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
3/20/25 SM Favorable
March 20, 2025
The Honorable Ben Albritton
President, The Florida Senate
Suite 409, The Capitol
Tallahassee, Florida 32399-1100
Re: SB 4 – Senator Rodriguez
HB 6509 – Representative Hart
Relief of Patricia Ermini by the Lee County Sheriff’s Office
SPECIAL MASTER’S FINAL REPORT
THIS IS A CONTESTED CLAIM FOR LOCAL FUNDS IN THE
AMOUNT OF $626,769.93 TO BE PAID BY THE FLORIDA
SHERIFFS SELF INSURANCE FUND ON BEHALF OF ITS
INSURED, THE LEE COUNTY SHERIFF ’S OFFICE, TO
PATRICIA ERMINI AS COMPENSATION FOR DAMAGES
AWARDED BY JURY VERDICT IN CONNECTION WITH
NEGLIGENT CONDUCT DURING A WELLNESS CHECK BY
LEE COUNTY SHERIFF’S DEPUTIES. THE AMOUNT
REPRESENTS AN EXCESS JUDGMENT IN THE AMOUNT
OF $550,000, PLUS INTEREST, TAXABLE TRIAL COSTS ,
AND APPELLATE COSTS AWARDED TO MS. ERMINI AS A
RESULT OF HER INJURIES.
FINDINGS OF FACT: On the evening of March 23, 2012, Ms. Robin LaCasse
(LaCasse), at approximately 8:40 p.m., placed a phone call to
the Lee County Sheriff’s office to request a wellness check on
her mother, the claimant, Ms. Ermini (then Ms. Mapes)
(Ermini).
1
During the call, LaCasse informed the Sherriff’s
Office that she had spoken with Ermini about an hour before
and Ermini seemed distraught and possibly suicidal. LaCasse
1
Lee County Sherriff’s Office, Call from Robin LaCasse CFS#12-125672 at 1, Respondent’s
Exhibit C. SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 2
was concerned that she had been unable to get back in touch
with Ermini. During the call, LaCasse also relayed that Ermini
had a pistol in her home and that Ermini may have been
drinking.
2
At approximately 8:45 p.m., three Lee County deputies were
dispatched to the home of Ermini to conduct the wellness
check—Charlene Palmese (Palmese), Robert Hamer
(Hamer), and Richard Lisenbee (Lisenbee).
3
Deputies
Palmese, and Lisenbee were relatively inexperienced law
enforcement officers, Palmese
4
having completed her field
training in November of 2011 and Lisenbee having completed
his field training in February of 2011.
5
Hamer was the more
senior official, with ten years of experience between the Lee
County Sherriff’s Department and New York City Police
Department.
6
The deputies were advised, by dispatch and computer-aided
dispatch of Ermini’s name, age (70 years old), that Ermini was
going through a divorce, received bad news that day, and was
possibly suicidal; that LaCasse was concerned for Ermini’s
well-being; that Ermini owned a pistol; that Ermini had not
answered her phone for the past hour; and Ermini was
possibly intoxicated.
7
Lisenbee was the first to arrive on scene at approximately
8:53 p.m.,
8
parking his patrol vehicle out of view of Ermini’s
residence. Lisenbee, according to his testimony, did not do a
full check of the perimeter of Ermini’s home, did not check for
open or broken windows, and instead headed to Ermini’s front
door. Lisenbee banged on the door and announced “Sherriff’s
Office.”
9
Finding the door to be unlocked, Lisenbee briefly
stepped into the residence to find the all of the lights turned
2
Id.
3
Lee County Sherriff’s Office, Incident Recall, Claimant’s Exhibit 30.
4
Trial Transcript Vol 1 Day One of Three of Trial: Direct of Charlene Palmese, Claimant’s Exhibit 34.
5
Trial Transcript Vol 2 Day Two of Three of Trial Part 1: Direct of Richard Lisenbee, Claimant’s Exhibit 35.
6
Trial Transcript Vol 2 Day Two of Three of Trial Part 1: Direct of Robert Hamer, Claimant’s Exhibit 35.
7
See Incident Recall, supra note 3, and Trial Transcript Vol 2 Day Two of Three of Trial: Direct and redirect of
Karen Snyder-O’Bannon, Claimant’s Exhibit 35.
8
Incident Recall, supra note 3.
9
Direct of Lisenbee, supra note 5. SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 3
off and it very dark inside.
