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Filing # 106409973 E-Filed 04/17/2020 04:52:24 PM
IN THE CIRCUIT COURT OF THE
1774 JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
Case No. CACE19-026009 (03)
CHANDLER JEAN BAPTISTE,
Plaintiff,
Vv.
CITY OF SUNRISE,
Defendant. :
DEFENDANT, CITY OF SUNRISE’S, ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFFE’S AMENDED COMPLAINT.
COMES NOW, Defendant, CITY OF SUNRISE (“City”), by and through its undersigned
attorneys and pursuant to the Florida Rules of Civil Procedure, files its Answer and Affirmative
Defenses to Plaintiff's Amended Complaint and states as follows:
1. The City admits that Plaintiff has alleged that this is an action for damages in excess
of $30,000. However, the City denies that Plaintiff is entitled to any damages against the City
and demands strict proof of same.
2. Denied since this Defendant is without knowledge.
3. Denied since this Defendant is without knowledge.
4, The City admits that it is a municipality in the state of Florida and a governmental
agency, conducting business in Broward County, Florida. The City denies any allegations not
admitted herein.
5, The City admits that it is a municipality and a governmental agency in the state of
Florida. Defendant, City, also admits that it is the owner of the motor vehicle referred to in
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/17/2020 04:52:24 PM.****Jean Baptiste v. City of Sunrise
CACE19-026009 (03)
paragraph six of the Complaint. The City denies the remaining allegations in paragraph five of
the Amended Complaint.
6. Admitted.
7. Defendant, City, admits that it has ownership interest in the motor vehicle referred
to in paragraph seven of the Amended Complaint. The City denies all other allegations not
admitted herein.
8. Denied since this Defendant is without knowledge.
9. The City admits that it is the owner of the subject motor vehicle which was
allegedly operated by Frank Anthony Otello. The City specifically denies that it is responsible
for the alleged negligence of Frank Anthony Otello and denies any allegation not admitted herein.
10. Denied.
ll. Denied since this Defendant is without knowledge.
12. Denied since this Defendant is without knowledge.
13. Denied.
14. Denied.
15. The City admits that on August 22, 2018, that the subject motor vehicle was owned
by the City of Sunrise. The City denies the remaining allegations asserted in paragraph fifteen
of Plaintiffs Amended Complaint and demands strict proof of same.
16. Denied.
17. Denied since this Defendant is without knowledge. The City further denies that
Frank Anthony Otello on August 22, 2018, was in the course and scope of his employment or the
2|PageJean Baptiste v. City of Sunrise
CACE19-026009 (03)
scope of permission with the City of Sunrise to operate the subject motor vehicle.
18. The City specifically denies that Anthony Otello was in the course and scope of his
employment with the City at the time of the subject incident. The City denies the remaining
allegations contained in paragraph eighteen since it is without knowledge. Any allegations not
specifically admitted herein are denied.
19. Denied. The City denies each and every allegation contained in Plaintiff's
Amended Complaint which has not been specifically admitted in this Answer and demands strict
proof of same.
20. The City denies that it was guilty of any acts proximately causing or contributing
to the injuries and damages complained of by Plaintiff and further denies that it is responsible for
any acts allegedly committed by Frank Anthony Otello, while not in the course and scope of his
employment with the City.
AFFIRMATIVE DEFENSES
21. The sole legal cause of any and all damages or injuries sustained by Plaintiff was
due to Plaintiff's own negligence. Therefore, Plaintiff is barred from recovery against the City.
In the alternative, Plaintiff is limited in the extent of his recovery by his own comparative
negligence.
22. Defendant, City, asserts that it is entitled to a credit and/or setoff for any and all
personal injury protection benefits paid and/or payable, as well as any and all benefits, collateral
sources, or other sources or setoffs or recoupments and, therefore, claims its credits, setoffs, and
recoupments accordingly.
3|PageJean Baptiste v. City of Sunrise
CACE19-026009 (03)
23. Any loss or damages sustained by Plaintiff was caused by the unforeseeable
intervening acts of others over whom this Defendant had no control. Therefore, Plaintiff cannot
recover from the City.
