Fuller vs. City of Dubuque Settlement Copyright 2014
City of Dubuque Consent Items # 8.
ITEM TITLE: Fuller vs. City of Dubuque Settlement
SUMMARY: City Attorney recommending approval of a Partial Dismissal with Prejudice
and the Release related to Cheryl Fuller vs. City of Dubuque and Tina
Pimentel suit.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description Type
❑ Staff Memo Staff Memo
❑ Reddick Letter Supporting Documentation
❑ Partial Dismissal Supporting Documentation
❑ Release Supporting Documentation
THE CITY OF
DUB-�6 E MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
CITY ATTORNEY
To: Mayor Roy D. Buol and
Members of the City Council
DATE: October 27, 2015
RE: Fuller vs. City of Dubuque and Tina Pimentel
This is a personal injury lawsuit brought by Cheryl Fuller after she fractured some ribs
when she tripped on a public sidewalk on West Third Street next to property owned by
Tina Pimentel. The accident occurred on October 11, 2013.
Attorney Les Reddick participated in mediation of the case on behalf of the City on
October 20, 2015. Representatives of the Iowa Communities Assurance Pool (ICAP)
and Pimentel's insurance company were also present. The City and Ms. Fuller agreed
to a settlement of the claim against the City of $55,000.00, subject to City Council
approval. The property owner remains in the suit.
Attached is a Partial Dismissal with Prejudice and a Release.
I recommend City Council approval of the Partial Dismissal with Prejudice and the
Release.
BAL:tIs
Attachment
cc: Gus Psihoyos, City Engineer
Les Reddick, Esq.
F:\USERS\tsteckle\Lindahl\Fullervs. City(Trip&Fall)\MayorCouncil_Settlementll02l5Agenda_102715.doc
KANE,NORBY& REDDICK, P.C.
ATTORNEYS
Brian J.Kane 2100 ASBURY ROAD,SUITE 2
Les V.Roddick* DUBUQUE,IOWA 52001-3091
Brad J.Heying
Todd L.Stevenson* Retired:
Kevin T.Deeny** Gary K Norby
Bradley B.Kane
Joseph P.Kane
Nicholas J.Kase
Phone: (563)582-7980
All admitted in Iowa Facsimile: (563)582-5312
*Also admitted in Illinois E-mail:lreddick@kanenocbylaw.com
**Also admitted in Wisconsin
October 21, 2015
Mr. Barry A. Lindahl
City Attorney
Harbor View Place, Suite 330
300 Main Street
Dubuque, Iowa 52001-6944
RE: FULLER V. CITY OF DUBUQUE AND TINA PIMENTEL (ABUTTING
PROPERTY OWNER)
Dear Barry:
We mediated this case on October 20, 2015 and representatives of ICAP and Pimentel's
insurance company were present. The case against the City settled for $55,000.00. The property
owner remains in the suit and did not settle, yet.
This is a personal injury lawsuit brought by Cheryl Fuller after she fractured some ribs
when she tripped on a public sidewalk on West Third Street next to property owned by Tina
Pimentel. The accident occurred on October 11,2013.
The City of Dubuque has a duty by statute to maintain public sidewalks. The incident
report completed by the police officer who was on the scene at the time she fell says the sidewalk
was uneven. Photographs show the sidewalk was uneven and that there was grass growing
between the sidewalk slabs, which suggested that the condition of the sidewalk had been there
for some time. Based upon the information we have to date there was a defect in the public
sidewalk that exceeded the recommended height at which the City of Dubuque would have
required repair by the property owner had it known. After Fuller fell the City sent a notice to
Pimentel to repair the sidewalk and she did the repairs.
Plaintiff had a duty to keep a proper lookout and the incident report by the police officer
indicates that the area was "lit". The condition of the sidewalk was open and obvious and
Plaintiff could bear a percentage of fault for failing to see it. Fuller acknowledged in her
deposition that she had been over this area a couple times before and did not see anything about
the sidewalk that caused any safety concern for her. She said it was daylight at the time of her
fall, she had no problem seeing, her daughter crossed the same area directly ahead of her without
problems and she could see grass growing in between the concrete slabs. So the issue of proper
lookout remains a viable defense and Plaintiff could bear a percentage of fault for that. In
addition,the property owner could bear a percentage of fault for not maintaining the sidewalk.
Fuller's primary injury was two fractured ribs on the right side. She had open reduction
and internal fixation surgery for those two ribs and a plate and screws were placed to repair the
fractures. She developed a hematoma in the area where a chest tube was placed after the surgery
to allow drainage. There was an additional surgery performed to evacuate the hematoma. Fuller
had some bruising on her hands, but there were no fractures or injuries to the hands. She also had
a minor bruise on one knee. She recovered from the injuries with few residuals. Fuller is a
third-grade teacher in Maquoketa and missed about nine weeks of work after the fall.
Fuller's health carrier, Blue Cross, has paid medical bills totaling $38,124.93 for
treatment related to the fall. In addition Fuller missed 46 full days of work and is claiming lost
wages of$11,515.64.
I valued the potential verdict range in this case to be between $100,000 - $150,000. I
believe the settlement for $55,000.00 is fair given all risks and a potential judgment against the
City. It also reflects that the Plaintiff and property owner are responsible for the rest of the
damages for their fault.