10
Lisenbee then backed out of the
home as Palmese arrived.
11
Palmese was the next to arrive at 8:55 p.m.,
12
also parking
her patrol vehicle out of view of Ermini’s residence.
13
After re-
entering the home through the door Lisenbee left open,
Palmese and Lisenbee stated that Lisenbee again called out
“Sheriff’s Office,” again with no response.
14
The home was in
a significant degree of disarray
15
and Lisenbee claimed to see
a wine bottle on the floor.
16
At this point, the two deputies,
decided that the situation called for additional backup and
they backed out of the home.
17
Hamer was the last of the deputies to arrive, at approximately
8:57 p.m.
18
He retrieved an AR-15 rifle from the trunk of his
patrol vehicle and joined Lisenbee and Palmese outside of
Ermini’s residence.
19
He could not say for certain whether his
vehicle was visible from the residence, “but there [were] trees
in the back of the picture,” of his parked vehicle.
20
The three deputies (Lisenbee, Palmese, and Hamer)
reentered the home and began to “clear” the residence.
Lisenbee approached Ermini’s bedroom. The bedroom had
double-doors, both of which were closed, and the officers
could not see through them. Lisenbee opened the door on his
right side, and shined a flashlight onto Ermini’s bed. He did
not knock first and was intentionally obfuscating himself from
Ermini’s vision with the flashlight.
21
At this point, the testimony significantly diverges. Lisenbee
stated that he announced several times “Sherriff’s Office,
we’re here to help you,” and then went into Ermini’s bedroom
10
Id. At trial there did seem to be some inconsistency between Lisenbee’s testimony and previous deposition
regarding the status of Ermini’s front door as to whether it was “unlatched” or simply unlocked, but closed.
11
Direct of Lisenbee, supra note 5.
12
Incident Recall, supra note 3.
13
Direct of Palmese, supra note 4.
14
Direct of Palmese, supra note 4; Direct of Lisenbee, supra note 5.
15
See Composite Exhibit—Photographs, Respondent’s Exhibit F.
16
Lee County Sherriff’s Office, Sworn Statement of Deputy Richard Lisenbee CFS#12-125672, Respondent’s
Exhibit J.
17
Id.; Direct of Palmese, supra note 4.
18
Incident Recall, supra note 3
19
Direct of Hamer, supra note 6
20
Id.
21
Direct of Lisenbee, supra note 5. SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 4
continuing to shout, “Sherriff’s Office, we’re here to help you.”
Lisenbee did not think that shouting would frighten Ermini.
Lisenbee then said that he saw Ermini lying on her bed in her
undergarments. He did not see a firearm at this time. At this
point, Ermini appeared to arouse from her sleep, and,
according to Lisenbee said, “Who is it?” to which Lisenbee
responded again with, “Sherriff’s Office, we’re here to help
you.” After this, according to Lisenbee, Ermini responded with
“I don’t care. I’m gonna shoot you.”
22
Hamer recalled that he first entered the home he went through
the living room. Having heard Lisenbee make contact with
Ermini, he turned around and looked towards the double
doors of Ermini’s bedroom. After hearing Ermini state, “I don’t
care. I’m gonna shoot you,” he told her to get back as he and
Lisenbee backed away from the double-doors.
23
Ermini’s recollection of the events in her testimony at trial was
that she awoke when someone opened the door to her
bedroom and heard someone say, “Here she is over here.”
24
Upon hearing this, Ermini testified that she said, “Get out of
my house, I have a gun.” She did not recall hearing anyone
say that they were with the Sherriff’s Department or that they
were there to help her.
Ermini approached her bedroom door with her Glock pistol,
and at some point placed her finger onto its trigger.
25
Hamer
stated that, as Lisenbee was walking backwards, he saw
Ermini approach, place both hands around the grip of her
firearm, finger on the trigger, pointing the firearm at him with
Ermini stating that “I’m gonna shoot you.” At this point, Hamer,
having kneeled down into a firing position, stated that he shot
at Ermini seven times and that there was no time for him to
tell Ermini to drop her firearm.
26
Ermini recalled in her trial testimony that she was standing
behind her opened bedroom door, “apparently” with her
22
Direct of Lisenbee, supra note 5.
23
Direct of Hamer, supra note 6.
24
Trial Transcript Vol. 4 Day Three of Three of Trial Part 1: Direct of Robert Hamer, Claimant’s Exhibit 37.