24. The damages and injuries complained of by Plaintiff was caused by third parties,
persons, instrumentalities, agencies or forces outside the control of this Defendant. Therefore,
the City is not liable.
25. The City is entitled to avail itself of the provisions of _Fla. Stat. §768.81, as well
as Fabre vs. Maren, 623 So.2d 1182 (Fla. 1993), to apportion fault between any individuals or
entities whose behavior, conduct or medical care proximately caused injury or damages alleged
to have been sustained by the Plaintiff. The City identifies Frank Anthony Otello whose alleged
negligent operation of a motor vehicle caused and/or contributed to cause the subject motor
vehicle accident complained of by Plaintiff. The City reserves the right to identify or
supplement this defense if discovery reveals the identity of other third parties or persons who
may have caused or contributed to Plaintiff's alleged injuries and damages.
26. That the Plaintiff has failed to meet the minimum threshold requirements for suit
(no fault) set forth in the Florida Automobile Reparations Reform Act and Florida Statute
§627.737. ‘Therefore, Plaintiff cannot recover damages in this action.
27. The City further asserts that the limit of its liability, including financial liability, to
Plaintiff is statutorily limited as more fully set forth in Fla. Stat. §768.28.
28. The City asserts the defenses of avoidable consequences and the fact that Plaintiff
has failed to mitigate his damages.
4|PageJean Baptiste v. City of Sunrise
CACE19-026009 (03)
29. Any recovery by Plaintiff must be reduced to the extent of benefits paid or payable
to Plaintiff from collateral sources as more fully specified by Fla. Stat. §627.737(2).
30. The City further alleges that pursuant to the provisions of Fla. Stat. §768.71, et seq.,
the amount of any damages awarded to Plaintiff shall be reduced by the total amount of any
collateral source of indemnity or benefit which is available to Plaintiff.
31. As a further and separate affirmative defense, the City alleges that the provisions
of Fla, Stat.§768.81 et seq., apply to the claims made by Plaintiff against the Defendant, City.
Therefore, the City demands that any damages awarded to Plaintiff be apportioned appropriately
as more fully set forth in Fla. Stat. §768.81 et seq.
32. Any recovery by Plaintiff must be reduced or setoff to the extent of any payment
previously or hereinafter received by Plaintiff from other parties or persons for the payment of
damages or injuries or for the settlement of the cause of action alleged, pursuant to Fla. Stat.
§768.041.
33. That Plaintiff has failed to meet the requirements of Fla. Stat. §627.737 (2) and
therefore, Plaintiff cannot recover damages and tort for pain, suffering, mental anguish and
inconvenience because of bodily injury, sickness or disease. In addition, this Defendant
pursuant to Fla. Stat. §627.737 (2) is exempt from tort liability since it has complied with the
security requirements required by the Florida Statutes.
34. The City asserts that it is a governmental agency in the state of Florida, and as such,
enjoys sovereign immunity for the allegations and claims asserted against it in Plaintiff's
Amended Complaint.
5 |PageJean Baptiste v. City of Sunrise
CACE19-026009 (03)
35. This action is governed by the provisions of Fla. Stat. §627.736 and 627.737(2)
and/or Fla. Stat. §768.76. To the extent that there are any PIP benefits which are paid or payable
as well as any other collateral source benefits paid or payable, such damages are not recoverable
by Plaintiff against this Defendant.
36. That the Plaintiff was himself negligent and/or contributed to his own damages and
injuries and therefore this Defendant asserts that Plaintiff's damages are limited in the extent of
his own intentional actions and/or comparative negligence.
37. At the time and place alleged by the Plaintiff, there was available for use by the
Plaintiff, a fully functional and operational seat belt and/or shoulder harness or safety restraint
system which would have reduced or prevented the damages alleged. As a result of the Plaintiff
knowingly and voluntarily choosing not to utilize or properly utilize the seat belt and/or shoulder
harness or safety restraint system, the Plaintiff suffered injuries or damages and/or his injuries or
damages were increased. There is a causal relationship between injuries allegedly suffered by
the Plaintiff and the Plaintiff's failure to use or to properly utilize an available and fully functional
and operational seat belt and/or shoulder harness or safety restraint system. Therefore, Plaintiff
should be barred from recovery or in the alternative, Plaintiffs damages should be reduced.
