County attorney reports jury verdict to County Commission
On Feb. 25, 2020, a Sarasota County woman reported that she was walking on a sidewalk near the corner of Benevento Drive and Aviano Lane in the Isles of Sarasota, on Palmer Ranch, when she tripped, fell and “suffered serious injuries,” including head trauma and a laceration to her forehead.
Elizabeth Whalen claimed in a complaint filed in November 2020 in the 12thJudicial Circuit Court that Sarasota County was at fault, because one section of the sidewalk was higher than the other by about 1 inch. That segment previously had been ground down, but it had risen again because of growth of a root of a Southern live oak planted next to the sidewalk, as County Attorney Frederick “Rick” Elbrecht explained the incident to the County Commission in a March 30 memo.
Sarasota County Property Appraiser Office records show that Whalen lives in the Isles of Sarasota, not far from where the incident took place. She and her husband have owned their home on Fossano Drive since May 2017, the records note.
Ultimately, following a civil trial in late March, with Circuit Judge Hunter Carroll presiding, a jury agreed that the county was not negligent, Elbrecht reported to the county commissioners during their regular meeting on April 11.
However, he said, an appeal could be filed.
In a check of the case docket late in the afternoon of May 3, The Sarasota NewsLeader found no record of an appeal. The docket said the case file was closed on March 28.
Elizabeth Whalen “received medical treatment from [Sarasota Memorial Hospital] for a contusion and severe swelling around her eye,” Elbrecht continued in the memo. “She also suffered a laceration from her eyebrow up to her forehead.”
A CT scan showed normal results, Elbrecht added, so medical personnel used glue to close the laceration and sent Whalen home. She had one follow-up medical visit, he noted.
Altogether, Elbrecht wrote, her medical expenses added up to approximately $10,000, and she had “a permanent visible scar of approximately 3 inches.”
Staff of the Office of the County Attorney checked county work orders and determined that the sidewalk was repaired “at or near the trip location” in May 2019, about nine months before the incident occurred, Elbrecht added in his memo.
Nonetheless, in her Circuit Court case, Whalen’s original attorney — Michael T. Murphy of what was then the Mallard Law Firm in Sarasota — put her estimated claim for damages at $100,000, court records show. He added that “the actual value of [her] claim will be determined by a fair and just jury,” in accord with a section of the Florida Constitution.
Whalen also named the Isles of Sarasota as a defendant in the case.
She contended that the county was negligent because it failed to “use reasonable care in maintaining [the sidewalk] in a reasonably safe condition that would prevent it from being a dangerous and unsafe condition for business invitees,” the complaint said.
Because of that negligence, the complaint continued, she “suffered bodily injury, great physical pain and suffering, disability, inability and loss of capacity for the enjoyment of life, inconvenience, physical impairment, disfigurement, scarring, mental anguish, loss or diminution of earnings or earning capacity, aggravation of an existing disease or physical defect, permanent injury within a reasonable degree of medical probability, medical and related expenses in the past and in the future incurred in seeking a cure for her injuries.”
The complaint used the same language in the count involving the Isles of Sarasota.
The county’s answer to the claims and trial details
In the county’s Dec. 21, 2020 answer to the complaint, then-Deputy County Attorney Bora S. Kayan alleged that Whalen was negligent and that that “was the sole proximate cause of any alleged accident, injuries and damages [that she sustained]. In the alternative, [she] was negligent and such negligence was a contributing cause of any alleged accident,” the answer added.
In one of the county’s affirmative defenses, Kayan alleged that the state of the segment of sidewalk “was readily apparent and constituted an open and obvious condition .”
Moreover, Kayan pointed out that state law barred the complaint, “in whole or in part by the doctrine of sovereign immunity; including but not limited to, the immunity provisions of [Florida Statute] 768.28.”
As Cornell Law School’s Legal Information Institute explains, “Sovereign immunity was derived from British common law doctrine based on the idea that the King could do no wrong.”
“Further,” Kayan wrote, “the amount of damages that may be recoverable, if any, is limited by the terms and amounts as set forth in [that statute].”
On July 23, 2021, Whalen’s attorney filed a notice saying that Whalen was voluntarily dismissing the Isles of Sarasota Homeowners Association as a defendant in the case.
Both Whalen and the county demanded a jury trial.
Mediation took place in the case, the case docket shows. However, Robert G. Lyons of Sarasota, a certified mediator, wrote in an April 22, 2022 document that the parties were unable to reach an agreement.
The trial began on March 23 and ended on March 28, County Attorney Elbrecht wrote in his memo to the commissioners. Assistant County Attorneys Michael Polk and Marlo Sloan handled the case, he added.
Court records further indicate that Whalen’s original attorney, Murphy, did not participate in the trial. Instead, Whalen was represented by Elizete Velado and Courtney Flandreau of what is now the Mallard Perez law firm in Sarasota.
An expert master arborist who testified on behalf of Whalen explained that tree roots grow an average of a quarter of an inch in diameter each year; thus, the increase in height of the affected section of the sidewalk along Benevento Drive must have occurred over approximately three years, Elbrecht noted in the memo.
Whalen argued that the county had knowledge of the sidewalk issue, Elbrecht continued, so she also contended that county staff had “failed to inspect a known problem site” and had therefore “failed to protect its citizens.”
The assistant county attorneys argued that the county “is not an insurer against all risk, and it is logistically impossible to know of all conditions of the approximate thousand miles of County owned sidewalk at any given time. Rather,” they told the court, “it is reasonable to rely on the over 430,000 residents who routinely observe the sidewalks daily to report any issues to the County.”
Further, they pointed out, “In this case, there were no prior accidents or complaints regarding this section of sidewalk.”
Whalen’s attorneys asked the jury to award Whalen more than $80,000 in damages, Elbrecht wrote in his memo. After deliberating for about an hour, the jury returned a verdict in favor of the county.
Nonetheless, he noted, Whalen had 30 days from the court’s entering its final judgment in the case to file an appeal, though he added, “There does not appear to be any meritorious issues for appeal.”
As the prevailing party, Elbrecht added in his memo, the county is entitled to recover its litigation costs from Whalen.