25
According to the claimant’s own expert witness on Glock firearms, Larry Williams, at the special master’s
hearing, it would be “impossible” for a Glock pistol such as Ermini’s to discharge a round without a person pulling
the trigger and the pistol could not accidentally go off simply by being dropped. Since it is not disputed that
Ermini’s pistol did discharge, she had her finger on the trigger of the firearm at some point.
26
Direct of Hamer, supra note 6. SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 5
firearm (which she did not remember picking up). Ermini then
stated that she looked around the door and the light of
flashlights were hitting her in the eye and said, “Put your
flashlights down, I can’t see anything.” The flashlights then
went off of her and that is when she saw “this guy down on his
knees with—well, I call it a machine gun,” who then opened
fire. After being shot twice, Ermini said she asked, “What are
you shooting me for?” followed by what sounded like “bombs
going off in my house.” This is the last thing she could recall
from the incident.
27
Regardless of what series of events prompted it, Hamer fired
his AR-15 seven times in Ermini’s direction, striking her five
times through the closed half of her double-door. At some
point after Hamer started firing, Ermini’s firearm discharged,
28
with the round later found in the ceiling of her home. Hamer
admits to firing first. Hamer stated that he ceased firing upon
seeing Ermini fall and drop her weapon, which fell to the left
side of Ermini (Ermini is right handed).
The entire time elapsed from when the three deputies entered
the home together through the front door and shots being fired
is not entirely clear from the record. However, during the
special master hearing, counsel for the Claimant played a
recording of the dispatch from the night of the incident.
29
From
the time that Palmese reported to dispatch that the door to
Ermini’s home was open until the report of shots fired was
approximately 35 seconds. This likely represents the
maximum amount of time that elapsed from the time the three
deputies entered the home and Ermini was shot. The entire
time from when Lisenbee first arrived on scene and shots
were fired was likely no more than six to seven minutes.
According to Hamer, he immediately began giving emergency
care to Ermini until paramedics arrived.
30
According to the
witnesses (deputies and the paramedics that arrived on
scene), Ermini still seemed extremely confused as to what
27
Direct of Ermini, supra note 24.
28
What caused Ermini’s discharge is inconclusive. Claimant did present evidence at the special master’s hearing
that Ermini’s firearm may have inadvertently discharged due to a “limp-wrist malfunction,” potentially
demonstrating that Ermini did not have a full grip of the weapon at the time it discharged. However, even if so, it
does not necessarily indicate whether or not Ermini intended to fire at the officers or that the pulling of the trigger
of her firearm was inadvertent due to being shot. Regardless, it is clear from the evidence that Ermini had her
finger on the trigger of her firearm and that Hamer was the first to shoot.
29
A full copy of the dispatch audio was also provided in Respondent’s Exhibit E.
30
Direct of Hamer, supra note 6. SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 6
was happening—asking why the deputies were in her home
and why they were trying to kill her. Ermini was subsequently
transported to Lee Memorial Hospital for treatment where she
ultimately survived her wounds. She was also placed under
constant supervision by sheriff’s deputies at the hospital due
to suspicion that she had committed a criminal offense. Ermini
was formally arrested on March 30.
31
At the hospital, Ermini was diagnosed with gunshot wounds
to her head, upper right extremity, and lower left extremity with
an open fracture
32
to her femur. She also had blood in the 4
th
ventricle leading from her brain and wood splinters imbedded
in her face from her bedroom door.
33
It was also later
discovered that Ermini had a wood fragment from her
damaged door lodged in her right eye.
Shortly after Ermini’s admission, around 9:35 p.m., the
hospital also drew blood for a series of lab tests. As part of the
lab test, Ermini’s blood alcohol level came back as 0.0148.
34
Dr. Robert O’Connor (O’Connor), a trauma surgeon at Lee
Memorial Hospital who helped treat Ermini, stated at trial that
although this would be nearly double the legal limit for driving,
it does not automatically indicate impairment as alcohol can
affect people differently.
Ermini was discharged from the hospital on April 18, ending
up staying in the hospital for a total of 26 days. During that
time, Ermini had multiple surgeries including skin grafts and a
rod placed in her leg.
35
On June 5, 2012, the State’s Attorney Office filed a no
information due to lack of evidence, dropping the charges
against Ermini.
36
In describing her injuries at trial, Ermini stated that she still
does not see well out of her injured eye and can no longer
drive at night, still did not have full range of motion with her
arm, still took pain medicine for her leg, and continued to have
scars from her injuries. She also suffered for several years
31
Lee County Sherriff’s Office, Criminal Investigation Report, Respondent’s Exhibit H.
