Florida Power & Light truck. Photo: Robert Gregory Griffeth/Shutterstock.com. Florida Power & Light truck. Photo: Robert Gregory Griffeth/Shutterstock.com.

A lawsuit alleging Broward nursing home residents were left to "bake in sweltering heat" after a hurricane-induced power cut lost one defendant Wednesday, when the Fourth District Court of Appeal found Florida Power & Light Co. has no duty to provide a continuous supply of electricity to the general public.

The negligence suit — filed by a resident at Rehabilitation Center at Hollywood Hills LLC — tested the limits of liability for utility companies before and after natural disasters.

Plaintiff Christine Cooper was 79 when Hurricane Irma hit South Florida on Sept. 10, 2017, cutting power at her 152-bed nursing home. Without air conditioning or a generator, 12 elderly residents died and dozens were injured, according to the complaint, which said it took three days for someone to call 911.

As well as suing the nursing home, Cooper alleged South Florida's only power company owed a duty to her and the public "to exercise a high degree of care in the operation and maintenance of its power lines and power grid." She claimed FPL lacked the plans, staff and policies needed to restore power quickly, and that it failed to do routine inspections and follow safety standards.

But the Fourth DCA found Broward Circuit Judge David Haimes was right to grant FPL's motion to dismiss.

"We do not think it is foreseeable that the failure to restore electricity poses an 'unreasonable' risk of harm to the entire population," the opinion said. "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."

'Enormous liability'

The appellate panel said it couldn't impose such a duty on FPL, as that would essentially make it an insurer of electric and public welfare — something even the plaintiff agrees it isn't.

"Were we to find such a duty, it would open up public utilities to enormous liability for every conceivable injury, both personal and property, which may occur during a power outage," the opinion said. "Such a 'drastic shift' of liability to a public utility is more properly made by the legislature or Public Service Commission."

Wednesday's ruling pointed to a Florida Supreme Court case which held FPL had a duty to fix downed power lines in a non-negligent way, and a duty to warn people if it creates hazardous conditions by temporarily turning off traffic lights, for example.

But that liability didn't extend to natural disasters, when "there clearly is considerably less ability to control any risk associated with an inability to supply power," according to Wednesday's opinion.

Cooper had leaned on the "undertaker doctrine," which governs reasonable care for defendants that have pledged to provide services. But the Fourth DCA found FPL's alleged obligations were too general here, encompassing everyone in South Florida.

"At best, it [the complaint] states that FPL knew of the situation at the center and failed to restore power in time, yet it does not allege that FPL made any specific agreement to restore power immediately to the center or in the three days that passed before the discovery of the residents' conditions," the opinion said.

Scott Schlesinger and Jeffrey Haberman of Schlesinger Law Offices in Fort Lauderdale and Philip Burlington and Adam Richardson of Burlington & Rockenbach in West Palm Beach represent Cooper. Eric Hoecker in Juno Beach, Stuart H. Singer and Evan Ezray of Boies Schiller Flexner in Fort Lauderdale, and Luis Suarez and Mark Heise of Heise Suarez Melville in Coral Gables represent FPL.

They did not respond to a request for comment by deadline.

Hollywood solo practitioner Julie Allison and Dorothy Easley of Easley Appellate Practice in Miami represent the nursing home, which also opposed the trial court's decision to remove FPL.

"We have great respect for the Fourth District Court of Appeal and its decisions," Easley said. "We read this decision to mean that the allegations of the plaintiff's complaint did not trigger a legal duty to the plaintiff as pled and that the decision is limited to this particular complaint. We are still studying the decision for further understanding and any decision about further action."

Fourth DCA Judge Martha Warner wrote the opinion, with Fourth DCA Judge Alan Forst and Miami-Dade Circuit Judge Lisa Walsh sitting by designation.

Read the ruling:

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