STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
Special Master’s Final Report
The Honorable Daniel Perez
Speaker, The Florida House of Representatives
Suite 420, The Capitol
Tallahassee, Florida 32399-1300
Re: HB 6509 - Representative Hart
Relief/Patricia Ermini/Lee County Sheriff's Office
SUMMARY
This is a contested excess judgment claim for $626,769.93 based on a $1,000,000 jury verdict
awarding monetary damages to Patricia Ermini (“Ermini”) for the injuries and other damages
she sustained when Lee County Sheriff’s Office (“LCSO”) deputies entered her home to conduct
a welfare check at the request of Ermini’s daughter on the night of March 23, 2012, resulting in
an LCSO deputy shooting the then-71-year-old Ermini multiple times. At trial, the jury found
Ermini 25 percent at fault for her own harm, with the LCSO 75 percent at fault, and reduced the
damages awarded to Ermini accordingly; the LCSO has since paid the $200,000 authorized
under Florida’s sovereign immunity law.
Ermini alleges that the Lee County Sheriff
1
was negligent through the actions of his deputies
taken during the welfare check. However, the LCSO alleges that Ermini was herself negligent
and therefore caused her own harm. For the reasons set out below, the undersigned Special
Master recommends that HB 6509 be reported FAVORABLY.
FINDINGS OF FACT
The Incident
Welfare Check Request
On the evening of March 23, 2012, then-71-year-old mother of two Patricia Ermini (“Ermini”)
lived alone in a home she owned in Fort Myers, Florida.
2
On that date, Ermini, who was in the
process of a contentious, lengthy, and expensive divorce, consumed wine in her home and,
some time thereafter, spoke on the telephone with her daughter, Maine resident Robin LaCasse
(“LaCasse”). During the course of this telephone call, Ermini, upset over recent developments in
her divorce proceeding, cried “hysterically” (a behavior that was unusual for her, according to
LaCasse) and indicated to LaCasse that she “couldn’t take it anymore.” When Ermini became
so upset that her crying interfered with her ability to speak, LaCasse asked Ermini to hang up,
splash water on her face to calm down, and call her back.
1
This is not a claim against the Sheriff personally; rather, it is a claim against the Office of the Sheriff.
2
Fort Myers is located in Lee County, Florida. The record indicates that Ermini had a daughter and a son, both of
whom resided in Maine on March 23, 2012. STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
After a brief time period, Ermini attempted to call LaCasse as requested; however, LaCasse
was in a shop at that particular moment and consequently missed Ermini’s call. Ermini then
decided that, as she was very tired, she would go to sleep in her home’s primary bedroom.
Over the course of the next hour, LaCasse repeatedly attempted to reach Ermini on her cell
phone.
3
When Ermini failed to answer or return any of these calls, LaCasse grew increasingly
concerned that Ermini may have attempted or might commit suicide.
4
In light of this concern,
around 8:40 p.m., LaCasse called the Lee County Sheriff’s Office (“LCSO”) and requested that
the LCSO send deputies to Ermini’s home to conduct a welfare check. During the course of this
phone call, LaCasse relayed:
Ermini’s name and age;
The fact that Ermini lived alone;
The fact that LaCasse feared for Ermini’s life, along with the basis for her fear;
The fact that Ermini had a gun for self-protection; and
The possibility that Ermini had consumed alcohol.
5
Law Enforcement Response
An LCSO dispatch operator relayed LaCasse’s request for a welfare check over the LCSO radio
system and conveyed the information relayed by LaCasse, including Ermini’s name and age;
the fact that Ermini had a gun; and the fact that Ermini might have consumed alcohol. LCSO
deputy Charlene Palmese (“Palmese”)
6
responded to the call, informing the dispatch operator
that she was en route to Ermini’s home. LCSO deputies Richard Lisenbee (“Lisenbee”) and
Robert Hamer (“Hamer”) also responded to the call and proceeded towards Ermini’s home to
assist Palmese.
7
Lisenbee, the first deputy to arrive at Ermini’s home, testified that he parked his patrol vehicle
down the road in a position that was likely not visible from the home.
8
According to his
testimony, he then approached the home, which he described as dark with no visible interior or
exterior lights illuminated, and took a quick look around the home’s exterior. Seeing nothing, he
opened the screen door to the front porch and propped it open, then pounded on the front door,
calling out “Sherriff’s Office.” Getting no response, Lisenbee tried the front door handle, which
he found unlocked, and proceeded to open the door, again calling out “Sheriff’s Office,” and
asking “Anyone here? Anyone home?”, with no response. He then left the front door standing
open and waited outside for backup.
