STORAGE NAME: h6503c.JDC
DATE: 3/24/2021
March 24, 2021
SPECIAL MASTER’S FINAL REPORT
The Honorable Chris Sprowls
Speaker, The Florida House of Representatives
Suite 420, The Capitol
Tallahassee, Florida 32399-1300
Re: CS/HB 6503 - Representative Rodriguez
Relief/Emilio Jesus Vizcaino-Aday/Miami-Dade County
THIS IS AN EXCESS JUDGMENT CLAIM FOR $350,000
BASED ON A SETTLEMENT AGREEMENT BETWEEN
THE ESTATE OF EMILIO JESUS VIZCAINO-ADAY AND
MIAMI-DADE COUNTY, RELATING TO THE
WRONGFUL DEATH OF EMILIO JESUS VIZCAINO-
ADAY DUE TO THE COUNTY’S NEGLIGENCE. THE
COUNTY HAS PAID $300,000 PURSUANT TO S. 768.28,
F.S.
FINDINGS OF FACT: On March 6, 2018, at approximately 1:30 a.m., Emilio
Jesus Vizcaino-Aday was traveling southbound on SW 147
Avenue in Miami-Dade County on his way to work. Officer
John Young Song, a three-year veteran of the Miami-Dade
Police Department was on duty, driving a marked patrol car
westbound on SW 260 Street, with a police trainee in the
front passenger seat. Earlier in the shift, officers had been
advised to be on the lookout for two vehicles that had been
stolen during a residential burglary. Officer Song, in pursuit
of what he believed to be one of the stolen vehicles,
traveled without lights and siren activated and approached
the intersection of SW 260 Street and SW 147 Avenue
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traveling at least 86 mph. Officer Song disregarded a stop
sign for westbound traffic, and entered the intersection at
speeds well above the 40 mph speed limit. The front of
Officer Song’s patrol car struck Mr. Vizcaino-Aday’s driver’s
door. Mr. Vizcaino-Aday died in the drivers’ seat from the
force of the impact.1 Both officers were airlifted to Jackson
Memorial Hospital Ryder Trauma Center in stable condition
and released later that day.2
Detective Marc J. Martinez with Miami-Dade Police
Department’s (MDPD) Traffic Homicide Unit conducted an
investigation, arriving on scene shortly after the crash.
Detective Martinez noted that it was dark outside and the
street was not illuminated. The weather was clear and dry.
SW 147 Avenue is a north/south undivided, two-lane
roadway that travels through a rural area of Miami-Dade
County, with a posted 40 mph speed limit. SW 147 Avenue
is a through street at its intersection with SW 260 Street.
SW 260 Street is an east/west undivided, two-lane
roadway. A 40 mph speed limit is in effect. SW 260 Street
is controlled east and west by posted stop signs.3 The stop
sign at the intersection of SW 147 Avenue and SW 260
Street was clearly visible.
Detective Martinez determined that both vehicles rotated
before reaching their final rest in a plant nursery located off
the roadway.4 A Momentum Speed Reconstruction of the
crash revealed that a minimum impact speed of 68 mph
was obtained for Officer Song’s patrol car and a minimum
impact speed of 31 mph was obtained for Claimant’s
vehicle.
Officer Song was charged with Vehicular
Homicide/Reckless Manner.5 Florida Reconstruction LLC,
was hired by the Office of the Miami-Dade State Attorney,
to assist in the criminal prosecution of Officer Song. Its
owner, Bill Wright, reviewed MDPD’s Traffic Homicide Unit
Report, along with other reports and memorandums
prepared by members of MDPD. Mr. Wright concluded his
investigation with a report of his own.6 His report indicates
that MDPD determined that Officer Song was traveling in
excess of the speed limit without his lights and siren
1 Mr. Vizcaino-Aday was wearing his seat belt at the time of the crash.
2 Miami-Dade Police Department Traffic Homicide Unit Report, Case No.: PD180305086170 at 2.
3 Id. at 2-3.
4 Id. at 3.
5 Id. at 6.
6 Bill Wright Florida Reconstruction L.L.C. Report concerning State of Florida v. John Song, dated July 17,
2019.
