Potter vs. City of Dubuque_Partial Settlement and Release Copyright 2014
City of Dubuque Consent Items # 8.
ITEM TITLE: Potter vs. City of Dubuque
SUMMARY: City Attorney recommending approval of the Partial
Dismissal and Release in the suit of Suzanne Potter vs. the
City of Dubuque et al.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Reddick Letter Supporting Documentation
Release Supporting Documentation
Dismissal Supporting Documentation
THE CITY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
CITY ATTORNEY
To: Mayor Roy D. Buol and
Members of the City Council
DATE: December 22, 2015
RE: Suzanne Potter vs. City of Dubuque et al.
This lawsuit in the United States District Court for the Northern District of Iowa was
brought by Suzanne Potter against the City of Dubuque and Officer Murray making
claims of excessive force in effectuating her arrest and unlawful arrest. Officer Murray
slipped and fell on ice while attempting to arrest Potter which resulted in injuries to
Potter.
The parties have reached a tentative settlement of $25,000 subject to City Council
approval. Les Reddick's summary of the case is attached.
On the evening of December 30, 2013, Officer Murray attempted to arrest Potter for
burglary in the second degree for her entry into another's apartment. As he attempted to
handcuff her, his feet slid on snow/ice located between the pickup she was getting into
and the curb. When his feet slipped out from under her he pushed her into the side of
the pickup, causing her injuries. She was taken to the emergency room for treatment.
The County Attorney's Office dismissed the burglary charge.
Les is recommending settlement based upon what he believes is really a slip and fall
case in a public right of way. Potter has dismissed the excessive force claim. The
settlement amount is a fair and reasonable amount to settle a personal injury claim
based upon a fall in a public right-of-way, taking into account the risks and the
economics of a trial. In exchange for the settlement amount, Potter will execute a global
release of the City and its employees and dismiss with prejudice the remaining federal
lawsuit.
Attached is a Partial Dismissal and a Release.
I recommend City Council approval of the Partial Dismissal and the Release.
BAL:tIs
Attachment
cc: Michael C. Van Milligen, City Manager
Mark Dalsing, Chief of Police
Les Reddick, Esq.
F:\USERS\tsteckle\Lindahl\Hainer&Potter vs.City of Dubuque\Potter Suzanne\MayorCouncil_Settlement010416Agenda_122215.doc
KANE, NORBY& REDDICK, P.C.
ATTORNEYS
Brian J.Kane 2100 ASBURY ROAD,SUITE 2
Les V.Reddick* 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.Kane
Phone: (563)582-7980
All admitted in Iowa Facsimile: (563)582-5312
*Also admitted in Illinois E-mail:-Ireddick@kanenorbylawcom
**Also admitted in Wisconsin
December 22, 2015
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Mr. Barry A. Lindahl
City Attorney
Harbor View Place, Suite 330
300 Main Street
Dubuque, Iowa 52001-6944
RE: SUZANNE POTTER V. CITY OF DUBUQUE AND OFFICER JAY
MURRAY
Dear Barry:
This case is pending in the United States District Court for the Northern District of Iowa
and the parties have reached a tentative settlement of$25,000 subject to City Council approval.
Potter sued the City and Officer Murray making claims of(1) excessive force in effectuating her
arrest and (2) unlawful arrest.
BACKGROUND
Potter is a Dubuque resident whose 15 year old daughter ran away from home in late
December, 2013. Potter believed that her daughter was either staying with or being held by an
individual who lived on Bluff Street in an apartment. The Dubuque Police Department did
numerous checks over a 4-5 day period trying to assist Potter in locating her child.
On the evening of December 30, 2013, Potter, along with two adult males and an adult
daughter went to the apartment house on Bluff Street looking for her daughter. They were unable
to locate her in the building and the apartment's tenant and his son told police that Potter had
come into the apartment without consent and threatened physical harm if her daughter wasn't
produced. Potter went outside and was extremely agitated, which led to the police presence.
Officer Murray attempted to arrest Potter for burglary in the second degree for her entry into
another's apartment. As he attempted to handcuff her his feet slid on snow/ice located between
the pickup she was getting into and the curb. When his feet slipped out from under her he pushed
her into the side of the pickup and a flange protruding from a tool box on the truck slashed her
head open behind her right ear. She was taken to the emergency room where she needed twelve
stitches to repair the cut. The County Attorney's Office dismissed the burglary charge.