Palmese arrived at Ermini’s home shortly thereafter and, according to her testimony, parked her
patrol vehicle down the road, as Lisenbee did, where it was likely not visible from the home. She
then approached the home and, upon seeing the “wide open” front door, notified dispatch of this
fact over the radio and consulted with Lisenbee about the best course of action; both deputies
agreed that it was best they wait for backup before entering the home. However, Palmese
testified that, although she initially believed that Lisenbee had found the door wide open upon
his arrival, Lisenbee later told her that is was he who had opened the door, and left it open.
Hamer, the last deputy to arrive at Ermini’s home, testified that he, like Lisenbee and Palmese,
parked his patrol vehicle on the street in a position that was likely not visible from Ermini’s
3
Ermini’s testimony suggests that she did not have a land line telephone, but that she did have two cell phones, one
she had purchased for herself and another her daughter had recently sent her. Unfortunately, the phone calls
LaCasse placed to the cell phone Ermini had purchased did not go through. Further, the ringer on the cell phone
LaCasse sent Ermini had been switched to “silent,” and Ermini did not know how to turn the volume on; thus, she did
not receive any auditory alerts when this cell phone received an incoming call. In any event, Ermini testified that she
left both cell phones in the kitchen before heading to bed.
4
The record indicates that Ermini had a history of depression but did not have a history of suicidal ideation. Ermini
testified at trial that when she told LaCasse she “couldn’t take it anymore,” she was referring to her protracted divorce
proceedings and was in no way indicating that she intended to take her own life or otherwise harm herself.
5
According to LaCasse’s testimony, Ermini denied having consumed any alcohol while on the phone with LaCasse,
but LaCasse suspected she might have consumed alcohol because of how upset Ermini was. Ermini later
acknowledged she had consumed wine at some point before her phone call to LaCasse.
6
According to the record, on March 23 2012, the LCSO employed Palmese as a road patrol deputy.
7
According to the record, on March 23, 2012, the LCSO employed Lisenbee and Hamer as road patrol deputies.
8
A bank of trees largely shielded Ermini’s home from the roadway. STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
home. He then approached the house to confer with Lisenbee and Palmese, in the mistaken
belief that the front door had been initially found wide open by the officers, as he had heard
Palmese’s statement to that effect over the radio and neither Lisenbee nor Palmese corrected
his false impression. Hamer subsequently returned to his patrol vehicle to retrieve his AR-15
rifle, which was equipped with a flashlight and a sighting device that enabled him to more easily
find his target.
After Hamer returned to the house, the testimony from the deputies suggests that at least
Lisenbee called out through the open front door, announcing “Sheriff’s Office.”
9
The deputies
then entered the home, with guns drawn, and maneuvered their way through in silence.
10
Though all three deputies were wearing a dark green LCSO uniform and duty belt, along with
visible badges and other insignia, the interior of the home was dark, causing the deputies to
illuminate flashlights to increase their field of visibility; however, the deputies chose not to turn
on any interior lights, apparently so that they would not make themselves visible to anyone in
the home, lest they become targets.
In any event, shortly after entering through the front door, the deputies reached the home’s
primary bedroom, located directly off of the living room and marked by a set of closed French
doors. During her deposition, and again at the trial held in this matter, LCSO Captain Kathryn
Rairden (“Rairden”)
11
testified that, although there is no specific protocol for conducting a
welfare check, in a situation like the one presented to the deputies (that is, where the deputies
know a person is potentially armed with a gun and might be behind a closed door), she would
have secured the room, preventing any deputies from standing in front of the doorway or on the
other side of the drywall; she would then have had the deputies “form up somewhere” safe and
start trying to establish communication with the potentially-armed person in order to get such
person to emerge from the room unarmed.
Unfortunately, the deputies did not follow these procedures. Instead, Lisenbee threw open the
closed right-side door to Ermini’s bedroom and peered inside without first attempting to
establish communication with Ermini. Further, he did this when Hamer was positioned behind
him in the living room, and Palmese was behind him near the adjacent kitchen; in other words,
both Hamer and Palmese were positioned on the other side of the drywall and in view of the
open door. Thus, in throwing open the bedroom door as he did, Lisenbee placed himself,
Hamer, and Palmese in the potential line of fire of any armed person waiting within.
