plaintiffs sustained any injuries, damages, losses
or any other alleged claims against the Defendant and therefore, same is denied andDefendant demands strict proof thereof at trial. BROWARD COUNTY denies all remaining
allegations of paragraphs twenty-four (24), twenty-five (25), forty-nine (49), fifty (50), fifty-
one (51), fifty-two (52), seventy-four (74), seventy-five (75), seventy-six (76), ninety-nine
(99), one hundred (100), one hundred and one (101) and one hundred and two (102), that
any of Plaintiffs’ injuries, damages or losses or any other alleged claims against the
Defendant were proximately caused by the Defendant's simple and/or gross negligence
and demands strict proof thereof at trial
DEFENDANT’S AFFIRMATIVE DEFENSES
1. Plaintiff's alleged injury or personal injury was not caused by the negligent or
wrongful act or omission of any employee of BROWARD COUNTY acting within the scope
of the employee's employment under circumstances in which BROWARD COUNTY, if a
private person, would be liable to the Plaintiff, in accordance with the general laws of this
State, and therefore, it is immune from prosecution in the matter because of sovereign
immunity pursuant to Fla. Stat. Section 768.28.
2. BROWARD COUNTY did not have actual or constructive notice of any
alleged dangerous conditions that Plaintiff alleges to have existed in its Complaint.
3. Plaintiff knew or should have known of the open and obvious dangers
complained of in the Complaint, and should have realized and appreciated the possibility
of injury as a result of the dangers and, having a reasonable opportunity to avoid the
dangers, voluntarily exposed himself to the dangers, and therefore BROWARD COUNTY
did not cause any of his alleged injuries and owed Plaintiff no duty of care.
4, Plaintiffs own negligence caused or contributed to causing his injuries and
damages because Plaintiff negligently failed to use reasonable care under thecircumstances, and any recovery in favor of Plaintiff must be reduced by the percentage of
negligence attributable to Plaintiff.
5. The negligence of Plaintiff and the negligence of third parties not under the
control or supervision of BROWARD COUNTY constituted a superseding, intervening
cause, which relieves Defendant County from any alleged negligence.
6. The negligence or intentional acts of an unknown third party who was not
under the control or supervision of BROWARD COUNTY was the sole or contributing cause
of Plaintiff's damages and therefore any recovery in favor of Plaintiff must be reduced by
the percentage of negligence attributable to the non-party. To the extent evidence is
presented at trial that individuals other than Plaintiff or entities other than BROWARD
COUNTY were negligent, it will request the Court and/or Jury to apportion liability, and if
any such individual or entity is not a party, BROWARD COUNTY will request under Fabre
for the Court to include the non-party individual and/or the non-party entity on the jury
verdict form for apportionment of liability if consistent with the evidence.
7. BROWARD COUNTY acted in a reasonable and prudent manner under the
circumstances, and acted reasonably for Plaintiff's health, safety and welfare.
8. BROWARD COUNTY is entitled to a set-off for any collateral source benefits
paid or payable either directly to, or on behalf of, Plaintiff or any other monies paid or
payable to Plaintiff as a result of this alleged incident pursuant to Florida Statutes § 768.76.
9. Plaintiffs failed to serve process upon the State of Florida’s Department of
Financial Services pursuant to Florida Statutes § 768.28(7), which requires, “In actions
brought pursuant to this section, process shall be served upon the head of the agency
concerned and also, except as to a defendant municipality or the Florida Space Authority,upon the Department of Financial Services; and the department or the agency concerned
shall have 30 days within which to plead thereto”, and therefore, this action must be abated.
10. | BROWARD COUNTY is entitled to the protections of sovereign immunity set
forth in Florida Statutes § 768.28, since there has been no waiver of sovereign immunity
with respect to the conduct alleged in Plaintiff's Complaint.
11. The injuries Plaintiff complains of in the allegations to the Complaint are the
result of pre-existing conditions and not causally related to the subject incident and recovery
for those damages is barred as a matter of law.
12. BROWARD COUNTY'S alleged acts or omissions were not the legal or
proximate cause of any damages to the Plaintiff and recovery of those damages is barred
as a matter of law.