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SETTLEMENT
The settlement that is being recommended is based upon what is really a slip and fall case
in a public right of way. Potter has dismissed the excessive force claim,because I told her
attorney that we would not entertain any thoughts of settlement if it was to be in any way
construed as payment for excessive force. The officer in this case used no force at all,it was an j
accident and is being settled that way. The settlement amount is a fair and reasonable amount to
settle a personal injury claim based upon a fall in a public right-of-way,taking into account risks
and the economics of going forward in federal court. In exchange for the$25,000,Potter will
execute a global release of the City and its employees and dismiss with prejudice the remaining
federal lawsuit.
If you need any additional information please let me know.
Very truly yours,
KANE,NORBY&REDDICK,P.C.
By '
Les V. Reddick
LVR/'bmo
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GENERAL RELEASE
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The undersigned,-SUZANNE POTTER("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 Twenty-Five Thousand Dollars
($25,000.00), does fully release and forever discharge The City of Dubuque, Iowa, Jay
Murray, individually and as a Police Officer for the City of Dubuque, Iowa and all of its
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. (ARPCO), York Risk Services Group, Inc., York Risk Pooling
Services, Inc.,Public Entity Risk Services of Iowa(PERSI) (the"Released Parties")from
any and all liability for all claims arising before the date of this release, including the
incident that occurred on or about December 30, 2013, involving a slip and fall on Bluff
Street, Dubuque, Iowa. This Release of liability includes all common law, statutory, and
other causes of action, including damage claims of any sort, attorney's fees, and costs
which Claimant may have or claim to have as of the date of this Release.
2. Claimant is solely responsible for any and all tax liability related to 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 any action or proceeding that has been initiated or filed
related to the incident will be immediately dismissed with prejudice.
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5. This Release is executed as a compromise settlement of a disputed claim.
The Released Parties deny that they have done anything improper or illegal concerning the
incident described in this Release, and this Release does not constitute an admission of
liability on the part of any person or entity. No other promises have been made by the
Released Parties, or by any person or entity acting on their behalf. This Release covers all
injuries and damages whether presently known or not.
6. Claimant represents that she does not know of any person or entity that has
paid any amount on her behalf that would entitle anyone to recover as a lienholder or
subrogee of Claimant against the 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 the 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 that Medicare has not made any conditional payments on her behalf related to her
claims in this matter. 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 related to any injuries for which she is making a claim. Because no future
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Medicare-eligible expenses are anticipated, 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 shall include, without
limitation, any and all 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 alleged injuries and damages related to the incident
described in this Release.
10. It is the intent of Claimant and the Released Parties to end any dispute
between them pertaining to the matters described in this Release. This Release should be
broadly construed to achieve this intent. The terms, provisions, representations, and
remedies contained in this Release shall be enforceable to the fullest extent permitted by
law. If any term of this Release is found to be invalid or unenforceable, then such term
shall be construed in a manner permitting its enforcement to the fullest extent allowed by
the law. In any case,the remaining provisions of this Release other than those 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.
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CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING.
Suzanne Potter, Claimant
Date Claimant signed:
Witness
Date Witness Signed:
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
SUZANNE POTTER )
Case No.: 15-CV-1009
Plaintiff, )
VS. )
PARTIAL DISMISSAL
THE CITY OF DUBUQUE, IOWA; ) (COUNT I ONLY)
and JAY MURRAY,individually and )
as Police Officer for the City of )
Dubuque, Iowa, )
)
Defendants. )
COME NOW the Plaintiff, Suzanne Potter, by and through her attorney, pursuant to an
anticipated settlement in this matter, hereby dismisses Count I of her complaint regarding
excessive force against all Defendants in the above-captioned litigation.
Respectfixlly submitted,
DAVE O'BRIEN LAW
1500 Center Street NE
Cedar Rapids, Iowa 52402
Phone: (319) 861-3001
Fax: (319) 861-3007
E-Mail: dave@daveobrienlaw.com
By: ls/David A. O'Brien
David A. O'Brien AT0005870
ATTORNEY FOR PLAINTIFF
Original filed.
Case 2:15-cv-01009-JSS Document 9 Filed 12/18/15 Page 1 of 2
Copy to:
Les Reddick
Kane,Norby, &Reddick
2100 Asbury Road, Suite 2
Dubuque, IA 53001
ATTORNEY FOR DEFENDANTS
PROOF OF SERVICE
The undersigned certifies that the foregoing instr unent was served
upon all parties to the above cause or,in the event the party is
represented by counsel,to its counsel of record herein,at their
respective addresses disclosed on the pleadings,on the W day of
December,2015 by:
❑ U.S.Mail ❑ UPS/FedEx/Airbome Express
❑ Hand Delivery ❑ Certified Mail
❑ FAX ✓ ECF
Signature:/s/Katie "itman
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Case 2:15-cv-01009-JSS Document 9 Filed 12/18/15 Page 2 of 2