According to her testimony, Ermini first became aware that there were strangers in her home
when she awoke to a man throwing her bedroom door open, shining a flashlight into the room,
and saying “she’s in here.” She also heard a female’s voice but couldn’t make out what the
female said. Ermini testified that she could not see anything, as the light from the flashlight was
shining directly in her eyes, and that she was immediately terrified, not knowing who was in her
home, or for what purpose.
Lisenbee testified that he opened the right side of the bedroom door to find Ermini seemingly
asleep on her bed, clothed only in undergarments; he then proceeded to loudly announce
“Sheriff’s Office,” and he may have also said something to the effect of “we’re here to help.”
12
The record is unclear as to exactly what happened next, but the parties generally agree that
Ermini picked up a gun and moved quickly from her bed to behind the partially-open bedroom
door; Ermini testified that she moved to the door in an attempt to ascertain who was in her
home, as she could not see them. The parties also generally agree that Ermini spoke to the
9
According to their respective testimonies, Palmese did not recall anyone other than Lisenbee announcing their
presence, but Hamer was unsure as to whether or not he or Palmese had also done so.
10
The record indicates that each deputy carried an LCSO-issued Glock handgun. However, Hamer had his personal,
LCSO-approved AR-15 drawn as he moved through the house. The record also indicates that the home was found in
a state of disarray; Ermini later testified that this was due to her lax housekeeping skills and not anything sinister.
11
Rairden was the Captain assigned to LCSO’s South District, the district to which Hamer, Lisenbee, and Palmese
were also assigned on March 23, 2012.
12
It is unclear from the record precisely what Lisenbee said, as he couldn’t recall specifically and the testimony of the
deputies, and of Ms. Ermini, differ as to what his specific statement might have been. However, all three deputies
remember him loudly announcing “Sheriff’s Office.” STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
deputies at this point, although exactly what she said is in dispute; Ermini testified that she
warned the deputies that she had a gun and demanded that they leave her home, while the
deputies testified that Ermini warned them about the gun and threatened to shoot them.
Whatever Ermini’s exact statement was, Lisenbee and Palmese testified that they immediately
began backing up in response thereto; however, Hamer testified that he moved forward and
“took the point,” turning off his flashlight and stepping in front of Lisenbee, as he was the more
experienced deputy and had more firepower. According to Hamer, he then saw Ermini emerge
from behind the still-closed left-side bedroom door, stand in the open, right side of the doorway,
and assume a “shooting stance” with both of her hands wrapped around the gun and her finger
on the trigger; he testified that, in fear for his life and the lives of the other deputies, he fired his
AR-15 rifle immediately, without ever ordering Ermini to drop her gun, striking Ermini several
times and causing her to collapse to the floor.
13
However, Lisenbee testified that he only saw
Ermini’s gun emerging from around the side of the closed door before Hamer shot her,
14
while
Palmese testified that she saw neither Ermini nor her gun until after the shooting.
What is clear from the record is that Hamer fired seven rounds from his AR-15 rifle at Ermini,
and that all seven rounds passed through the closed left-side bedroom door. At least two of
those rounds struck Ermini, hitting her left leg and right arm and causing her to immediately fall
backwards to the ground and drop her gun, which was found to the left of her body. Based on
the location of the bullet holes from the rounds fired by Hamer, it is improbable that Ermini was
standing in a shooting stance in the open right-side doorway and immediately shot by Hamer,
as Hamer claimed; at the time she was shot, the record shows that Ermini must have been at
least partially concealed behind the closed left-side doorway, through which all of Hamer’s
rounds passed, for any of those rounds to have struck her.
In any event, Hamer immediately called in the shooting over his radio and, after clearing the
bedroom and handcuffing Ermini, began rendering medical aide to Ermini until emergency
responders arrived and took over her care. Ermini was visibly confused and upset at this point,
repeatedly asking the deputies and emergency responders who the deputies were, why they
were in her home, and why they were trying to kill her.
Hamer later testified in the trial held in this matter that, when he enters a home without a
warrant or consent, he anticipates that the person inside might be surprised or frightened by his
presence, as the record suggests Ermini was; he also testified that, in such a situation,
communication is the key to reducing the person’s fear and surprise. However, the record is
clear that, from the point that Palmese radioed in that the front door was “wide open” to the point
that Hamer called in the shooting, a total of three minutes had elapsed; it is also clear that a
matter of seconds elapsed from the point that Lisenbee opened Ermini’s bedroom door to find
Ermini sleeping and the point that Hamer shot her.