32
An open fracture is a broken bone with an open wound or break in the skin.
33
Trial Transcript Vol 3 Day Two of Three of Trial Part 2: Direct of Robert O’Connor, Claimant’s Exhibit 36.
34
Id. Ermini admitted to having “two goblets of wine” that evening. Direct of Ermini, supra note 24.
35
Id.
36
Ermini v. Scott, 249 F. Supp. 3d 1253, 1263 (M.D. Fla. 2017) SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 7
from fear that someone would come in her room while she
was asleep. She testified that she still slept with her “bedroom
door locked and my gun real close by.”
37
LITIGATION HISTORY: On November 10, 2015, Claimant filed a complaint and
demand (in Federal Court) for jury trial against Sheriff Mike
Scott (Scott), in his official capacity as Sheriff of Lee County,
Florida, and Palmese, Lisenbee, Hamer, and William Murphy
(Murphy), individually.
38
On October 24, 2016, Claimant filed an amended complaint.
39
The amended complaint against Scott alleged 13 total counts:
• Count I (Federal Law Claim): Violation Civil Rights
against Palmese, Lisenbee, and Hamer for Unlawful
Search and Seizure Pursuant to 42 U.S.C. § 1983.
• Count II (Federal Law Claim): Violation of Civil Rights
Excessive and Deadly Force against Hamer Pursuant
to 42 U.S.C. § 1983.
• Count III (Federal Law Claim): Violation of Civil Rights
of Pursuant to 42 U.S.C. § 1983 against Murphy for
False Arrest.
• Count IV (Federal Law Claim): Violation of Civil Rights
Pursuant to 42 U.S.C. § 1983 Against Murphy for
Falsifying an Affidavit to Obtain an Unlawful Search
Warrant.
• Count V (State Law Claim): Unlawful Search and
Seizure by Palmese, Lisenbee, and Hamer.
• Count VI (State Law Claim): Claim for Battery against
Hamer.
• Count VII (State Law Claim): Claim for Gross
Negligence against Palmese, Lisenbee, and Hamer.
• Count VIII (State Law Claim): Claim for Negligent
Infliction of Emotional Distress against Lisenbee and
Hamer.
• Count IX (State Law Claim): Claim for Malicious
Prosecution against Murphy.
• Count X (State Law Claim): Claim for Intentional
Infliction of Emotional Distress against Murphy.
37
Direct of Ermini, supra note 24.
38
Patricia I. Ermini, formerly known as Patricia I. Mapes, Plaintiff, v. Mike Scott, in his Official Capacity as Sheriff
of Lee County, Florida, Charlene Palmese, individually, Richard Lisenbee, individually, Robert Hamer, individually
and William Murphy, individually, Defendants., 2015 WL 13801355 (M.D.Fla.).
39
Patricia I. Ermini, formerly known as Patricia I. Mapes, Plaintiff, v. Mike Scott, in his Official Capacity as Sheriff
of Lee County, Florida, Charlene Palmese, individually, Richard Lisenbee, individually, Robert Hamer, individually
and William Murphy, individually, Defendants., 2016 WL 10951433 (M.D.Fla.). SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 8
• Count XI (State Law Claim): Claim for Negligence
against Scott for Failure to Properly Train and
Supervise.
• Count XII (State Law Claim): Claim for Negligence
against Scott.
• Count XIII (State Law Claim): Claim for Defamation
against Scott. The amended complaint notes, however,
that this count had already been dismissed.
On April 15, 2017, the trial court granted summary judgment
dismissing all of the counts in the case, except the portion of
Count XII relating to Scott.
40
On January 9, 2018, a three-day trial was conducted
regarding the claim of negligence against Scott, in his official
capacity as Sherriff of Lee County. At the conclusion of the
trial, the jury found that the negligence of Scott was the legal
cause of Ermini’s injuries, and also found that Ermini’s
negligence also contributed to her injuries. The jury found
“Ermini's damages for pain and suffering disability, physical
impairment, disfigurement, mental anguish, inconvenience,
aggravation of a disease or physical defect, scarring and loss
of capacity for the enjoyment of life sustained in the past and
to be sustained in the future” to be $1,000,000. The jury
apportioned fault to be 75 percent with Scott and 25 percent
with Ermini, making a total award to Ermini of $750,000.
