Rehab. Ctr. at Hollywood Hills, LLC v. Fla. Power & Light Co.

• Decision Date: 20 May 2020
• Docket Number: No. 4D19-1787,No. 4D19-1786,4D19-1786
• Citation: 299 So.3d 16
• Parties: REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC, Appellant, v. FLORIDA POWER & LIGHT COMPANY and Hollywood Property Investments, LLC, Appellees. Christine Cooper, Appellant, v. Florida Power & Light Company and Hollywood Property Investments, LLC, Appellees.
• Court: Florida District Court of Appeals

299 So.3d 16

REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC, Appellant,

v.FLORIDA POWER & LIGHT COMPANY and Hollywood Property Investments, LLC, Appellees.

Christine Cooper, Appellant,

v.Florida Power & Light Company and Hollywood Property Investments, LLC, Appellees.

No. 4D19-1786

No. 4D19-1787

District Court of Appeal of Florida, Fourth District.

[May 20, 2020]

Julie W. Allison of Julie W. Allison, P.A., Hollywood, and Dorothy F. Easley of Easley Appellate Practice PLLC, Miami, for appellant Rehabilitation Center at Hollywood Hills, LLC.

Scott P. Schlesinger and Jeffrey L. Haberman of Schlesinger Law Offices, P.A., Fort Lauderdale, and Philip M. Burlington and Adam Richardson of Burlington & Rockenbach, P.A., West Palm Beach, for appellant Christine Cooper.

Eric Hoecker of Florida Power & Light Co., Juno Beach, and Stuart H. Singer and Evan Ezray of Boies Schiller Flexner LLP, Fort Lauderdale, and Luis Suarez and Mark Heise of Boies Schiller Flexner LLP, Miami, for appellee Florida Power & Light Co.

Warner, J.

In consolidated cases, Rehabilitation Center of Hollywood Hills, LLC and Christine Cooper, a resident of the Center, appeal the trial court's order of dismissal of Cooper's complaint against Florida Power & Light for negligence and strict liability.¹ Cooper sued both FPL and the Center, alleging that after Hurricane Irma, FPL's failure to restore power to the Center caused injuries to her. FPL moved to dismiss, arguing that it did not owe a duty to provide a continuous supply of electricity to the resident of the nursing home, because she was a member of the general public. FPL also argued that liability was precluded by its tariff provisions with the Public Service Commission. The trial court granted the motion and dismissed the complaint, agreeing that the tariff precluded liability and that FPL owed no common law duty to the nursing home residents. We affirm, as we agree with the trial court that FPL owes no common law duty to the general public to provide and maintain electrical service. Because there is no duty, we do not reach the question of whether the tariff precludes liability.

The sufficiency of a complaint is a matter of law and dismissal of a complaint is reviewable by the de novo standard. See Siegle v. Progressive Consumers Ins. Co. , 819 So. 2d 732, 734 (Fla. 2002). In reviewing a motion to dismiss, the appellate court's "gaze is limited to the four corners of the complaint." Goodall v. Whispering Woods Ctr., LLC, 990 So. 2d 695 (Fla. 4th DCA 2008). We therefore glean the facts from those allegations of the complaint directed at FPL.

Cooper was a resident of the Center, a skilled nursing facility, located in Broward County, Florida, when Hurricane Irma hit South Florida on Sunday, September 10, 2017. The Center lost power, and the air-conditioning system failed. While it regained some electricity, there was no power for air-conditioning and the Center did not have a generator to power the air-conditioning system. Despite the Center's assurances to appellant's relatives that appellant would receive the proper care, the residents were kept in sweltering conditions.

On Wednesday, September 13th, after three days without power, someone placed a 911 call to report that a resident of the nursing home was in cardiac distress. Emergency personnel responded and discovered dozens of elderly residents suffering in the heat. Many residents had died.

The complaint alleged that FPL bears responsibility as well as the Center, stating, "FPL knew the grave situation that Rehabilitation Center residents were made to endure. Yet FPL failed to repair the power lines in time. FPL's negligent and reckless conduct caused death and serious injuries to Rehabilitation Center residents."

In Count VII of the complaint (the only count against FPL), Cooper alleged that "FP&L[ ] owed a general duty to the public, including Cooper, to exercise a high degree of care in the operation and maintenance of its power lines and power grid."

Cooper alleged that FPL violated its duty in the following respects:

a. Failure to have the appropriate policies and procedures in place as the sole power company servicing South Florida;

b. Failure to have an appropriate plan in place in the event of a natural disaster;

c. Failure to maintain in proper working order, its powerlines and power grids;

d. Failure to adequately and sufficiently trim trees in advance in order to prepare for the foreseeable hurricane event, resulting in obstructed, downed or damaged power equipment which further [d]elayed the restoration of power;

e. Failure to respond timely to an emergent situation;

f. Failure to make repairs in a timely fashion;

g. Failure to have sufficient personnel;

h. Failure to perform routine inspections of its facilities; and

i. Failure to comply with applicable federal and local safety standards.

