Florida Power & Light Co. v. Goldberg

• Decision Date: 22 May 2002
• Docket Number: No. 3D00-63.,3D00-63.
• Citation: 856 So.2d 1011
• Parties: FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellant, v. Walter GOLDBERG, and Rosalie Joy Goldberg, as Co-Personal Representatives of the Estate of Jill Heather Goldberg, Deceased, Appellees.
• Court: Florida District Court of Appeals

856 So.2d 1011

FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellant, v. Walter GOLDBERG, and Rosalie Joy Goldberg, as Co-Personal Representatives of the Estate of Jill Heather Goldberg, Deceased, Appellees.

No. 3D00-63.

District Court of Appeal of Florida, Third District.

May 22, 2002.

Opinion Granting Rehearing October 1, 2003.

Hicks, Anderson & Kneale and Mark Hicks, Miami; FPL Law Department and Aimee Fried, for appellant.

Grossman & Roth; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel D. Eaton, Miami, for appellees.

Before COPE, GODERICH and SHEVIN, JJ.

Opinion Granting Rehearing En Banc October 1, 2003.

SHEVIN, Judge.

Florida Power and Light Company ["FPL"] appeals a final judgment and an order denying its motion for new trial in the Goldbergs' wrongful death action. We affirm the order denying new trial, but remit the awarded damages.

The trial court's order denying FPL's new trial motion fully sets out the facts and arguments justifying the denial of a new trial in this case. The order finds as follows:

FACTS

The defendant, Florida Power and Light, is a public utility in the business of supplying electric power throughout South Florida. It is undisputed that it has the obligation to maintain and repair power lines.

On August 19, 1997, Peter Lombardi, the Village of Pinecrest manager, contacted FPL and spoke with Greg Cope, the commercial account liaison between FPL and the Village. Mr. Lombardi requested that FPL, notify him when the power was going to be turned off, when it was "a planned outage where the company knew in advance they [sic] were going to turn off the power to effect some kind of repairs or maintenance to the system." (Tr. 148). Mr. Cope agreed to pass along the request to the department heads. On September 5, 1997, a week before the fatal accident involved here, Mr. Lombardi met with Mr. Cope and another FPL representative. Mr. Cope agreed to notify the Village of any outages "where FP & L would be turning off the power themselves." (Tr. 152). Based on these conversations and meetings, Mr. Lombardi expected "to be notified in the event that FP & L was going to be turning off power within the Village of Pinecrest." (Tr. 153).

On August 25, 1997, an FPL repairman, Ray Woodard, responded to a call at the residence of Donna Fishbein located at 6725 Southwest 122nd Drive, Miami, Florida. Thus, on the day of the accident, Mr. Woodard was aware that this location is a gated house with a wall surrounding the entire property.

On Friday, September 12, 1997, as a result of a storm, a high voltage electric line came down in the rear of the Fishbein residence. Donna Fishbein called 911. The Pinecrest Police Department sent Officer Laricci at approximately 2:00 p.m. The same repairman, Ray Woodard, also responded and was able to establish that the line was de-energized. FPL sent six trucks and seven repair people to repair the problem. At approximately 3:00 p.m., the FPL personnel informed Officer Laricci that he was no longer needed.

To insure the safety of the repairmen, they decided to open the fuse to a pole located 100 to 150 feet from the light that controls the intersection of 67th Avenue and 120th Street, one of the major intersections in the Village of Pinecrest. At 4:42 p.m., the defendant's employee opened the fuse and killed the power to the traffic signal. Mr. Woodard claimed not to know that the fuse controlled the traffic signal, but there was ample evidence that he should have known. At the base of the pole on the ground, there was a five foot concrete slab and in the middle, there was a metal plate with large letters reading "TRAFFIC SIGNAL." On the pole, eight feet off the ground, there was a gray metal box with a switch, which Mr. Woodard knew controlled the traffic light. As you climbed the pole, you could see the wires run from the pole to the traffic light.

Jill Goldberg was a passenger in a car driven by her mother, Rosalie Goldberg. They were driving home from the Falls. It was dusk and it was raining. The uncontroverted testimony was that Jill was a beautiful, twelve-year old, straight A student in the gifted program at Pinecrest Elementary. She had just started as a student at Palmetto Middle School.

Shortly after five p.m., Mrs. Goldberg was driving north on 67th Avenue following a line of cars, none of which were stopping at 120th Street. A Ford Expedition pulled out slowly, trying to find a gap in the line of traffic. The vehicle clipped the left rear of the Goldberg vehicle, causing it to rotate and slide in a northbound direction, into the southbound lane of travel. A Chevy Suburban ran into the passenger side of the Goldberg vehicle.

