THE FLORIDA SENATE
SPECIAL MASTER ON CLAIM BILLS
Location
409 The Capitol
Mailing Address
404 South Monroe Street
Tallahassee, Florida 32399-1100
(850) 487-5229
DATE COMM ACTION
3/16/23 SM Favorable
3/20/23 JU Favorable
3/27/23 CA Pre-meeting
March 16, 2023
The Honorable Kathleen Passidomo
President, The Florida Senate
Suite 409, The Capitol
Tallahassee, Florida 32399-1100
Re: SB 10 – Senator Gruters
HB 6019 – Representative Buchanan
Relief of Kristen A. Stewart by Sarasota County
SPECIAL MASTER’S FINAL REPORT
THIS IS A SETTLED CLAIM BILL FOR $5,750,000,
SUPPORTED BY SARASOT A COUNTY. KRISTEN A.
STEWART SEEKS DAMAGES FROM SARASOTA COUNTY
FOR PERSONAL INJURIES AND DAMAGES SUSTAINE D
IN A MOTOR VEHICLE ACCIDENT RESULTING FROM THE
NEGLIGENT OPERATION OF A SARASOTA COUNTY
VEHICLE.
FINDINGS OF FACT: The Accident
On May 13, 2020, at around 1:30 p.m., Claimant, Ms. Kristin
A. Stewart was on her regular daily run traveling westbound
on the sidewalk adjacent to Bahia Vista Drive in Sarasota
County.
1
A Sarasota County utility vehicle operated by a
county employee of 33 years,
2
Mr. Tsuguo Kanayama,
struck her from behind, ran her over, and dragged her
beneath the vehicle for a distance of approximately 60 to 65
1
The Claimant was a second grade teacher at Southside Elementary School in Sarasota,
Florida. During the time of accident, because of the Covid-19 pandemic, in-person classes
were suspended and the claimant was teaching via remote technology. She had a mid-day
break from teaching during this time and would run eight to ten miles, shower, and then
resume teaching.
2
Kanayama Deposition, Phipps Reporting, May 25, 2021, 18:8-13. SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 2
feet.
3
The vehicle came to rest with the right front tire atop
Ms. Stewart, who was awake and conscious throughout the
incident. Ms. Stewart requested Mr. Kanayama back the
utility vehicle off her body. Mr. Kanayama backed off of Ms.
Stewart and then dialed 911.
Diagram of Accident by Florida Highway Patrol
Injuries
4
Ms. Stewart sustained many internal and external injuries.
She was transported from the scene to the emergency
department as a level 1 trauma patient and initially presented
with:
Hypotension;
Multiple large soft tissue defects to her abdomen and
bilateral hips;
Puncture wound to her left elbow; and
Multiple areas of road rash.
After examination it was determined that in addition to the
severe external injuries, Ms. Stewart had sustained multiple
life-threatening internal injuries, to include:
Multiple pelvic fractures;
Multiple rib fractures;
Thoracic and lumbar transverse process fractures;
Liver laceration; and
3
Florida Traffic Crash Report #88323999-03, May 13, 2020, 2. (Claimant’s Exhibit #4).
4
Sarasota Memorial Hospital, Trauma Discharge Summary, May 13, 2020, 1-2. SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 3
Kidney bruising.
The injuries were further detailed in the Settlement Agreement
between Ms. Stewart and Sarasota County as “tearing the
skin off her torso, both hips, both arms, and tearing the hair
out of the top of her scalp. The weight of the Sarasota County
truck crushed her pelvis with a grade 3 open book pelvis
fracture, lacerated her liver nearly in half with a grade 4
laceration, injured her lungs, kidneys, and colon, in addition to
breaking five of [her] ribs and her vertebral body transverse
processes . . . [she] did not lose consciousness at any time
before, during or after being run over and dragged . . . and
was awake, aware and conscious of the injuries inflicted on
her.”
5
Ms. Stewart had a 15-day hospital admission followed by
months of home health care, wound care, physical therapy,
occupational therapy, surgical debridements, surgical
removal of skin grafts, surgical harvesting of skin for grafting
onto her injuries, wound revision surgery, and psychological
treatment for post-traumatic stress disorder and anxiety.
6
Settlement
Ms. Stewart and Sarasota County have entered into a
settlement agreement for a total of $5,950,000. Claimant has
received $200,000 from Sarasota County and seeks the
remaining $5,750,000.
Sarasota County supports the claim bill and reports that
$1,000,000 of the funds will be paid through a general liability
insurance policy and the remaining $4,750,00 from their self-
funded risk pool, and that the relief will not affect the
operations of the County.