13. The Plaintiff's economic losses claims are unreasonable and excessive.
Specifically, the medical expenses are unreasonable in amount and should be reduced
accordingly. Plaintiff's medical providers have accepted Medicare, Medicaid, health
insurance, worker's compensation insurance, reduced cash payments and payments
waivers. Plaintiff's claims for economic damages should be limited to amounts accepted
by the medical providers in accordance therewith. Additionally, Plaintiff is asserting claims
for payment to medical providers who have no expectation of payment based upon existing
personal relationships.
14. This action is subject to dismissal and/or abatement as Plaintiff failed to
comply with the statutory conditions precedents set forth in Florida Statutes § 768.28(6) to
bringing and maintaining this lawsuit against this Defendant, and further have failed to set
forth in his Complaint that he has complied with the statutory conditions precedent.Specifically, Plaintiffs have failed to present their claims in accordance with the specific
requirements set forth in § 768.28(6)(a) and (6)(c).
15. | BROWARD COUNTY did not waive its sovereign immunity rights for any acts
or omissions not within the purview of those considered as proper for waiver pursuant to
Fla. Stat. Section 768.28.
16. Plaintiff, BARRY ROWAR’S claims are barred, and Defendant is immune
from all claims presented in this lawsuit based upon his legal status at the Markham Park
mountain bike trails as an unknown and undiscovered trespasser pursuant to common law
and the provisions of Florida Statutes S. 768.075.
17. Defendant had no constructive or actual notice of Plaintiff's acts of
trespassing onto the Markham Park mountain bike trails, he was not discovered to be
trespassing and did not engage in intentional conduct and therefore, in accordance with
Florida Statutes S. 768.075., Plaintiff was not owed any duty to warn of dangerous
conditions.
18. Plaintiff, BARRY ROWAR'’S claims are barred, and Defendant is immune
from all claims presented in this lawsuit based upon his legal status at the Markham Park
mountain bike trails as an discovered trespasser pursuant to the provisions of Florida
Statutes S. 768.075.
19. Plaintiff, BARRY ROWAR’S claims are barred based upon the terms and
provisions of Florida Statutes S. 316.0085(4) which provides, “(4) A governmental entity or
public employee is not liable to any person who voluntarily participates in skateboarding,
inline skating, paintball, or freestyle or mountain and off-road bicycling for any damage or
injury to property or persons which arises out of a person's participation in such activity,and which takes place in an area designated for such activity.” (2014).
20. Plaintiff, BARRY ROWAR’S claims are barred based upon his assumption of
the risk associated with his intentional operation of a bicycle upon a mountain bike trail,
which is an inherently dangerous activity that involves inherent risks of physical injury.
Plaintiff knew or should have known of the dangers described in the complaint, realized
and appreciated the possibility of injury, and having a reasonable opportunity to avoid them,
voluntarily exposed himself to the dangers.
21. The application of Florida Statutes S. 316.0085 to the factual allegations in
this case does not, in any way, operate as a waiver of its tights under principles of sovereign
immunity.
22. To the extent that Plaintiff, BARRY ROWAR’S claims as set forth in the 2"
Amended Complaint are limited or barred as a matter of law, Plaintiff, DEBORAH
ROWAR'S claims are derivative in nature and subject to the same applicable limitations or
bars to recovery.
BROWARD COUNTY expressly reserves the right to raise additional defenses as
discovery may reveal subject to seeking the entry of a Court Order granting leave of Court
pursuant to Fla. R. Civ. Pro. 1.190.
DEMAND FOR JURY TRIAL
BROWARD COUNTY seeks trial by jury on all issues so triable as a matter of right.