Very truly yours,
KANE,NORBY&REDDICK, P.C.
By
Les V. Reddick
LVR:tlk
IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
CHERYL FULLER, )
Plaintiff, ) No. 01311 LACV102006
vs. )
TINA MEDEL PIMENTEL and )
THE CITY OF DUBUQUE(42-6004596W),)
Defendant. )
PARTIAL DISMISSAL WITH PREJUDICE
COMES NOW Plaintiff, Cheryl Fuller, and hereby dismisses with prejudice her claims
against Defendant, City of Dubuque in the above-captioned matter.
By
CHERYL FULLER, Plaintiff
By
Jeffrey L. Walters
Clemens Walters Conlon&Meyer LLP
2080 Southpark Court
Dubuque,IA 52003
ATTORNEY FOR PLAINTIFF
Copy via electronic mail to:
Les V. Reddick
KANE,NORBY&REDDICK,P.C.
2100 Asbury Road, Suite 2
Dubuque, IA 52001-3091
RELEASE
The undersigned, CHERYL FULLER ("Claimant") states:
1. The Claimant, individually and on behalf of her successors and assigns, in
consideration of the payment to her in the sum of Fifty-five Thousand Dollars ($55,000.00), does
hereby release, acquit and forever discharge the CITY OF DUBUQUE and all of its respective
employees, officers, directors, elected officials, and agents including all subsidiary, parent and
affiliate entities, the Iowa Communities Assurance Pool (ICAP), American Risk Pooling
Consultants, Inc., York Risk Services Group, Inc., York Risk Pooling Services, Inc., and Public
Entity Risk Services of Iowa (PERSI) ("the Released Parties") from any and all liability for all
claims or demands, all common law, statutory or every other cause of action which she may have
or claim to have for an incident occurring on October 11, 2013 and for which suit was brought as
LACV 102006 in the Iowa District Court in Dubuque County. Claimant reserves all claims against
Tina Medel Pimentel and nothing in the release shall be construed to release any such claims or
that any money paid by the City of Dubuque is for any fault of Tina Medel Pimentel.
2. Claimant is solely responsible for any and all tax liability respecting this payment
and will defend, indemnify, and hold harmless the Released Parties from any such tax liability.
3. Claimant recognizes that the Released Parties will comply with the Iowa Open
Records Act.
4. Claimant agrees to dismiss with prejudice the suit pending in Dubuque County as
Case No. 01311 LACV 102006 against the City of Dubuque.
5. This Release is executed as a compromise settlement of a disputed claim. The
Released Parties deny that they have done anything improper in regards to Claimant's employment
1
or termination of employment or the events preceding Claimant's termination. This Release does
not constitute an admission of liability on the part of any person,party or entity. No other promises
have been made by the Released Parties, or those acting on their behalf. This Release covers all
injuries whether presently known or not.
6. Claimant represents that she knows of no person or entity that has paid any amount
on her behalf for which any other person or entity may seek, claim, or attempt to recover as a
subrogee of Claimant against Released Parties. If such lienholder, subrogee, or any person/entity
with a third party interest exists, Claimant agrees to satisfy those third-party interests out of the
settlement proceeds and further agrees to defend, indemnify, and hold harmless the Released
Parties for any claims or interests that are asserted. Such indemnification shall include, without
limitation, any and all attorney fees, court costs, and any and all other costs and expenses.
Claimant further represents that she has not assigned her claim to any other person.
7. Claimant is executing this Release solely upon her own knowledge, belief and
judgment and not upon any representation made by Released Parties. Claimant acknowledges that
she has had the opportunity to consult with an attorney of her choice.
8. Claimant represents that she is not currently receiving Medicare benefits and
Medicare has not made any conditional payments on her behalf. Claimant has not and will not
apply for Social Security Disability benefits related to this incident. Claimant does not anticipate
any future Medicare-eligible expenses relative to any injuries suffered while an employee of
Released Parties. Because none of the parties anticipate any future Medicare-eligible expense, no
part of the settlement is being set aside for Medicare. Claimant agrees to defend, indemnify, and
hold harmless the Released Parties from any interest asserted by Medicare. Such indemnification
2
shall include, without limitation, any and al attorney fees, court costs, and any and all other costs
and expenses.
9. This Release constitutes the entire agreement between Claimant and the Released
Parties. It supersedes all prior Releases and understandings, whether oral or written, relating to
Claimant's complaint, charge, petition, claims, employment, or termination of employment.
10. It is the intent of Claimant and the Released Parties to end any dispute between
them. This Release should be broadly construed to achieve this intent. The terms, provisions,
covenants, and remedies contained in this Release shall be enforceable to the fullest extent
permitted by law. If any term of this Release shall be found to be invalid or unenforceable, then
such term shall be construed in a manner so as to permit its enforcement to the fullest extent
permitted by the law. In any case, the remaining provisions of this Release other than those to
which have been held invalid, illegal or unenforceable, shall not be affected or impaired and shall
remain in full force and effect. This Release will not be construed either in favor of one party or
against one party,but rather pursuant to the fair and reasonable interpretation of the language used.
CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING.
CHERYL FULLER, Claimant
Date signed:
Witness
3