38. Defendant, City, denies that it, or anyone from whom it could be held legally
responsible was guilty of any negligence or acts proximately causing or contributing to the
injuries and damages complained of by Plaintiff.
39. The City denies each and every allegation contained in Plaintiffs Amended
Complaint which has not been specifically admitted herein, demands strict proof of same.
6 |PageJean Baptiste v. City of Sunrise
CACE19-026009 (03)
40. The City specifically denies that it can be held liable under the Dangerous
Instrumentality Doctrine as a matter of law. Therefore, Plaintiff's claims against the City should
be dismissed as a matter of law. See Garcia v. City of Hollywood, 948 So.2d 1000 (Fla.4th
DCA 2007); Rabideau v. State of Florida, 409. So.2d 1045 (Fla. 1982).
41. That the City cannot be held responsible for Plaintiffs alleged injuries and
damages, under a theory of vicarious liability pursuant to Florida law. Therefore, Plaintiffs
claims against the City should be dismissed as a matter of law. See Garcia v. City of Hollywood,
948 So.2d 1000 (Fla.4th DCA 2007); Rabideau v. State of Florida, 409 So.2d 1045 (Fla. 1982).
DEMAND FOR JURY TRIAL
42. Defendant, CITY OF SUNRISE, demands a trial by jury on all issues so triable as
a matter of right.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY shat a copy hereof has been served and filed through the Florida
Court E-Filing Portal this A" day of April 2020 to: Adam E. Miller, Esq., Miller Lay Group,
PA, litigation@millerlaw. legal é AL
E. BRUCE JOHNSO’
FLA. BAR NO. 262137
Attorney for City ef Sunrise
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, P.A.
2455 E. Sunrise Blvd., Suite 1000
Fort Lauderdale, FL 33304
954-463-0100-Tel./954-463-2444-Fax
Service emails:
Johnson@jambg.com / Young@jambg.com
7|Page
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Filing # 106409973 E-Filed 04/17/2020 04:52:24 PM IN THE CIRCUIT COURT OF THE 1774 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Case No. CACE19-026009 (03) CHANDLER JEAN BAPTISTE, Plaintiff, Vv. CITY OF SUNRISE, Defendant. : DEFENDANT, CITY OF SUNRISE’S, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFE’S AMENDED COMPLAINT. COMES NOW, Defendant, CITY OF SUNRISE (“City”), by and through its undersigned attorneys and pursuant to the Florida Rules of Civil Procedure, files its Answer and Affirmative Defenses to Plaintiff's Amended Complaint and states as follows: 1. The City admits that Plaintiff has alleged that this is an action for damages in excess of $30,000. However, the City denies that Plaintiff is entitled to any damages against the City and demands strict proof of same. 2. Denied since this Defendant is without knowledge. 3. Denied since this Defendant is without knowledge. 4, The City admits that it is a municipality in the state of Florida and a governmental agency, conducting business in Broward County, Florida. The City denies any allegations not admitted herein. 5, The City admits that it is a municipality and a governmental agency in the state of Florida. Defendant, City, also admits that it is the owner of the motor vehicle referred to in *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/17/2020 04:52:24 PM.****Jean Baptiste v. City of Sunrise CACE19-026009 (03) paragraph six of the Complaint. The City denies the remaining allegations in paragraph five of the Amended Complaint. 6. Admitted. 7. Defendant, City, admits that it has ownership interest in the motor vehicle referred to in paragraph seven of the Amended Complaint. The City denies all other allegations not admitted herein. 8. Denied since this Defendant is without knowledge. 9. The City admits that it is the owner of the subject motor vehicle which was allegedly operated by Frank Anthony Otello. The City specifically denies that it is responsible for the alleged negligence of Frank Anthony Otello and denies any allegation not admitted herein. 10. Denied. ll. Denied since this Defendant is without knowledge. 12. Denied since this Defendant is without knowledge. 13. Denied. 14. Denied. 15. The City admits that on August 22, 2018, that the subject motor vehicle was owned by the City of Sunrise. The City denies the remaining allegations asserted in paragraph fifteen of Plaintiffs Amended Complaint and demands strict proof of same. 16. Denied. 