Cooper alleged no facts to show how these various negligent acts or omissions contributed to the continued loss of power to the air-conditioning system. The complaint alleged that these breaches of duty "were a willful and wanton disregard of the rights of Christine Cooper and constituted outrageous behavior." She claimed damages for bodily injury and emotional distress.

FPL moved to dismiss the complaint on two bases: 1) its Tariff provisions precluded liability, and 2) that FPL does not owe a generalized duty to the public to provide continuous electricity after a hurricane.

As to the duty issue, FPL argued that it owed no duty to Cooper to provide continuous electricity after the hurricane. It was not an insurer of the general public's welfare. Similarly, FPL also claimed that it owed no generalized duty to the public to provide continuous electric service, as it was not an insurer of electricity. Florida case law has not imposed such a duty owed to the general public. Noting that most cases regarding FPL's duty arose from accidents at non-functioning traffic lights due to power outages, FPL characterized Cooper's claim as one to maintain the flow of electricity to the general public.

Cooper opposed the motion to dismiss the complaint, contending that FPL owed a duty to her under the "undertaker doctrine" which requires that any service taken for the benefit of another be performed with reasonable care. In reply, FPL argued that appellant failed to plead an undertaking by FPL as to her and only pleaded a generalized duty.

After a hearing on the motion, the trial court entered an order of dismissal as to FPL. The court ruled that FPL owed no common law duty to the residents of the rehabilitation center, citing numerous cases which hold that power companies do not owe a duty of care to the general public for power outages. Both Cooper and the Center appeal the dismissal.

The existence of a duty of care in a negligence action is a question of law. See Goldberg v. Fla. Power & Light Co. , 899 So. 2d 1105, 1110 (Fla. 2005) (citing McCain v. Fla. Power Corp. , 593 So. 2d 500, 502 (Fla. 1992) ). Whether a duty of care exists is to be determined solely by the court. L.A. Fitness Int'l, LLC v. Mayer , 980 So. 2d 550, 557 (Fla. 4th DCA 2008) ; Marriott Int'l, Inc. v. Perez-Melendez , 855 So. 2d 624, 628 (Fla. 5th DCA 2003).

The principle of "duty" is linked to the concept of foreseeability and may arise from four general sources:

(1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.

Clay Elec. Coop., Inc. v. Johnson , 873 So. 2d 1182, 1185 (Fla. 2003) (quoting McCain v. Fla. Power Corp. , 593 So. 2d 500, 503 n.2 (Fla.1992). "The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others." McCain, 593 So. 2d at 502. It must be an "unreasonable risk" of harm caused by defendant's conduct, however. Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983). And the risk must be created by the defendant's conduct which the defendant thus has the ability to control. See Surloff v. Regions Bank , 179 So. 3d 472, 475 (Fla. 4th DCA 2015) ; Aguila v. Hilton, Inc. , 878 So. 2d 392, 396 (Fla. 1st DCA 2004).

As the trial court noted, Cooper's complaint alleges that FPL had a general duty to the public to maintain and operate the electric grid so that power is supplied. But in this case, by accepting Cooper's allegation of duty, the "zone of risk" would encompass the entire population of persons and property for which electricity is supplied. We do not think it is foreseeable that the failure to restore electricity poses an "unreasonable" risk of harm to the entire population. We have found no case holding that a utility owes a general duty to the public or noncustomer for a continuous supply of power. Indeed, the few cases which have touched on the issue have all determined that no such duty exists. See Arenado v. Fla. Power & Light Co. , 523 So. 2d 628, 629 (Fla. 4th DCA 1988), rev. dismissed , 541 So. 2d 612 (Fla. 1989) (holding utility did not assume duty to general public to supply electricity to traffic lights); Levy v. Fla. Power & Light Co. , 798 So. 2d 778 (Fla. 4th DCA 2001) (finding utility owed no duty to noncustomer to restore power to traffic light before accident and injury occurred), Strauss v. Belle Realty Co. , 65 N.Y. 2d 399, 482 N.E. 2d 34, 492 N.Y.S. 2d 555 (1985) (holding utility company owed no duty to noncustomer tenant injured in a fall in the common area of apartment building for negligent failure to restore power after a power outage). Such a duty would make a utility an insurer of the supply of electricity. Even Cooper and the Center concede that FPL is not an insurer of electricity.

Cases finding a duty on the part of the power company to third persons focus on an immediate danger which the power company created by its acts. In particular, the most common "zone[s] of risk" are the electrified power lines...