Furthermore, at no point during the pre-shooting interaction did any deputy ensure that Ermini
knew and understood that they were law enforcement officers or explain to Ermini why they
were there. Neither did the deputies illuminate themselves so Ermini could see their uniforms;
instead, they shone bright flashlights in her eyes, so she couldn’t see them at all. Indeed, other
than one pronouncement of “Sheriff’s Office,” the deputies failed to communicate anything of
value to Ermini that would enable her to determine that her life was not in danger, and Hamer
would later testify that he was unsure Ermini even knew they were deputies at the time he shot
her, as she seemed confused.
13
Initial news reports submitted as evidence in the Special Master Hearing held in this matter suggested that Ermini
fired the first shot. By the time the matter went to trial, the narrative had changed, such that all the deputies admitted
that Hamer had fired the first shots. However, at some point after Hamer began shooting at Ermini, Ermini’s gun
discharged one round, which round passed through her kitchen wall at a point just inches below the ceiling. Ermini
testified that she does not remember firing her gun, and it is unclear from the record whether Ermini’s gun discharged
in the course of her fall or whether she fired the gun intentionally in response to Hamer shooting at her; in either case,
her finger must have been on the trigger to cause it to discharge.
14
This is consistent with Ermini’s testimony that she was peering around the closed left side of her bedroom door,
gun in hand, to determine who was in her home when Hamer shot her. STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
Injuries and Damages
Emergency medical responders transported Ermini by ambulance to the emergency department
of Lee Memorial Hospital, where she was sedated, intubated, placed on a ventilator, given fluids
and two units of blood, and admitted in critical condition. An injury evaluation revealed gunshot
wounds to her right upper arm and left thigh; a probable graze wound to her head; a fractured
left femur; a fourth ventricle hemorrhage; intracranial bleeding; and a foreign body lodged in her
right eye, which turned out to be a wood chip from Ermini’s bedroom door. Blood testing also
revealed her to have a blood alcohol content of .148.
15
After emergency medical personnel cleaned out her wounds and stopped her hemorrhage,
Ermini was admitted to the surgical intensive care unit, where she underwent procedures to
close her head wound, stabilize her fractured leg with screws and rods, and place skin grafts to
her right arm and left leg. She subsequently underwent numerous wound drainage procedures
and wound VAC changes before being discharged for out-patient and home care on April 18,
2012. However, Ermini became septic after her discharge, which infection caused her
tremendous pain for which she was prescribed pain medication. She also developed post-
traumatic stress disorder and paranoia, which, according to her testimony, causes her to
occasionally hide in her closet at night in case anyone should enter her home and try to kill her.
Initial Investigations
The LCSO initially placed Ermini under arrest and charged her with two counts of aggravated
assault on a law enforcement officer.
16
However, on June 5, 2012, the State Attorney for the 20
th
Judicial Circuit ultimately declined to prosecute the matter, citing insufficient evidence, and
dismissed all charges against Ermini.
The LCSO also conducted an internal investigation into the conduct of Hamer, Lisenbee, and
Palmese, finding that each deputy had acted appropriately under the circumstances and that the
shooting of Ermini was justified. No disciplinary action was ever taken against the deputies in
response to their actions during the March 23, 2012, check of Ermini’s welfare.
Litigation History
Initial Pleadings
On November 15, 2010, Ermini filed a Complaint against Sheriff Scott, in his official capacity,
the LCSO detective who had arrested Ermini, in his individual capacity, and against Hamer,
Lisenbee, and Palmese, in their individual capacities, (collectively “the Defendants”) in the Fort
Myers Division of the United States District Court for the Middle District of Florida.
17
Therein,
Ermini raised four counts alleging civil rights violations under 42 U.S.C. §1983 and nine counts
under state law, including Count XII of the Complaint, which count alleged that Sheriff Scott was
negligent through the actions of his detective and deputies.
On December 29, 2015, the Defendants filed an Answer denying the allegations in the
Complaint, demanding a jury trial, and raising eight affirmative defenses, including a defense:
That Ermini was herself negligent or engaged in wrongful conduct;
That the actions by the Sheriff, through his deputies, were taken without malice; with
probable cause; in pursuit of lawful and legal duties; with such force as was reasonable
15
Dr. Robert O’Connor, who treated Ermini in the emergency room, testified in the trial held in this matter that he
could not determine whether or not Ermini was impaired or intoxicated based on her blood alcohol content alone, as
the effects alcohol has on an individual vary based on how much alcohol that person regularly consumes.
