Vendola v. Southern Bell Tel. and Tel. Co.

• Decision Date: 26 June 1985
• Docket Number: 84-488,Nos. 83-2766,s. 83-2766
• Citation: 474 So.2d 275,10 Fla. L. Weekly 1589
• Parties: 10 Fla. L. Weekly 1589, 10 Fla. L. Weekly 2122 Mildred Louise VENDOLA and Joseph Vendola, as personal representatives of the Estate of Joseph S. Vendola, Jr., deceased, Appellants, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 275

474 So.2d 275

10 Fla. L. Weekly 1589, 10 Fla. L. Weekly 2122

Mildred Louise VENDOLA and Joseph Vendola, as personal representatives of the Estate of Joseph S. Vendola, Jr., deceased, Appellants, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellee.

Nos. 83-2766, 84-488.

District Court of Appeal of Florida Fourth District.

June 26, 1985.

Rehearing Granted Sept. 11, 1985.

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellants.

John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellee.

YAWN, THERON A., Jr., Associate Judge.

This is a wrongful death action by appellants as personal representatives of the estate of their deceased son. They challenge an adverse jury verdict and seek reversal of an order denying their motion for a new trial and a judgment taxing costs against them individually.

We attempt to dispel the confusion generated by two defenses, more accurately characterized as non-defenses, interposed by Southern Bell Telephone and Telegraph Company (Southern Bell), appellee and defendant below, between it and the charge of negligence leveled by appellants. One has been referred to as the "tariff defense"; the other as the "suicide defense." Neither is relevant to the case. Their irrelevance notwithstanding, defense counsel devoted the major portion of his final argument to discussing, analyzing and presenting them to the jury as reasons for acquitting Southern Bell of the charge of negligence. The jury obliged. We do not impute impurity to Southern Bell's motives for asserting these defenses but their lack of support in law or fact becomes obvious upon close examination. We begin that examination with a review of the relevant evidence.

On Sunday, July 8, 1979, 19 year old Joseph Vendola, Jr., (Vendola) lay on the floor of his brother's bedroom wounded in the abdomen by a gunshot of undetermined origin. At 12:23 P.M. he dialed the Broward County Sheriff's Office on the emergency number, 911, and uttered the words "Ambulance. Quick." Unable to say more, he lay moaning into the receiver of the uncradled telephone until his death, shortly before 2:10 P.M. The Sheriff's Office immediately telephoned Southern Bell requesting that the call be traced to ascertain its origin and provide an address to The Sheriff's request was followed by an incredible succession of blunders by Southern Bell spanning almost two hours before the call was correctly traced and the proper address provided. By then Vendola's girlfriend had discovered him and provided the Sheriff's Office with the correct address over the still open telephone line. Paramedics arrived within minutes after being dispatched. Vendola was dead.

which aid could be dispatched. Standard, detailed, and often used procedures had been established to implement the 911 service which Southern Bell had contracted to provide Broward County under the "Florida Emergency Telephone Act," section 365.171, Florida Statutes (1983). They were attempted, but this time they didn't work.

It was appellants' position that Southern Bell's negligent failure to correctly trace the call denied their son the treatment necessary to save his life and was therefore the proximate cause of his death.

Expert, although disputed, testimony was presented at trial to the effect that Vendola's life was salvageable had he received medical treatment within the hour immediately following the shooting, and perhaps longer.

TARIFF DEFENSE

The first defense was that the general subscribers tariff agreement between the Florida Public Service Commission and the state's telephone companies relieved it of any duty to Vendola.

The trial court admitted the tariff in evidence over appellants' objections, denied their motion for directed verdict on the tariff defense, refused appellants' request to instruct the jury that Southern Bell owed Vendola a duty to exercise reasonable care as a matter of law, and submitted to the jury the question of whether Southern Bell owed any legal duty to Vendola. Each of these rulings was error.