41
The
court subsequently entered a judgment in favor of Ermini for
$750,000 on January 12, 2018.
On February 7, 2018, Respondent filed a Motion for New Trial
and Renewed Motion for Judgment as a Matter of Law. This
motion was denied by the trial court on March 2, 2018.
42
Respondent subsequently appealed the trial court’s decision
in the United States Court of Appeals, Eleventh Circuit. This
appeal was denied on September 10, 2019.
43
A de novo special master final hearing was held on December
19, 2023. The Legislature is not bound by settlements or jury
40
Ermini v. Scott, 249 F. Supp. 3d 1253, 1283 (M.D. Fla. 2017)
41
Jury Verdict Form for 2018 WL 1053132 (M.D.Fla.).
42
Ermini v. Scott, 2:15-CV-701-FTM-31CM, 2018 WL 1139053, at *3 (M.D. Fla. Mar. 2, 2018), aff'd, 937 F.3d
1329 (11th Cir. 2019).
43
Ermini v. Scott, 937 F.3d 1329 (11th Cir. 2019). SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 9
verdicts when considering a claim bill, passage of which is an
act of legislative grace.
CONCLUSIONS OF LAW: Section 768.28, of the Florida Statutes, waives sovereign
immunity for tort liability up to $200,000 per person and
$300,000 for all claims or judgments arising out of the same
incident. Sums exceeding this amount are payable by the
State and its agencies or subdivisions by further act of the
Legislature.
Vicarious Liability
As pointed out by the appellate court, “practically speaking,
the deputies’ actions are on trial,”
44
and Scott was the
defendant due to vicarious liability whereby an employer is
responsible for actions of employees. Section 30.07, of the
Florida Statutes, authorizes such vicarious liability for the
actions of deputies stating that, “Sheriffs may appoint
deputies to act under them who shall have the same power as
the sheriff appointing them, and for the neglect and default of
whom in the execution of their office the sheriff shall be
responsible.”
Negligence, Generally
Negligence is the failure to take care to do what a reasonable
and prudent person would ordinarily do un der the
circumstances.
45
Negligence is inherently relative—“its
existence must depend in each case upon the particular
circumstances which surrounded the parties at the time and
place of the events upon which the controversy is based.”
46
Negligence comprises four necessary elements: (1) duty–
where the defendant has a legal obligation to protect others
against unreasonable risks; (2) breach–which occurs when
the defendant has failed to conform to the required standard
of conduct; (3) causation–where the defendant’s conduct is
foreseeably and substantially the cause of the resulting
damages; and (4) damages–actual harm.
47
Negligent Use of Excessive Force
44
Id. at 1343 (11th Cir. 2019)
45
De Wald v. Quarnstrom, 60 So.2d 919, 921 (Fla. 1952).
46
Spivey v. Battaglia, 258 So.2d 815, 817 (Fla. 1972).
47
Williams v. Davis, 974 So.2d 1052, 1056–1057 (Fla. 2007). SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 10
Respondent argues that Ermini’s claim is barred in this matter
as it is based upon a non-existent cause of action in Florida—
negligent use of excessive force. Citing City of Miami v. Ross,
695 So.2d 486, 487 (Fla. 3d DCA 1997), City of Miami v.
Sanders, 672 So.2d 46, 48 (Fla. 3d DCA 1996), and others,
Respondent correctly argues that negligent use of excessive
force is not a possible cause of action. In Sanders, the court
points out that excessive force is an intentional tort involving
battery, and thus, by its very nature, not negligence. Battery
cannot be premised upon an omission or failure to act.
48
The Sanders court does, however, point out that negligence
“on the other hand, requires only the showing of a failure to
use due care and does not contain the element of intent” and
“a separate negligence claim based upon a distinct act of
negligence may be brought against a police officer in
conjunction with a claim for excessive use of force.”
49
“Negligence is not dependent upon bad intention, nor is it
necessarily [negated] by good intention.”
50
The issue in this matter is not the force, excessive or
otherwise,
51
used by the deputies. Rather, it is whether the
deputies were negligent in conducting the wellness check—
which then lead to the use of force.
Duty
Duty Element with Government Entities
To have liability in tort for a government entity, there must
exist an “underlying common law or statutory duty of care with
respect to the alleged negligent conduct. For certain basic
judgmental or discretionary governmental functions, there has
never been an applicable duty of care.”