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activated. Officer Song was not interviewed due to his
pending criminal prosecution and his trainee, Officer Cesar
Echaverry, claimed no recollection of the crash or the
events leading up to it.7 Mr. Wright agreed with MDPD’s
estimation of “at impact” speeds of both vehicles. He also
reviewed the Event Data Recorder (EDR)8 from Officer
Song’s patrol car.9 Mr. Wright noted that Officer Song’s
patrol car was being slowed at the time the 86 mph speed
was recorded, thus, he reasoned the patrol car’s maximum
speed was greater than 86 mph.10
As part of Officer Song’s criminal prosecution, depositions
were taken. Detective Monica Herrera testified that she had
been following Officer Song’s vehicle before being caught
at a red light on SW 260 Street. Once the light turned green,
she proceeded and came upon the crash scene near the
intersection of SW 260 Street and SW 147 Avenue. 11
Detective Herrera testified that neither she nor Officer Song
had their emergency equipment activated prior to the
crash.12 Finally, she described the area as rural, “very dark,
full of nurseries, plants, and . . . no lighting.”13
LITIGATION HISTORY: Civil Suit
On July 18, 2019, Alin Avalos and Neisis Zavala, as Co-
Personal Representatives of the Estate of Emilio Jesus
Vizcaino-Aday (Claimant) filed a wrongful death action
against the Miami-Dade County Board of County
Commissioners and Miami-Dade County (Respondent)
and John Y. Song.
During discovery, the County responded to Claimant’s
Request for Admissions with admissions that Officer Song
did not have his emergency lights and siren activated; that
he was traveling in excess of the speed limit; and that he
failed to stop at a properly placed stop sign at the
intersection of the crash.
7 Id. at 5.
8 The EDR is a device installed in a motor vehicle to record technical vehicle and occupant information for a
brief period of time (typically seconds) before, during and after a crash. Research & Data, Event Data
Recorder, https://www.nhtsa.gov/research-data/event-data-recorder (last visited Feb. 2, 2021). Thus, the EDR
can be likened to a plane’s black box. The EDR in this matter recorded data about the crash, including the
speed of the patrol car and braking. There is no evidence in the record that the vehicle driven by Mr. Vizcaino-
Aday was equipped with an EDR, or if it was, that it was analyzed.
9 Bill Wright Florida Reconstruction L.L.C. Report at 2.
10 Id. at 3.
11 Herrera Dep. 15:1-15:10, 17:18-17:24, February 6, 2020.
12 Id. at 19. Officer Cesar Echaverry was also deposed but testified he had no memory as to whether Officer
Song activated his lights and siren prior to the crash. (Echaverry Dep. 12:12-12:17, February 6, 2020.)
13 Id. at 33.
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Claimant amended its complaint twice before the parties
entered into a stipulated settlement agreement in which
Respondent agreed to pay a total of $650,000. The
settlement acknowledged the $300,00014 sovereign
immunity cap. Respondent therefore agreed to pay
$300,000 and support a claim bill for the remaining
$350,000.15 The court was provided with a notice of
settlement and entered an order of dismissal.
Criminal Prosecution of Officer John Young Song
On November 14, 2018, Officer John Young Song was
arrested and charged with vehicular homicide, a second
degree felony, as a result of the collision. The case remains
pending before the Circuit Court in Miami-Dade County.
CLAIMANT’S POSITION: Claimant seeks to recover $350,000, the remainder of the
settlement against Miami-Dade County.
RESPONDENT’S POSITION: Respondent indicates this is an agreed-upon claim bill that
is the result of a settlement reached post-mediation and
that the facts of events that transpired on March 6, 2018
are undisputed.16,17
CONCLUSIONS OF LAW: Regardless of whether there is a jury verdict or settlement,
each claim bill is reviewed de novo in light of the elements
of negligence.