16
Ermini was never transported to or held in jail; she was placed under arrest while in the hospital but eventually
posted bail and thus was able to return to her home upon her discharge from the hospital. Aggravated assault on a
law enforcement officer is a second-degree felony, punishable by up to 15 years’ imprisonment and a $10,000 fine.
Ss. 775.082 and 775.083, F.S.
17
See Case No. 2:15-cv-701-FtM-99CM. STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
and appropriate; and in self-defense or defense of others.
An alcoholic beverage defense under s. 768.36, F.S. (2012).
18
Further, on January 19, 2017, Sheriff Scott filed a Motion for Summary Judgment; the LCSO
detective and deputies filed their own Motion for Summary Judgment the next day. On April 5,
2017, the Court granted the Motion filed by the LCSO detective and deputies, thereby
dismissing all counts against them. The Court also granted in part and denied in part the Motion
filed by Sheriff Scott, dismissing all counts against him except for the portion of Count XII which
alleged that he was negligent through the actions of his deputies.
19
Jury Trial
On January 9, 2018, the Court convened a jury trial to hear the sole remaining count of Ermini’s
Complaint. At the conclusion of Ermini’s case-in-chief, Sheriff Scott elected not to present a
case, instead moving for a Judgment as a Matter of Law, wherein the Sheriff alleged that Ermini
failed to meet her burden of proving that the Sheriff, through his deputies, breached a duty owed
to her. The Court denied the Motion and sent the matter to the jury.
On January 11, 2018, the jury returned a verdict finding that Sheriff Scott was negligent, through
the actions of his deputies, which negligence was a legal cause of Ermini’s injuries. The jury
also found that Ermini was herself negligent, which negligence was also a legal cause of her
injuries. Ultimately, the jury attributed 75 percent of the negligence to Sheriff Scott and 25
percent of the negligence to Ermini, awarding her $1,000,000 in damages and reducing that
award by her percentage of fault, for a total award of $750,000, plus interest and taxable trial
and appellate costs in the amount of $76,769.93.
Motions for New Trial and Judgment as a Matter of Law
On February 7, 2018, Sheriff Scott filed a Motion for New Trial, wherein he asked the Court to
vacate the judgment against him and order a new trial on the grounds that he believed the Court
improperly admitted evidence,
20
and that Ermini’s counsel improperly pursued a non-existent
“negligent use of force” claim. The Sheriff also renewed his Motion for Judgment as a Matter of
Law, asking the Court to set aside the judgment and dismiss the lawsuit. The Court ultimately
denied both Motions on March 2, 2018.
18
S. 768.36, F.S., prohibits a plaintiff in a civil action from recovering any damages if the trier of fact finds that, at the
time the plaintiff was injured, the plaintiff was under the influence of any alcoholic beverage to the extent that the
plaintiff’s normal faculties were impaired or had a blood or breath alcohol level of 0.08 or higher, and as a result of the
influence of such alcoholic beverage, the plaintiff was more than 50 percent at fault for his or her own harm.
19
The order dismissed that portion of the count relating to the actions of the LCSO detective, but did not dismiss
those portions of the count relating to the actions of the deputies.
20
The evidence in question pertained to the apparently unrelated firing of Deputies Hamer and Lisenbee by the
LCSO shortly after the March 23, 2012, shooting of Ermini. The undersigned has not considered this evidence in
making her recommendation. STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
Appeals
On August 1, 2018, Sheriff Scott appealed the judgment entered against him to the United
States Court of Appeals for the Eleventh Circuit.
21
In his Initial Brief, the Sheriff argued that:
The trial court improperly instructed the jury about the legal consequences for accepting
his alcoholic beverages defense – that is, that Ermini would be unable to recover any
damages;
Ermini impermissibly pursued a non-existent “negligent use of force” claim;
Ermini’s counsel made a forbidden “golden-rule” argument; and
The trial court abused its discretion by admitting immaterial character evidence
pertaining to Deputies Hamer and Lisenbee.
On September 10, 2019, the Court affirmed the judgment in Ermini’s favor. Sheriff Scott then
filed Petitions for Rehearing and Rehearing En Banc, but the Court ultimately denied these
Petitions on November 7, 2019.
Payment and Excess Judgment
On December 9, 2019, the LCSO paid $200,000 to Ermini, which amount is the maximum
amount the LCSO was statutorily authorized to pay her under Florida’s sovereign immunity law,
codified in s. 768.28, F.S. This leaves in question an excess judgment of $550,000, plus interest
and taxable trial and appellate costs awarded to Ermini in the amount of $76,769.93, for a total
claim of $626,769.93.