17. Denied since this Defendant is without knowledge. The City further denies that Frank Anthony Otello on August 22, 2018, was in the course and scope of his employment or the 2|PageJean Baptiste v. City of Sunrise CACE19-026009 (03) scope of permission with the City of Sunrise to operate the subject motor vehicle. 18. The City specifically denies that Anthony Otello was in the course and scope of his employment with the City at the time of the subject incident. The City denies the remaining allegations contained in paragraph eighteen since it is without knowledge. Any allegations not specifically admitted herein are denied. 19. Denied. The City denies each and every allegation contained in Plaintiff's Amended Complaint which has not been specifically admitted in this Answer and demands strict proof of same. 20. The City denies that it was guilty of any acts proximately causing or contributing to the injuries and damages complained of by Plaintiff and further denies that it is responsible for any acts allegedly committed by Frank Anthony Otello, while not in the course and scope of his employment with the City. AFFIRMATIVE DEFENSES 21. The sole legal cause of any and all damages or injuries sustained by Plaintiff was due to Plaintiff's own negligence. Therefore, Plaintiff is barred from recovery against the City. In the alternative, Plaintiff is limited in the extent of his recovery by his own comparative negligence. 22. Defendant, City, asserts that it is entitled to a credit and/or setoff for any and all personal injury protection benefits paid and/or payable, as well as any and all benefits, collateral sources, or other sources or setoffs or recoupments and, therefore, claims its credits, setoffs, and recoupments accordingly. 3|PageJean Baptiste v. City of Sunrise CACE19-026009 (03) 23. Any loss or damages sustained by Plaintiff was caused by the unforeseeable intervening acts of others over whom this Defendant had no control. Therefore, Plaintiff cannot recover from the City. 24. The damages and injuries complained of by Plaintiff was caused by third parties, persons, instrumentalities, agencies or forces outside the control of this Defendant. Therefore, the City is not liable. 25. The City is entitled to avail itself of the provisions of _Fla. Stat. §768.81, as well as Fabre vs. Maren, 623 So.2d 1182 (Fla. 1993), to apportion fault between any individuals or entities whose behavior, conduct or medical care proximately caused injury or damages alleged to have been sustained by the Plaintiff. The City identifies Frank Anthony Otello whose alleged negligent operation of a motor vehicle caused and/or contributed to cause the subject motor vehicle accident complained of by Plaintiff. The City reserves the right to identify or supplement this defense if discovery reveals the identity of other third parties or persons who may have caused or contributed to Plaintiff's alleged injuries and damages. 26. That the Plaintiff has failed to meet the minimum threshold requirements for suit (no fault) set forth in the Florida Automobile Reparations Reform Act and Florida Statute §627.737. ‘Therefore, Plaintiff cannot recover damages in this action. 27. The City further asserts that the limit of its liability, including financial liability, to Plaintiff is statutorily limited as more fully set forth in Fla. Stat. §768.28. 28. The City asserts the defenses of avoidable consequences and the fact that Plaintiff has failed to mitigate his damages. 4|PageJean Baptiste v. City of Sunrise CACE19-026009 (03) 29. Any recovery by Plaintiff must be reduced to the extent of benefits paid or payable to Plaintiff from collateral sources as more fully specified by Fla. Stat. §627.737(2). 30. The City further alleges that pursuant to the provisions of Fla. Stat. §768.71, et seq., the amount of any damages awarded to Plaintiff shall be reduced by the total amount of any collateral source of indemnity or benefit which is available to Plaintiff. 31. As a further and separate affirmative defense, the City alleges that the provisions of Fla, Stat.