FPL Not Liable For Hurricane-Related Power Cuts That Caused Deaths at Nursing Home, Florida Court Rules
Does South Florida's only power company owe a duty to supply continuous power to the general public? This appeals court says no.
May 20, 2020 at 04:17 PM
5 minute read
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:
More appeals:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllHistoric Flooding, Power Outages and Debris From Hurricane Milton Forced Tampa Law Firms to Go Remote
3 minute readSullivan & Cromwell Dismissed as Defendant in Lawsuit from FTX Investors
Eleventh Circuit Rules for Moms for Liberty in Free Speech Case Against School Board
4 minute readEmployee's Alleged Action Lands Marriott in Court for Defamation, Negligence
Trending Stories
Who Got The Work
Dechert partners Andrew J. Levander, Angela M. Liu and Neil A. Steiner have stepped in to defend Arbor Realty Trust and certain executives in a pending securities class action. The complaint, filed July 31 in New York Eastern District Court by Levi & Korsinsky, contends that the defendants concealed a 'toxic' mobile home portfolio, vastly overstated collateral in regards to the company's loans and failed to disclose an investigation of the company by the FBI. The case, assigned to U.S. District Judge Pamela K. Chen, is 1:24-cv-05347, Martin v. Arbor Realty Trust, Inc. et al.
Who Got The Work
Arthur G. Jakoby, Ryan Feeney and Maxim M.L. Nowak from Herrick Feinstein have stepped in to defend Charles Dilluvio and Seacor Capital in a pending securities lawsuit. The complaint, filed Sept. 30 in New York Southern District Court by the Securities and Exchange Commission, accuses the defendants of using consulting agreements, attorney opinion letters and other mechanisms to skirt regulations limiting stock sales by affiliate companies and allowing the defendants to unlawfully profit from sales of Enzolytics stock. The case, assigned to U.S. District Judge Andrew L. Carter Jr., is 1:24-cv-07362, Securities and Exchange Commission v. Zhabilov et al.
Who Got The Work
Clark Hill members Vincent Roskovensky and Kevin B. Watson have entered appearances for Architectural Steel and Associated Products in a pending environmental lawsuit. The complaint, filed Aug. 27 in Pennsylvania Eastern District Court by Brodsky & Smith on behalf of Hung Trinh, accuses the defendant of discharging polluted stormwater from its steel facility without a permit in violation of the Clean Water Act. The case, assigned to U.S. District Judge Gerald J. Pappert, is 2:24-cv-04490, Trinh v. Architectural Steel And Associated Products, Inc.
Who Got The Work
Michael R. Yellin of Cole Schotz has entered an appearance for S2 d/b/a the Shoe Surgeon, Dominic Chambrone a/k/a Dominic Ciambrone and other defendants in a pending trademark infringement lawsuit. The case, filed July 15 in New York Southern District Court by DLA Piper on behalf of Nike, seeks to enjoin Ciambrone and the other defendants in their attempts to build an 'entire multifaceted' retail empire through their unauthorized use of Nike’s trademark rights. The case, assigned to U.S. District Judge Naomi Reice Buchwald, is 1:24-cv-05307, Nike Inc. v. S2, Inc. et al.
Who Got The Work
Sullivan & Cromwell partner Adam S. Paris has entered an appearance for Orthofix Medical in a pending securities class action arising from a proposed acquisition of SeaSpine by Orthofix. The suit, filed Sept. 6 in California Southern District Court, by Girard Sharp and the Hall Firm, contends that the offering materials and related oral communications contained untrue statements of material fact. According to the complaint, the defendants made a series of misrepresentations about Orthofix’s disclosure controls and internal controls over financial reporting and ethical compliance. The case, assigned to U.S. District Judge Linda Lopez, is 3:24-cv-01593, O'Hara v. Orthofix Medical Inc. et al.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250