CONCLUSIONS OF LAW
House Rule 5.6(b)
Pursuant to House Rule 5.6(b), judgments are not binding on the Special Master or the House
or any of its committees of reference. Thus, each claim is heard de novo, and the Special
Master must make findings of fact and conclusions of law which support the claim.
Negligence
In the instant matter, Ermini raises a negligence claim, the elements of which are duty, breach,
causation, and damages, and argues that Sheriff Scott was negligent through the actions of his
deputies under the respondeat superior doctrine. In turn, the LCSO alleges that the shooting of
Ermini was justified, that it was Ermini who was negligent, and, in any event, that there is no
cause of action for “negligent use of excessive force.”
Though the LCSO is correct that there is no such cause of action,
22
Ermini does not argue that
the shooting itself was negligent; rather, she argues that the shooting was the consequence of
the negligent conduct of Hamer, Lisenbee, and Palmese on March 23, 2012. Thus, the
undersigned finds it appropriate to consider Ermini’s negligence claim.
23
Duty
For a defendant to be liable for negligence, there must be either an underlying statutory or
common law duty of care with respect to the conduct at issue.
24
Though there is no statutory or
common law duty of care for exercising discretionary police power (that is, in choosing whether
or not to make an arrest or otherwise enforce the law), law enforcement activities involving
21
See Case No. 18-11220-H.
22
City of Miami v. Sanders, 672 So. 2d 46 (Fla. 3d DCA 1996) (finding that there is no cause of action for “negligent
use of excessive force” because there is no such thing as the negligent commission of an intentional tort).
23
Courts have found evidence of a law enforcement officer’s conduct, which conduct culminated in the officer
shooting an innocent person, sufficient to support a finding of negligence. Mazzilli v. Doud, 485 So. 2d 477 (Fla. 3d
DCA 1986).
24
Trianon Park v. Condo Assoc. v. City of Hialeah, 468 So. 2d 912 (Fla. 1985). STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
general health and welfare services may give rise to a common law duty of care.
25
In the case of a welfare check, the Florida Supreme Court has found that a Sheriff owes a
common law duty of care to the person whose welfare his deputies are dispatched to verify
pursuant to the “undertaker’s doctrine.”
26
In accordance with this doctrine, a person who
undertakes to render services to another, which services he should recognize as necessary for
the protection of the other person, is subject to liability to the other person for physical harm
resulting from his failure to exercise reasonable care in performing his undertaking, if his failure
to exercise such care increases the risk of such harm.
27
In the instant matter, Sheriff Scott, through the actions of Hamer, Lisenbee, and Palmese,
voluntarily undertook to perform a check of Ermini’s welfare at the request of LaCasse, which
welfare check the Sheriff recognized was necessary for the protection of Ermini. Thus, the
undersigned finds that the Sheriff owed a common law duty of care to Ermini.
Breach
The existence of a duty of care is alone insufficient to sustain a claim of negligence.
28
Once the
existence of a duty has been established, it merely “opens the courthouse doors”; a plaintiff
must still prove the remaining elements of negligence, the next of which is a breach of the duty
of care.
29
In the instant matter, Hamer, Lisenbee, and Palmese knew that Ermini was an elderly female
who lived alone; that Ermini had a gun for self-protection; and that Ermini had likely consumed
alcohol and could, therefore, be intoxicated, or at least impaired. The deputies also knew that it
was not Ermini who had contacted the LCSO, and, therefore, that she might be frightened or
confused by their unexpected appearance inside her home.
However, Hamer, Lisenbee, and Palmese chose to enter Ermini’s home after only briefly
attempting to establish contact with her by banging on her door and shouting inside. Further,
due to Lisenbee’s interference with the scene before Palmese and Hamer arrived, and their
subsequent failure to communicate the fact of this interference to Hamer, Hamer entered the
home in the mistaken impression that the other deputies had found the front door wide open.
Unfortunately, the communication failures did not stop there. Once at the primary bedroom,
Lisenbee threw open Ermini’s bedroom door without first attempting to establish contact with
Ermini; it was only once the door was open that he announced “Sheriff’s Office” and attempted
to make their presence known to her. Such actions directly conflict with the procedures Riordan
testified a deputy should generally follow when confronted with the possibility that an armed
person may be behind a closed door; in proceeding as he did, Lisenbee put himself, and
consequently Hamer and Palmese, in what could have been the direct line of fire, thus
heightening the risk for the deputies and, consequently, Ermini.