52
Section 768.28, of
the Florida Statutes, does not establish any new duty of care
for governmental entities. The purpose of statute was to waive
48
Sullivan v. Atl. Fed. Sav. & Loan Ass'n., 454 So.2d 52, 54 (Fla. 4th DCA 1984).
49
Sanders at 47-48.
50
Booth v. Mary Carter Paint Co., 182 So.2d 292, 299 (Fla. 2d DCA 1966).
51
As stated, the excessive force claim made in the original complaint was dismissed via summary judgment.
Thus, “excessive force” is not being considered here as part of Ermini’s claim.
52
Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985). SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 11
immunity that prevented recovery for breaches of existing
common-law duties of care.
53
Undertaker Doctrine
Special relationships can give rise to a duty. Such a duty can
arise from a status (such as between a parent and child) or
can arise from voluntary contracts or undertakings. An
undertaking in this sense means an explicit or implicit
promise, or commitment, conveyed through words or
conduct.
54
Generally, undertakings create a duty which must
be performed with reasonable care.
55
The Florida Supreme Court, in Wallace v. Dean, 3 So. 3d
1035, 1049 (Fla. 2009), held that a sheriff, acting through their
deputies, owed a common-law duty of care to a specific
individual when they undertook to provide a service (a welfare
check) to that individual. The Court found that once the
deputies—who are agents of the sheriff—“respond, actually
engage an injured party, and then undertake a safety check,
which places the injured party in a ‘zone of risk’ because the
officers either increased the risk of harm to the injured party
or induced third parties—who would have otherwise rendered
aid—to forebear from doing so.”
56
The Court also cited, with
approval, the common-law undertakers doctrine stated in
Restatement (Second) of Torts section 323:
One who undertakes, gratuitously or for consideration,
to render services to another which he should
recognize as necessary for the protection of the other's
person or things, is subject to liability to the other for
physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk
of such harm, or
(b) the harm is suffered because of the other's reliance
upon the undertaking.
57
53
Id.
54
Dan B. Dobbs, Paul T. Hayden, and Ellen M. Bublick, The Law of Torts § 410 (2d ed.) (regarding defendant's
undertaking creating a duty to the plaintiff).
55
Roos v. Morrison, 913 So.2d 59, 64 (Fla. 1st DCA 2005).
56
Wallace v. Dean, 3 So.3d 1035, 1040 (Fla. 2009).
57
Id. at 1051. SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 12
In the matter at hand, like in Wallace, the deputies were
engaged in a wellness check, and in so doing, owed a duty
to Ermini to exercise reasonable care in doing so. The duty
of care owed would be that of a reasonable law
enforcement officer.
Breach
In this case, the deputies had been informed that Ermini
was potentially intoxicated. They also had been informed
that Ermini was potentially suicidal and had a firearm. In
entering a fully darkened home and getting no response to
their initial inquiries, the deputies should have reasonably
inferred that Ermini was either asleep or unconscious. As
such, she likely would be slow, or unable, to hear their
pronouncements that they were with the sheriff’s office
and were there to help her.
Further, any reasonable person, and especially a law
enforcement officer, should recognize that having
unexpected persons in one’s darkened home, obscured
while shining flashlights while one is asleep at night, would
be very likely to be frightening and surprising. It is also not
unreasonable to anticipate that a person in such a
situation may instinctually reach for a firearm to protect
themselves.
Given the obvious risk to Ermini and the officers in the
situation, the likely less than 35 seconds from time the
three deputies entered the home together through the front
door and shots being fired, demonstrates that the deputies
were either careless or reckless in assessing the situation
and attempting to safely make contact with Ermini to
assess her well-being. The conduct of the deputies in
conducting the wellness check was negligent in both the
management of the situation and time taken to assess
alternatives.
Causation
The Respondent argues that Ermini, “either knew she was
attempting to kill deputies, or she was too drunk to know
she was about to kill deputies who were there to help SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 13
her.”
58
However, this argument is based solely upon the
fact that the deputies “repeatedly announced their
presence.”
59
The deputies parked their patrol vehicles out
of sight (Palmese and Lisenbee testified this was done
intentionally, Hamer could not recall or ascertain whether
he had done the same, but likely had done so) and
Lisenbee intentionally obfuscated himself from Ermini’s
vision with a flashlight. The deputies did not indicate that
they were there at the behest of Ermini’s daughter or give
any other evidence that they were who they said they
were. Thus, Ermini’s only audio or visual indication that the
deputies were law enforcement with no ill-intention were
the deputies’ announcement—a statement any unlawful
intruder could make as well.