CERTIFICATE OF SERVICE
| hereby certify that on July 26, 2016, a copy hereof was served by an automatic
email generated by the Florida Courts E-Filing Portal to Samuel J. Simon, Esq., Ansel &
Miller, LLC, at ssinon@anselmiller.com.Joni Armstrong Coffey
County Attorney for Defendant
Governmental Center, Suite 423
115 South Andrews Avenue
Fort Lauderdale, Florida 33301
Telephone: (954) 357-7600
Telecopier: (954) oe
/
a
¢ Z
By: /s/ Brian E. Pabian
BRIAN E. PABIAN,
Assistant County Attorney
Florida Bar No. 0059757
Preview
Filing # 44525642 E-Filed 07/28/2016 09:34:47 AM IN THE CIRCUIT COURT OF THE 17 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA BARRY ROWARS and DEBORAH ROWARS, CASE NO. 15-022067 (21) Plaintiff, vs. BROWARD COUNTY, Defendant. / DEFENDANT, BROWARD COUNTY’S ANSWER TO PLAINTIFFS’ 2°¢ AMENDED COMPLAINT AND AFFIRMATIVE DEFENSES Defendant BROWARD COUNTY, files this, Its Answer and Affirmative Defenses in response to Plaintiffs BARRY ROWARS and DEBORAH ROWARS’ 2" Amended Complaint as follows: 1. BROWARD COUNTY is without knowledge as to the allegations set forth in paragraphs one (1), two (2), five (5), nine (9), thirteen (13), twenty-six (26), twenty-seven (27), thirty (30), thirty-one (31), thirty-five (35), thirty-nine (39), fifty-three (53), fifty-four (54), fifty-seven (57), sixty (60), sixty-six (66), seventy-seven (77), seventy-eight (78), eighty-one (81), eighty-two (82), eighty-five (85) and ninety-one (91) and therefore, same is denied and Defendant demands strict proof thereof at trial. 2. BROWARD COUNTY admits to the allegations set forth in paragraphs three (3), four (4), six (6), twenty-eight (28), twenty-nine (29), thirty-two (32), fifty-five (55), fifty- six (56), fifty-eight (58), seventy-nine (79), eighty (80) and eighty-three (83), 3. BROWARD COUNTY denies the allegations set forth in paragraphs seven (7) , eight (8), ten (10), eleven (11), twelve (12), seventeen (17), eighteen (18), nineteen 1 *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 7/28/2016 9:34:46 AM,****(19), twenty (20), twenty-one (21), twenty-three (23), twenty-four (24), thirty-three (33), thirty-four (34), thirty-six (36), thirty-seven (37), thirty-eight (38), forty-three (43) and forty- four (44), forty-five (45), forty-six (46), forty-seven (47), forty-eight (48), fifty-nine (59), sixty- one (61), sixty-two (62), sixty-three (63), sixty-four (64), sixty-five (65), sixty-nine (69), seventy-one (71), seventy-two (72), seventy-three (73), eighty-four (84), eighty-six (86), eighty-seven (87), eighty-eight (88), eighty-nine (89), ninety (90), ninety-four (94), ninety- six (96), ninety-seven (97) and ninety-eight (98) and demands strict proof thereof at trial. 4. BROWARD COUNTY is without knowledge of the allegations set forth in Paragraphs fourteen (14), fifteen (15) sixteen (16), twenty-two (22), forty (40), forty-one (41), forty-two (42), sixty-seven (67), sixty-eight (68), seventy (70), ninety-two (92), ninety- three (93), and ninety-five (95) to the extent that these paragraphs alleges that Plaintiff, BARRY ROWARS was present and utilizing any and all portion of the mountain bike trails at Markham Park on May 18, 2014 and therefore, same is denied and Defendant demands Strict proof thereof at trial. BROWARD COUNTY denies all remaining allegations of paragraphs fourteen (14), fifteen (15) sixteen (16), twenty-two (22), forty (40), forty-one (41), forty-two (42), sixty-seven (67), sixty-eight (68), seventy (70), ninety-two (92), ninety- three (93), and ninety-five (95) as stated and demands strict proof thereof at trial 5. BROWARD COUNTY is without knowledge of the allegations set forth in paragraphs twenty-four (24), twenty-five (25), forty-nine (49), fifty (50), fifty-one (51), fifty- two (52), seventy-four (74), seventy-five (75), seventy-six (76), ninety-nine (99), one hundred (100), one hundred and one (101) and one hundred and two (102), and to the extent that these paragraphs allege that Plaintiffs sustained any injuries, damages, losses or any other alleged claims against the Defendant and therefore, same is denied andDefendant demands strict proof thereof at trial. BROWARD COUNTY denies all remaining allegations of paragraphs twenty-four (24), twenty-five (25), forty-nine (49), fifty (50), fifty- one (51), fifty-two (52), seventy-four (74), seventy-five (75), seventy-six (76), ninety-nine (99), one hundred (100), one hundred and one (101) and one hundred and two (102), that any of Plaintiffs’ injuries, damages or losses or any other alleged claims against the Defendant were proximately caused by the Defendant's simple and/or gross negligence and demands strict proof thereof at trial DEFENDANT’S AFFIRMATIVE DEFENSES 1. Plaintiff's alleged injury or personal injury was not caused by the negligent or wrongful act or omission of any employee of BROWARD COUNTY acting within the scope of the employee's employment under circumstances in which BROWARD COUNTY, if a private person, would be liable to the Plaintiff, in accordance with the general laws of this State, and therefore, it is immune from prosecution in the matter because of sovereign immunity pursuant to Fla. Stat. Section 768.28. 2. BROWARD COUNTY did not have actual or constructive notice of any alleged dangerous conditions that Plaintiff alleges to have existed in its Complaint. 3. Plaintiff knew or should have known of the open and obvious dangers complained of in the Complaint, and should have realized and appreciated the possibility of injury as a result of the dangers and, having a reasonable opportunity to avoid the dangers, voluntarily exposed himself to the dangers, and therefore BROWARD COUNTY did not cause any of his alleged injuries and owed Plaintiff no duty of care. 4, Plaintiffs own negligence caused or contributed to causing his injuries and damages because Plaintiff negligently failed to use reasonable care under thecircumstances, and any recovery in favor of Plaintiff must be reduced by the percentage of negligence attributable to Plaintiff. 5. The negligence of Plaintiff and the negligence of third parties not under the control or supervision of BROWARD COUNTY constituted a superseding, intervening cause, which relieves Defendant County from any alleged negligence. 6. The negligence or intentional acts of an unknown third party who was not under the control or supervision of BROWARD COUNTY was the sole or contributing cause of Plaintiff's damages and therefore any recovery in favor of Plaintiff must be reduced by the percentage of negligence attributable to the non-party. To the extent evidence is presented at trial that individuals other than Plaintiff or entities other than BROWARD COUNTY were negligent, it will request the Court and/or Jury to apportion liability, and if any such individual or entity is not a party, BROWARD COUNTY will request under Fabre for the Court to include the non-party individual and/or the non-party entity on the jury verdict form for apportionment of liability if consistent with the evidence. 7. BROWARD COUNTY acted in a reasonable and prudent manner under the circumstances, and acted reasonably for Plaintiff's health, safety and welfare. 8. BROWARD COUNTY is entitled to a set-off for any collateral source benefits paid or payable either directly to, or on behalf of, Plaintiff or any other monies paid or payable to Plaintiff as a result of this alleged incident pursuant to Florida Statutes § 768.76. 9. Plaintiffs failed to serve process upon the State of Florida’s Department of Financial Services pursuant to Florida Statutes § 768.28(7), which requires, “In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality or the Florida Space Authority,upon the Department of Financial Services; and the department or the agency concerned shall have 30 days within which to plead thereto”, and therefore, this action must be abated. 10. | BROWARD COUNTY is entitled to the protections of sovereign immunity set forth in Florida Statutes § 768.28, since there has been no waiver of sovereign immunity with respect to the conduct alleged in Plaintiff's Complaint. 11. The injuries Plaintiff complains of in the allegations to the Complaint are the result of pre-existing conditions and not causally related to the subject incident and recovery for those damages is barred as a matter of law. 12. BROWARD COUNTY'S alleged acts or omissions were not the legal or proximate cause of any damages to the Plaintiff and recovery of those damages is barred as a matter of law. 13. The Plaintiff's economic losses claims are unreasonable and excessive. Specifically, the medical expenses are unreasonable in amount and should be reduced accordingly. Plaintiff's medical providers have accepted Medicare, Medicaid, health insurance, worker's compensation insurance, reduced cash payments and payments waivers. Plaintiff's claims for economic damages should be limited to amounts accepted by the medical providers in accordance therewith. Additionally, Plaintiff is asserting claims for payment to medical providers who have no expectation of payment based upon existing personal relationships. 