Furthermore, once Lisenbee began communicating with Ermini, it became apparent to the
deputies that Ermini was confused; however, the deputies failed to ensure that Ermini knew they
were in fact law enforcement officers; failed to inform Ermini of why they were there, or who had
sent them; and failed to order Ermini to drop her gun. Indeed, given that it was a matter of
seconds from the time the deputies opened the sleeping Ermini’s bedroom door to the time
Hamer shot her, it is apparent that the deputies failed to give Ermini sufficient time to
comprehend that they were not intruders or otherwise a threat to her safety, and to decide to
emerge unarmed.
Though the undersigned has no doubt that Hamer feared for his own life, and the lives of
Lisenbee and Palmese, at the time he shot Ermini, it appears that the deputies, through a
25
Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009).
26
Id.
27
Rest. 2d Torts § 323.
28
Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001).
29
Id. at 221. STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
persistent failure of communication, created a situation that put Ermini in fear for her life and,
consequently thereafter, put the deputies in fear for their own lives. Based on the foregoing, the
undersigned finds that Sheriff Scott, through the actions of his deputies, failed to exercise
reasonable care in conducting the check of Ermini’s welfare he had undertaken to perform,
thereby increasing the risk of Ermini’s harm, and, thus, breached the duty of care he owed to
Ermini.
Causation
Once a duty and a breach thereof are established, causation must be determined. In making
such a determination, Florida courts follow the “more likely than not” standard, requiring proof
that the negligence proximately caused the plaintiff’s injuries.
30
In determining whether a
defendant’s conduct proximately caused a plaintiff’s injury, the factfinder must analyze whether
the injury was a reasonably foreseeable consequence of the danger created by the defendant’s
negligent conduct.
31
This analysis does not require the defendant’s conduct to be the exclusive,
or even the primary, cause of the injury suffered; instead, the plaintiff must only show that the
defendant’s conduct was a substantial cause of the injury.
32
In the instant matter, Hamer shot Ermini several times, causing her physical injury and
impairment and related psychological harm. Thus, the record is clear that Ermini suffered
injuries as a result of Sheriff’s Scott’s breach of the duty of care.
In analyzing whether such injuries were a reasonably foreseeable consequence of the danger
created by Sheriff’s Scott’s negligence, and thus the proximate cause of Ermini’s injury, the
undersigned gives weight to the information the deputies possessed (that is, that Ermini was an
elderly female who lived alone; that she likely did not know that law enforcement was coming to
her home, or for what reason; that she had a gun for self-protection; and that she had likely
consumed alcohol and could, therefore, be intoxicated, or at least impaired). Given this
information, the undersigned believes that it was reasonably foreseeable that a person who
lives alone might fear for her safety if she hears uninvited, unknown persons inside her home at
night; that a person who possesses a gun for self-protection might draw said gun, and keep it
drawn while she fears for her safety; and that a person who may be impaired, or at the very
least frightened, might need more than seconds and a shout of “Sherriff’s Office” to comprehend
that she was not in danger.
Taking all of this together, the undersigned believes that Ermini’s actions were reasonably
foreseeable to the deputies, and yet the deputies proceeded without sufficient caution, thereby
creating the situation that ultimately put them in fear for their lives. Further, the deputies entered
Ermini’s home prepared to respond to threats to their safety with firepower. Though the
undersigned does not fault the deputies for having their weapons at the ready in the face of an
uncertain situation, the undersigned believes that it was reasonably foreseeable that a deputy
might shoot Ermini for responding to their unexpected presence and failure to effectively
communicate in the manner that she did. Thus, the undersigned believes that Sheriff Scott’s
negligence was the proximate cause of Ermini’s injuries.
33
30
Gooding v University Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla. 1984); Ruiz v. Tenent Hialeah Healthsystem, Inc.,
260 So. 3d 977 (Fla. 2018).
31
Ruiz, 260 So. 3d at 981-982.
32
Id. at 982.
33
In coming to this conclusion, the undersigned considered the jury’s determination that Ermini was 25 percent at
fault for her own harm and, thus, a proximate cause of her own injuries. While the undersigned wonders how an
officer-involved shooting is a reasonably foreseeable consequence of a person drinking alcohol alone; getting upset
during a phone call with a family member; playing “phone tag” with such family member; and then going to sleep in
her own bed, all without ever leaving her home or calling law enforcement herself, the undersigned accepts the jury’s
apportionment of fault as reasonable. The undersigned also rejects any argument that Ermini was more than 50
percent at fault for her own harm due to intoxication; though she had consumed alcohol and had a blood alcohol
content of .148, Ermini’s treating emergency room physician could not say with any certainty that she was intoxicated,
or even impaired. Furthermore, even if Ermini was intoxicated or impaired, it does not logically follow that she should
be more responsible for her injuries than the LCSO, as she did not know the deputies were coming to her home and
thus could not have prepared for their arrival by abstaining from alcohol. STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
Damages
To sustain a negligence claim, the plaintiff must prove actual loss or damages resulting from the
injury, and the amount awarded must be precisely commensurate with the injury suffered.