In addition, the record does not indicate that Ermini had,
at the time of the incident or at any time before the incident,
any animus towards law enforcement. Thus, there is no
basis to the claim that Ermini was intentionally seeking to
kill someone due to that person being a law enforcement
officer. Instead, a preponderance of the evidence shows
that Ermini was a frightened woman, clothed in
undergarments and just aroused from sleep, who was not
fully aware of the circumstances within which she
suddenly found herself (which may have been partially due
to intoxication, discussed further below), who took spur of
the moment action to protect herself in her own home from
unexpected persons entering her home at night. The
deputies may have reasonably feared for their own lives
before Hamer shot at Ermini; however, the deputies’ own
negligent conduct placed themselves in that situation. This
same negligence was the cause of Ermini’s injuries.
Damages
Through the provision of records and evidence showing
Ermini’s injuries, the Claimants have established that the
jury verdict of $750,000 for pain and suffering was
reasonable and should not be disturbed. Though Ermini’s
health and mental condition has improved over the past
decade, her previous and continued suffering, makes the
jury award appropriate.
58
Respondent Sherriff’s statement of the case.
59
Id. SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 14
Alcohol Defense
Section 768.36, of the Florida Statutes, which is part of
Florida’s negligence code, states that:
In any civil action, a plaintiff may not recover any
damages for loss or injury to his or her person or
property if the trier of fact finds that, at the time the
plaintiff was injured:
(a) The plaintiff was under the influence of any
alcoholic beverage or drug to the extent that the
plaintiff’s normal faculties were impaired or the plaintiff
had a blood or breath alcohol level of 0.08 percent or
higher; and
(b) As a result of the influence of such alcoholic
beverage or drug the plaintiff was more than 50 percent
at fault for his or her own harm.
In this case, at trial, the district court jury was instructed as to
this provision of Florida negligence law. Counsel for Sherriff
Scott, in its appeal, challenged the district court's jury
instructions and verdict-form entry pertaining to this defense.
Counsel argued that the Sherriff was entitled to a “new trial
because the district court improperly told the jury about the
legal effect of any finding under the alcohol defense—namely,
that if proved the defense would bar Ermini from recovering.
That information, he says, was unnecessary and was likely to
evoke sympathy for Ermini.”
60
The appellate court rejected
this argument finding that federal law (which controlled this
issue in the case) “doesn't preclude district court judges from
accurately informing jurors of the effects of their findings—in
either their instructions or their verdict forms.”
61
Further, the
court found that such instructions are permissible if done
impassively and accurately.
62
The jury in this matter considered Ermini to be 25 percent at
fault for her injuries as a result of her apparent intoxication on
the evening of March 23, 2012. This is well below the standard
of 50 percent in section 768.36, of the Florida Statutes.
60
Ermini v. Scott, 937 F.3d 1329, 1335 (11th Cir. 2019).
61
Id. at 1337.
62
Id. SPECIAL MASTER’S FINAL REPORT – SB 4
March 20, 2025
Page 15
Owing to Ermini’s blood alcohol level taken at the hospital
after the shooting and her apparent slow recognition and
confusion as to what was occurring in her home on that
evening, evidence here shows that Ermini is somewhat at
fault for her own injuries. However, far greater responsibility
in regards to Ermini’s injuries lies with the deputies’
negligence in conducting the wellness check that evening.
Thus, I concur with the finding of the jury and find that a
preponderance of the evidence shows that Ermini was 25
percent at fault for her injuries and Scott’s deputies’
negligence were 75 percent at fault for Ermini’s injuries,
through which Scott is vicariously liable in his official capacity
ATTORNEY FEES: Section 768.28(8), of the Florida Statutes, states that no
attorney may charge, demand, receive, or collect for services
rendered, fees in excess of 25 percent of any judgment or
settlement.
The Claimant’s attorney has submitted an affidavit to limit
attorney fees to 25 percent of the total amount awarded and
has not sought any attorney fees for her lobbying effort on
behalf of Ermini.
63
RECOMMENDATIONS: Based upon the foregoing, I recommend that SB 4 be
reported FAVORABLY.
Respectfully submitted,
Kurt Schrader
Senate Special Master
cc: Secretary of the Senate
63
Sworn Affidavit of Colleen J. MacAlister, November 27, 2023.