CLAIM BILL HEARING:
On January 20, 2023, the House and Senate special
masters held a half-day hearing in the matter of SB 10
(2023), Relief of Kristen A. Stewart by Sarasota County.
Both parties stipulated to all exhibits submitted into evidence
by the Claimant. Respondent’s attorney made it clear that
Sarasota was in full support of the claim bill and would not be
presenting any evidence counter to the Claimant or settlement
5
Settlement Agreement, pg. 1 paragraph A.
6
Settlement Agreement, pg. 1 paragraph B. SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 4
agreement. Both parties cooperated fully with the House and
Senate and responded to all requests for information.
Claimant’s Case-in-Chief
Claimant’s attorney presented a narrative recitation of the
facts as stipulated by the parties detailing Ms. Stewart’s life
before the accident, the accident, the details of Ms. Stewart’s
life after the accident, injuries, recovery, and the related
elements of a negligence claim
The Claimant, Ms. Stewart, testified as to the day of the
accident, her quality of life before and after the accident, her
injuries and ongoing recovery.
Respondent’s Case-in-Chief
Sarasota County had previously admitted liability in a
settlement agreement,
7
waived its right to present a case-in-
chief during the claim bill hearing, and reiterated its full
support of the claim bill. The Respondent did not present or
contest any evidence, theories, or arguments
CONCLUSIONS OF LAW:
Under the legal doctrine of respondeat superior, Sarasota
County is responsible for the wrongful acts of its employees
when the acts are committed within the scope of their
employment.
8
Because Mr. Kanayama was operating a
county-owned vehicle in the course and scope of his
employment at the time of the accident, the County is
responsible for any wrongful acts, including negligence,
committed by Mr. Kanayama.
Elements of Negligence
When a plaintiff seeks to recover financial damages in a
negligence action, she must prove that the injury was
caused by the defendant’s negligence. Negligence is defined
as the failure to use reasonable care. It is the care that a
reasonably careful person would use under like
circumstances.
9
7
Settlement Agreement between Kristen A. Stewart and Sarasota County, signed July 20, 2022, pg. 2 para. G.
8
Cintron v. St. Joseph’s Hospital, Inc., 112 So. 3d 685, 686 (Fla. 2d DCA 2013) (employers are “liable for the
negligence of their employees for wrongful acts committed within the course and scope of their employment.”).
9
Fla. Std. Jury Instr. (Civ.) 401.4, Negligence. SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 5
The plaintiff bears the burden of proving, by the greater
weight of the evidence, that the defendant’s action was a
breach of the duty that the defendant owed to the plaintiff.
The “greater weight of the evidence” burden of proof means
the more persuasive and convincing force and effect of the
entire evidence in the case.
10
Some explain the “greater
weight of the evidence” concept to mean that, if each party’s
evidence is placed on a balance scale, the side that dips
down, even by the smallest amount, has met the burden of
proof by the greater weight of the evidence.
To establish liability, a Claimant must prove these elements,
by the greater weight of the evidence:
(1) Duty: The County owed a duty, or obligation, of care to
Claimant;
(2) Breach: The County breached that duty by not
conforming to the standard required;
(3) Causation: The breach of the duty was the legal cause of
Claimant’s injury; and
(4) Damages: The Claimant suffered actual harm or loss.
In this case, the County’s liability depends on whether the
County breached its duty of care to Claimant and whether that
breach caused her damages. Or, the issue is whether the
County employee negligently operated the utility vehicle and
whether that negligent operation caused Claimant’s resulting
physical injuries.
Duty
Mr. Kanayama, operating a county-owned vehicle in the
course and scope of his employment with Sarasota County,
was responsible for exercising a duty of reasonable care to all
others while driving.
Florida law requires that a driver operate a vehicle in a careful
and prudent manner, having regard for traffic and all other
attendant circumstances, so as to not endanger the life, limb,
or property of any person.
11
10
Fla. Std. Jury Instr. (Civ.) 401.3, Greater Weight of the Evidence.
11
Section 316.1925, F.S.; Gowdy v. Bell, 993 So. 2d 585, 586 (Fla. 1
st
DCA 2008). SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 6
Florida law also requires that a driver shall not turn a vehicle
so as to proceed in the opposite direction upon any street
unless such movement can be made in safety and without
interfering with other traffic.
12
Furthermore, Florida law defines “traffic” as “[p]edestrians . . .
and vehicles . . . while using any street or highway for
purposes of travel.”
13
There was no evidence presented by the Respondent that
challenged or countered the facts as presented above.