§768.81 et seq., apply to the claims made by Plaintiff against the Defendant, City. Therefore, the City demands that any damages awarded to Plaintiff be apportioned appropriately as more fully set forth in Fla. Stat. §768.81 et seq. 32. Any recovery by Plaintiff must be reduced or setoff to the extent of any payment previously or hereinafter received by Plaintiff from other parties or persons for the payment of damages or injuries or for the settlement of the cause of action alleged, pursuant to Fla. Stat. §768.041. 33. That Plaintiff has failed to meet the requirements of Fla. Stat. §627.737 (2) and therefore, Plaintiff cannot recover damages and tort for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease. In addition, this Defendant pursuant to Fla. Stat. §627.737 (2) is exempt from tort liability since it has complied with the security requirements required by the Florida Statutes. 34. The City asserts that it is a governmental agency in the state of Florida, and as such, enjoys sovereign immunity for the allegations and claims asserted against it in Plaintiff's Amended Complaint. 5 |PageJean Baptiste v. City of Sunrise CACE19-026009 (03) 35. This action is governed by the provisions of Fla. Stat. §627.736 and 627.737(2) and/or Fla. Stat. §768.76. To the extent that there are any PIP benefits which are paid or payable as well as any other collateral source benefits paid or payable, such damages are not recoverable by Plaintiff against this Defendant. 36. That the Plaintiff was himself negligent and/or contributed to his own damages and injuries and therefore this Defendant asserts that Plaintiff's damages are limited in the extent of his own intentional actions and/or comparative negligence. 37. At the time and place alleged by the Plaintiff, there was available for use by the Plaintiff, a fully functional and operational seat belt and/or shoulder harness or safety restraint system which would have reduced or prevented the damages alleged. As a result of the Plaintiff knowingly and voluntarily choosing not to utilize or properly utilize the seat belt and/or shoulder harness or safety restraint system, the Plaintiff suffered injuries or damages and/or his injuries or damages were increased. There is a causal relationship between injuries allegedly suffered by the Plaintiff and the Plaintiff's failure to use or to properly utilize an available and fully functional and operational seat belt and/or shoulder harness or safety restraint system. Therefore, Plaintiff should be barred from recovery or in the alternative, Plaintiffs damages should be reduced. 38. Defendant, City, denies that it, or anyone from whom it could be held legally responsible was guilty of any negligence or acts proximately causing or contributing to the injuries and damages complained of by Plaintiff. 39. The City denies each and every allegation contained in Plaintiffs Amended Complaint which has not been specifically admitted herein, demands strict proof of same. 6 |PageJean Baptiste v. City of Sunrise CACE19-026009 (03) 40. The City specifically denies that it can be held liable under the Dangerous Instrumentality Doctrine as a matter of law. Therefore, Plaintiff's claims against the City should be dismissed as a matter of law. See Garcia v. City of Hollywood, 948 So.2d 1000 (Fla.4th DCA 2007); Rabideau v. State of Florida, 409. So.2d 1045 (Fla. 1982). 41. That the City cannot be held responsible for Plaintiffs alleged injuries and damages, under a theory of vicarious liability pursuant to Florida law. Therefore, Plaintiffs claims against the City should be dismissed as a matter of law. See Garcia v. City of Hollywood, 948 So.2d 1000 (Fla.4th DCA 2007); Rabideau v. State of Florida, 409 So.2d 1045 (Fla. 1982). DEMAND FOR JURY TRIAL 42. Defendant, CITY OF SUNRISE, demands a trial by jury on all issues so triable as a matter of right. CERTIFICATE OF SERVICE I HEREBY CERTIFY shat a copy hereof has been served and filed through the Florida Court E-Filing Portal this A" day of April 2020 to: Adam E. Miller, Esq., Miller Lay Group, PA, litigation@millerlaw. legal é AL E. BRUCE JOHNSO’ FLA. BAR NO. 262137 Attorney for City ef Sunrise JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. 2455 E. Sunrise Blvd., Suite 1000 Fort Lauderdale, FL 33304 954-463-0100-Tel./954-463-2444-Fax Service emails: Johnson@jambg.com / Young@jambg.com 7|Page