14. This action is subject to dismissal and/or abatement as Plaintiff failed to comply with the statutory conditions precedents set forth in Florida Statutes § 768.28(6) to bringing and maintaining this lawsuit against this Defendant, and further have failed to set forth in his Complaint that he has complied with the statutory conditions precedent.Specifically, Plaintiffs have failed to present their claims in accordance with the specific requirements set forth in § 768.28(6)(a) and (6)(c). 15. | BROWARD COUNTY did not waive its sovereign immunity rights for any acts or omissions not within the purview of those considered as proper for waiver pursuant to Fla. Stat. Section 768.28. 16. Plaintiff, BARRY ROWAR’S claims are barred, and Defendant is immune from all claims presented in this lawsuit based upon his legal status at the Markham Park mountain bike trails as an unknown and undiscovered trespasser pursuant to common law and the provisions of Florida Statutes S. 768.075. 17. Defendant had no constructive or actual notice of Plaintiff's acts of trespassing onto the Markham Park mountain bike trails, he was not discovered to be trespassing and did not engage in intentional conduct and therefore, in accordance with Florida Statutes S. 768.075., Plaintiff was not owed any duty to warn of dangerous conditions. 18. Plaintiff, BARRY ROWAR'’S claims are barred, and Defendant is immune from all claims presented in this lawsuit based upon his legal status at the Markham Park mountain bike trails as an discovered trespasser pursuant to the provisions of Florida Statutes S. 768.075. 19. Plaintiff, BARRY ROWAR’S claims are barred based upon the terms and provisions of Florida Statutes S. 316.0085(4) which provides, “(4) A governmental entity or public employee is not liable to any person who voluntarily participates in skateboarding, inline skating, paintball, or freestyle or mountain and off-road bicycling for any damage or injury to property or persons which arises out of a person's participation in such activity,and which takes place in an area designated for such activity.” (2014). 20. Plaintiff, BARRY ROWAR’S claims are barred based upon his assumption of the risk associated with his intentional operation of a bicycle upon a mountain bike trail, which is an inherently dangerous activity that involves inherent risks of physical injury. Plaintiff knew or should have known of the dangers described in the complaint, realized and appreciated the possibility of injury, and having a reasonable opportunity to avoid them, voluntarily exposed himself to the dangers. 21. The application of Florida Statutes S. 316.0085 to the factual allegations in this case does not, in any way, operate as a waiver of its tights under principles of sovereign immunity. 22. To the extent that Plaintiff, BARRY ROWAR’S claims as set forth in the 2" Amended Complaint are limited or barred as a matter of law, Plaintiff, DEBORAH ROWAR'S claims are derivative in nature and subject to the same applicable limitations or bars to recovery. BROWARD COUNTY expressly reserves the right to raise additional defenses as discovery may reveal subject to seeking the entry of a Court Order granting leave of Court pursuant to Fla. R. Civ. Pro. 1.190. DEMAND FOR JURY TRIAL BROWARD COUNTY seeks trial by jury on all issues so triable as a matter of right. CERTIFICATE OF SERVICE | hereby certify that on July 26, 2016, a copy hereof was served by an automatic email generated by the Florida Courts E-Filing Portal to Samuel J. Simon, Esq., Ansel & Miller, LLC, at ssinon@anselmiller.com.Joni Armstrong Coffey County Attorney for Defendant Governmental Center, Suite 423 115 South Andrews Avenue Fort Lauderdale, Florida 33301 Telephone: (954) 357-7600 Telecopier: (954) oe / a ¢ Z By: /s/ Brian E. Pabian BRIAN E. PABIAN, Assistant County Attorney Florida Bar No. 0059757