Breach
Based on the stipulated facts and exhibits presented by the
Claimant, it is evident that Mr. Kanayama violated ss.
316.1515 and 316.1925, F.S., as well as the required
standard of reasonable care owed Ms. Stewart and all others
when, during his operation of a county-owned utility vehicle,
he struck, ran over, and dragged Ms. Stewart.
Mr. Kanayama’s Breach
1) Attempting a U-turn with insufficient space and time and
driving into the marked pedestrian crosswalk.
Mr. Kanayama attempted to execute a U-turn on Bahia
Vista Street in an area that was too small to
accommodate the large turning radius of the county
utility vehicle he was operating and attempted that U-turn
quicker than was reasonable. Mr. Kanayama was cited
for careless driving at the scene
14
and pled “admit/guilty”
to the careless driving with serious bodily injury,
adjudication withheld, resulting in the suspension of his
driver’s license for three months and various fines.
15
Mr. Kanayama admits to knowing what a turning radius
is and that he knew before executing the U-turn that the
utility vehicle’s turning radius was too large to make the
U-turn without driving into the pedestrian walkway.
16
12
Section 316.1515, F.S.
13
Section 316.003(97), F.S.
14
See supra note 3, 2; Florida Uniform Traffic Citation, #ABSWI1E.
15
Civil Hearing Court Appearance Record, County Court in and for Sarasota County, Florida, Case 2020-TR-
014331-NC, August 6, 2020.
16
Kanayama Depo., 30:16-25 and 31:1-13. SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 7
Florida Highway Patrol Trooper Cantwell notes that Mr.
Kanayama stated “he observed eastbound traffic
approaching and made the U-turn in a fast manner.”
17
Given the facts in record, it is easy to imagine how Mr.
Kanyama determined that he needed to perform a U-turn
and would need to cross into the marked crosswalk due
to the turning radius of the utility vehicle. Then, noting the
speed and distance of oncoming traffic, to quickly
attempt to execute a U-turn knowingly entering the
marked crosswalk before oncoming traffic was upon him.
He breached his duty of care when he attempted to
execute this U-turn with insufficient space and time and
failed to yield to Ms. Stewart crossing in the marked
crosswalk.
There was no evidence presented by the Respondent
that challenged or countered the facts as presented
above.
2) Failing to see Ms. Stewart and striking her within a
pedestrian zone.
The conditions at the time of the accident are recorded
as daylight, clear, and dry.
18
The utility vehicle was a truck Mr. Kanayama drove every
day, it was in good working order, and nothing was noted
as wrong or out of the ordinary with the vehicle.
19
Mr. Kanayama stated that he was not distracted and his
vision was not obstructed.
20
Furthermore, Mr. Kanayama
admitted that he did not see Ms. Stewart in the marked
crosswalk.
21
During the U-turn, he reports that he felt a shock and
thought it was the vehicle going over the concrete gutter
and continued to execute the U-turn to get the rear part
of the vehicle out of oncoming traffic approaching on
17
See supra note 3.
18
See supra note 3, 1.
19
Kanayama Deop., 26:8-15
20
Id.
21
Kanayama Depo., 33:6-18. SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 8
Bahia Vista St.
22
Mr. Kanayama only realized he had
struck, run over, and dragged Ms. Stewart after he heard
a sound, stopped the truck to investigate, and saw Ms.
Stewart under the front of the utility vehicle.
23
Mr. Kanayama admitted in his deposition that he simply did
not see Ms. Stewart in the marked crosswalk before, during,
or immediately after his collision with her. He breached his
duty of reasonable care when he attempted a U-turn that he
knew would enter a marked pedestrian crosswalk and failed
to sufficiently scan the area he was entering to see if anyone
was in the crosswalk before driving his vehicle through.
There was no evidence presented by the Respondent that
challenged or countered the facts as presented above.
Causation
Negligence is “a legal cause of loss, injury or damage if it
directly and in natural and continuous sequence produces or
contributes substantially to producing such loss, injury or
damage, so that it can reasonably be said that, but for the
negligence, the loss, injury or damage would not have
occurred.”
24
Comparative Negligence
Comparative negligence is the legal theory that a
defendant may diminish his or her responsibility to an
injured plaintiff by demonstrating that another person,
sometimes the plaintiff and sometimes another defendant
or even an unnamed party, was also negligent and that
negligence contributed to the plaintiff’s injuries. The goal
22
Kanayama Depo., 35: 5-11
23
Kanayama Depo., 35:12-23.
24
Florida Civil Jury Instructions, 401.12(a) - Legal Cause, Generally.