Duty & Breach
The driver of a vehicle has a duty to take reasonable care
and to follow all applicable laws to prevent injury to others
within the vehicle’s path.
Section 316.126(3), F.S. (2018), provides that an
“authorized emergency vehicle, when en route to meet an
existing emergency, shall warn all other vehicular traffic
along the emergency route by an audible signal, siren . . .
14 Pursuant to s. 768.28(5), F.S. (2018), the $300,000 cap applied because of damage sustained to the plant
nursery as part of this incident.
15 Under s. 768.28(5), F.S. (2018), any liability of a governmental entity exceeding $300,000 per incident can
be paid only as directed by the Legislature through a claim bill.
16 At the Special Master hearing, the County established that Ms. Avalos and Mr. Vizcaino-Aday had been
separated for a few months leading up to the date of the crash. Although they were separated, Ms. Avalos
testified that they were still talking daily, seeing each other, trying to reconcile, and never spoke of divorce.
17 At the Special Master hearing, the County explained that it had taken the position that Officer Song’s
excessive speed, without the use of lights and siren while running a stop sign constituted “wanton and willful
disregard of human rights” and as such, under s. 768.28(9), F.S., the County should not be liable for his
actions. Despite raising this legal argument, the County maintained that in the best interests of all parties, it
reached a settlement with the Claimant, has agreed to this claim bill, and will not contest it.
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or by a visible signal by the use of displayed blue or red
lights.” That section also requires that the emergency
vehicle proceed “in a manner consistent with the laws
regulating vehicular traffic….”18 Thus, Officer Song had a
duty to use his lights or siren and not exceed the speed
limit.19 There is undisputed evidence that Officer Song was
traveling without his lights and siren activated. As a result,
the motoring public traveling in that rural, dark area,
including Emilio Jesus Vizcaino-Aday, was unaware that
Officer Song was approaching at speeds in excess of 80
mph. Officer Song’s excessive speed was inconsistent with
the laws regulating vehicular traffic. Officer Song breached
his duty when he failed to activate his emergency
equipment leaving Mr. Vizcaino-Aday with no way of
knowing he was approaching at over 80 mph.20 When
Officer Song breached this duty, he was driving a marked
Miami-Dade Police Department patrol car as a Miami-Dade
county employee on duty. Thus, Respondent is liable for
Officer Song’s actions under the doctrine of respondeat
superior.21
Section 316.183(1), F.S. (2018), requires that a person
operating a vehicle not drive the vehicle “at a speed greater
than is reasonable and prudent under the conditions and
having regard to the actual and potential hazards then
existing.” At the time of the collision, the speed limit on SW
260 Street was 40 mph; Officer Song was traveling over 80
mph. Officer Song breached his duty when he proceeded
through the intersection, exceeding the posted speed limit.
When Officer Song breached this duty, he was driving a
marked Miami-Dade Police Department patrol car as a
Miami-Dade county employee on duty. Thus, Respondent
is liable for Officer Song’s actions under the doctrine of
respondeat superior.
Section 316.123(2)(a), F.S. (2018), requires every driver
approaching a stop sign at an intersection to stop and, after
stopping, to yield the right of way to any vehicle in the
18 S. 316.126(5), F.S. (2018).
19 See also Bryant v. City of Tampa, 100 So.2d 665 (Fla. 2d DCA 1958) (holding that police officer who
exceeded the speed limit while pursuing another vehicle without his light or siren activated constituted prima
facie negligence on the part of the defendant city).
20 See Franklin v. Dade County, 230 So.2d 730 (Fla. 1970) (reversing directed verdict for the County and
holding that evidence raised a jury question as to the county’s negligence in respect to operation of patrol car
in emergency action in nature of high speed chase on cross street without slowing down for stop sign and
without activating lights and siren).
21 The common law doctrine of respondeat superior provides that an employer may be held liable for the
actions of its employee if the employee was acting within the scope of his employment when he committed
the tortious act. This doctrine extends to negligent acts occurring within the sc