34
Actual damages may be “economic damages,” that is, financial losses that would not have
occurred but for the injury giving rise to the cause of action, such as lost wages and costs of
medical care. Actual damages may also be “non-economic damages,” that is, nonfinancial
losses that would not have occurred but for the injury giving rise to the cause of action, such
as pain and suffering, physical impairment, and other nonfinancial losses authorized under
general law.
35
In the instant matter, Ermini testified to non-economic damages, including severe and crippling
permanent bodily injury; pain and suffering; humiliation; mental anguish; and loss of capacity for
the enjoyment of life. The jury ultimately awarded Ermini $1,000,000 for said damages;
however, the jury also assigned her 25 percent of the fault for her own harm.
Under the “pure comparative negligence” standard in effect at the time of Ermini’s trial, a plaintiff
could only recover damages proportional to the percentage of fault assigned to her by the jury.
36
Accordingly, the jury reduced Ermini’s $1,000,000 damages award by 25 percent, for a total
award of $750,000, plus costs and interest. The LCSO has since paid Ermini $200,000 of this
amount, which is the maximum amount Florida’s sovereign immunity law authorized it to pay,
leaving Ermini with an excess judgment claim for $626,769.93. Thus, the undersigned finds that
Ermini suffered actual damages resulting from her injuries.
37
Respondeat Superior
Under the common law respondeat superior doctrine, an employer is liable for the negligence of
its employee when the:
Individual was an employee when the negligence occurred;
Employee was acting within the course and scope of his or her employment; and
Employee’s activities were of a benefit to the employer.
38
For conduct to be considered within the course and scope of the employee’s employment, such
conduct must have:
Been of the kind for which the employee was employed to perform;
Occurred within the time and space limits of his employment; and
Been due at least in part to a purpose serving the employment.
39
Because Hamer, Lisenbee, and Palmese were at all times relevant to the instant matter
employed by Sheriff Scott as deputy sheriffs and were acting within the course and scope of
their employment, which employment benefitted the Sheriff, and by extension, the LCSO, the
undersigned finds that the LCSO is liable for their negligence under the common law
respondeat superior doctrine.
POSITIONS OF CLAIMANT AND RESPONDENT
Claimant’s Position
Ermini asserts that she is entitled to the excess judgment amount of $626,769.93 requested in
the claim bill. In support of her position, Ermini alleges that Sheriff Scott was negligent through
the actions of his deputies, which negligence culminated in an LCSO deputy shooting Ermini.
34
McKinley v. Gualtieri, 338 So. 3d 429 (Fla. 2d DCA 2022); Birdsall v. Coolidge, 93 U.S. 64 (1876).
35
FLJUR MEDMALP § 107.
36
Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).
37
The undersigned finds that the $1,000,000 jury verdict, offset by the percentage of fault the jury apportioned to
Ermini, was a reasonable award in light of Ermini’s continued physical impairments and psychological suffering.
38
Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So. 2d 353 (Fla. 3d DCA 2001).
39
Spencer v. Assurance Co. of Am., 39 F.3d 1146 (11th Cir. 1994) (applying Florida law). STORAGE NAME : h6509b.JDC
DATE: 4/4/2025
Respondent’s Position
The LCSO contests the passage of this claim bill, as it is the LCSO’s position that Ermini was
negligent and therefore caused her own harm. However, should the claim bill pass, the LCSO,
through counsel, indicated that payment of the requested amount would not impact the LCSO’s
operations as it is self-insured through the Sheriffs Risk Management Fund, which fund has
sufficient resources to pay the requested amount.
ATTORNEY AND LOBBYING FEES
Under the terms of the claim bill, attorney fees may not exceed 25 percent of the total award –
that is, $156,692.48. Because Claimant’s counsel is also acting as her lobbyist, there are no
separate lobbying fees requested.
RECOMMENDATION
Based on the foregoing, I recommend that House Bill 6509 be reported FAVORABLY.
Respectfully submitted,
CAITLIN R. MAWN,
House Special Master