Area of Collision
Bahia Vista Street
Final Rest SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 9
of proving a successful comparative negligence defense is
to hold other people responsible for the injuries they cause
to a plaintiff. By apportioning damages among all who are
at fault, it will ultimately reduce the amount of damages
owed by a defendant.
While Sarasota County did raise comparative negligence as
an affirmative defense in the initial answer to Ms. Stewart’s
complaint,
25
there has been no evidence presented that would
attribute any negligence to Ms. Stewart or any other unnamed
third party prior to the eventual settlement.
Based on the filings of the parties, the testimony at the claim
hearing, and a thorough review of all relevant materials, I find
that the greater weight of evidence demonstrates that Mr.
Kanayama, as an agent of the County, had a duty of
reasonable care to the public, failed to exercise that
reasonable care, and that breach was the legal or proximate
cause of the accident and responsible for the injuries that Ms.
Stewart sustained. I also find that there is no comparative
negligence by Ms. Stewart or any other unnamed third party.
Damages
As a result of the accident, doctors have indicated both
physical and mental injuries that will require lifelong care and
treatment. A plaintiff’s damages are computed by adding
economic and non-economic damages together.
Economic Damages
The claimant’s attorney presented voluminous medical bills,
statements, financial data, and economic reports that project
Ms. Stewart’s total damages to be $5,950,000.
The Economic Loss Analysis presented by Ms. Stewart states
that she has a remaining life expectancy of 44.81 years with
work-life expectancy of 29.41 years.
26
The analysis calculates
her pre-incident earning capacity as $61,274.54 per year and
her post-incident earning capacity as $0. This post-incident
earning capacity is based on the reports of Dr. Craig H.
Lichtblau, that in his “medical opinion as a Board Certified
25
Sarasota County’s Answer, filed in the Circuit Court of the Twelfth Judicial Circuit in and for Sarasota County,
Florida on January 12, 2021, Second Affirmative Defense, 3.
26
Economic Loss Analysis in the Matter of Stewart, Kristin A. vs. Sarasota County, Raffa Consulting Economists,
Inc., May 6, 2022, 2
nd
Revised Report, 2. SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 10
Physiatrist that this patient would not be able to maintain
gainful employment in the competitive open labor market or in
a sheltered environment with a benevolent employer
secondary to acute, intermittent, exacerbations of chronic
pain.”
27
Economic Damages
Past Medical Care $917,251.49
28
Future Care Needs $388,538.00
29
Past Lost Earnings and Future Earning Capacity $1,927,498.00
30
Cost of future health/dental/vision insurance $156,568.00
31
Total $3,389,855.49
Non-Economic Damages
At the special master hearing, the Claimant’s attorney did not
provide evidence of a specific dollar amount for this category.
However, it should be noted that the Florida Standard Jury
Instructions state that there is no exact standard for
measuring these damages. The jury instructions state that the
amount should be a “fair and just” amount in light of the
evidence presented to the jury.
32
Based on the settlement
agreement and the total of economic damages, the remaining
difference of the settled amount is $2,560,144.51
Conclusion
Economic Damages: $3,389,855.49
Non-Economic Damages: $2,560,144.51
The settled claim amount of $5,950,00, to be paid by the
County, seems reasonable based on the evidence presented.
There was no economic evidence presented by the
Respondent to challenge or counter the reports and evidence
submitted by the Claimant.
.
ATTORNEY FEES: Section 768.28, Florida Statutes, limits the claimant’s attorney
fees to 25 percent of the claimant’s total recovery reached by
any judgment or settlement in a sovereign immunity claim.
The Claimant’s attorney has acknowledged this limitation and
27
Craig H. Lichtblau, M.D., P.A., Updated Summary Report for Kristen A. Stewart, February 15, 2022, 9.
28
Settlement Agreement, 1 para. B.
29
Economic Loss Analysis, Table 3, Option I – Most Probable Case Scenario, Present Value, 10.
30
Economic Loss Analysis, Table 1, Present Value Analysis of the Loss of Earning Capacity, 7.
31
Economic Loss Analysis, Table 2, Present Value Analysis of Cost to Maintain Insurance, 8.
32
501.2a, Personal Injury and Property Damages: Elements. SPECIAL MASTER’S FINAL REPORT – SB 10
March 16, 2023
Page 11
verified in writing that nothing in excess of 25 percent of the
gross recovery will be withheld or paid as attorney and
lobbyist fees.
RECOMMENDATIONS: Based upon the foregoing, I recommend that SB 10 be
reported FAVORABLY.
Respectfully submitted,
Tyler C. Tuszynski
Senate Special Master
cc: Secretary of the Senate