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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 i 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. i 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 I� GENERAL RELEASE I 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. 1 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 2 i 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. 3 CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING. Suzanne Potter, Claimant Date Claimant signed: Witness Date Witness Signed: I 4 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 I 2 Case 2:15-cv-01009-JSS Document 9 Filed 12/18/15 Page 2 of 2