The applicable provision of the tariff is as follows:

This service is offered solely as an aid in handling assistance calls in connection with fire, police, and other emergencies and does not create any relationship or obligation, direct or indirect, to any person other than the customer contracting for 911 service. In the event of any interruption of the service, the Telephone Company shall not be liable to any person, corporation or other entity for any loss or damage in an amount greater than an amount equal to the pro rata allowance of the tariff rate for the service of facilities provided to the customer for the time such interruption continues, after notice to the Telephone Company. No allowance shall be made if the interruption is due to the negligence or willful act of the customer of the service. Further, each customer agrees to release, indemnify, defend and hold harmless the Telephone Company from any and all loss, claims, demands, suits or other action, or any liability whatsoever, whether suffered, made, instituted or asserted by the Customer or by any other party or person, for any person injury to or death of any person or persons, or for any loss, damage or destruction of any property, whether owned by the Customer or others, or for any infringement or invasion of the right of privacy of any person or persons, caused or claimed to have been caused, directly or indirectly, by the installation, operation, failure to operate, maintenance, removal, presence, condition, location or use of "911" service features and the equipment associated therewith, or by any services which are or may be furnished by the Telephone Company in connection therewith, including but not limited to the identification of the telephone number, address or name associated with the telephone used by the party or parties accessing "911" service hereunder, and which arise out of the negligence or other wrongful act of the Telephone Company, the Customer, its user agencies or municipalities or employees or agents of any one of them. (Section A 24.1.2g General Subscribers In our view, reliance upon the tariff as an exculpatory shield from tort liability is misplaced and the arguments imputing that effect to it completely miss the point. Analysis reveals that it is divisible into three distinct parts, each having a different objective, none of which is the exoneration of Southern Bell from liability for its torts.

Service Tariff Emergency Reporting Service). (The underlining is not supplied for emphasis but to facilitate identification of the tariff's three parts.)

The first is a statement of the purpose for which the 911 emergency service is offered and disclaims the creation of any relationship or obligation to any person other than the customer--in this case Broward County.

The middle part is a limitation upon damages collectible by the customer caused by any interruption of service.

The last part, and most significant, is an agreement by the customer to indemnify and hold harmless the telephone company from all liability whatsoever to any other person in an exhaustive assortment of circumstances, including, but by no means limited to, the death of another caused by the telephone company's negligence. This transfer to the customer of ultimate liability is in itself a tacit recognition of the company's amenability for its torts.

In final argument, Southern Bell's counsel, not the Court, took it upon himself to instruct the jury that "The general services tariff ... has the force and effect of law between these parties for services arising thereunder." This is a correct statement of law in those cases to which it is applicable. Carter v. American Telephone & Telegraph Company, 365 F.2d 486 (5th Cir.1966), cert. denied, 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); American Telephone & Telegraph Company v. Florida-Texas Freight, Inc., 357 F.Supp. 977 (S.D.Fla.1973); Maddalena v. Southern Bell Telephone & Telegraph Company, 382 So.2d 1246 (Fla. 4th DCA 1980); Wilkinson v. New England Telephone & Telegraph Company, 97 N.E.2d 413 (Mass.1951); Warner v. Southwestern Bell Telephone Company, 428 S.W.2d 596 (Mo.1968); Russ v. Western Union Telephone Company, 222 N.C. 504, 23 S.E.2d 681 (N.C.1943). But it does not apply to this case: it is patently non-exculpatory and its "force" is limited to the relations between the company and its customer and does not extend to any common law duty which Southern Bell may have owed to Vendola. Inherent in Southern Bell's position is the unarticulated hypothesis that the Public Services Commission is empowered to contract with the state's telephone companies to relieve them of accountability for tortious conduct toward one not privy to the contract. We know of no such power and neither party has cited us to any.

The tariff will not yield to the construction contended for by Southern Bell. Viewed in this light, any illusion of relevance vanishes and with it the basis for its admission into evidence and the instruction that the jury determine whether "Southern Bell and Telegraph Company owed any legal duty to Joseph Vendola, Jr."

Southern Bell's counsel correctly predicted in...