U.S. Attorney Thomas Scott was driving home when he heard the impact and pulled behind the two cars. He found Jill Goldberg wedged on the passenger side and Mrs. Goldberg dazed behind the steering wheel. After pulling out Mrs. Goldberg, Mr. Scott returned to Jill, who was bleeding from the mouth, her eyes open, alive and conscious. He kept her head up to prevent choking, and waited for Fire Rescue, staying until Jill was airlifted to the trauma center at Jackson Memorial Hospital. She died the next day.

The plaintiffs, Walter Goldberg and Rosalie Goldberg as personal representatives of the Estate of Jill Goldberg, filed a complaint for wrongful death and negligence. After a week-long trial, the jury awarded the plaintiffs approximately $37 million in damages. The defendant improperly contacted three of the jurors, including the foreman, in an apparent effort to find fault with the verdict. The Third District issued a writ of certiorari preventing the plaintiff from conducting discovery on this impropriety.

Defendant's Motion for Judgment in Accordance with Motion for Directed Verdict

A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party. Ameriseal of N.E. Fla., Inc. v. Leiffer, 24 Fla. L. Weekly D1685 (Fla. 5th DCA July 16, 1999). In Warshall v. Price, 629 So.2d 903, 904 n. 2 (Fla. 4th DCA 1993), the court stated:

A trial court may properly direct a verdict only when, viewing the evidence (and all reasonable inferences which could be drawn therefrom) in the light most favorable to the non-movant, there is no room for reasonable minds to differ and the movant is clearly entitled to judgment as a matter of law.

Duty

Defendant argues, as it has throughout these proceedings, that it owes no duty to the general public under the common law for traffic signals which are rendered inoperable. Defendant further argues no contractual duty exists with the Village of Pinecrest because the traffic signal was inadvertently de-energized during the performance of an emergency restoration work and not during a scheduled power outage which was the subject of the agreement.

Plaintiffs argued that the defendant had assumed a common law tort duty to motorists as a result of the agreement with the Village of Pinecrest to notify them of scheduled power outages. Taking the evidence in the light most favorable to the plaintiff, there was evidence to support a finding that the signal was turned off by disregarding a lid that read in large letters "TRAFFIC SIGNAL." Furthermore, the line fed directly into the intersection, arguably visible to the defendant's repairman.

The element of duty in negligence focuses on whether a defendant's actions created a foreseeable zone of risk that poses a general threat of harm to others. McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992). The issue of duty is an issue of law. Id. Once it is established that a duty does exist, only then does the issue of proximate cause become relevant. Florida Power & Light Co. v. Periera, 705 So.2d 1359, 1361 (Fla.1998). "The issue of proximate cause is generally a question of fact." Id. As McCain stated, duty "is a minimal threshold legal requirement for opening the courthouse doors, whereas [proximate cause] is part of a much more specific factual requirement that must be proved to win the case once the courthouse doors are open." 593 So.2d at 502. (footnote omitted).

One who undertakes to act, even when under no obligation to do so, must perform in accordance with a duty to exercise reasonable care. Union Park Mem'l Chapel v. Hunt[Hutt], 670 So.2d 64, 67 (Fla.1996); Priester v. Grand Aerie of the Fraternal Order of Eagles, Inc., 688 So.2d 376, 378 (Fla. 3d DCA 1997). This voluntary undertaking to do an act that might increase a risk of harm to others confers such a duty because it creates a foreseeable zone of risk. Union Park Metn't[Mem'l] Chapel v. Hutt, 670 So.2d at 67.

Another way of framing the issue of duty is to ask whether a defendant stood in a relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiffs' benefit. Palm Beach-Broward Med. Imaging Or.[Cr.] Inc. v. Continental Grain Co., 715 So.2d 343, 344 (Fla. 4th DCA 1998). Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon a defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses, Kaiser[Kaisner] v. Kolb, 543 So.2d 732, 735 (Fla.1989).

The leading case regarding a duty of a public utility based on common law tort is H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928), authored by Chief Justice Cardozo. The court held that a failure of a utility to supply adequate water is not a wrongdoing but at most is a denial of a benefit. Id. at 898. The Moch court explained that a duty can be gratuitously assumed. Such a duty arises "if the conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively working an injury." Id. In other words, the utility must have such a relationship with

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