SC03-1942 – Walter Goldberg, Etc., Et Al. v. Florida Power And Light Company

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Supreme Court » 2005 » SC03-1942 – Walter Goldberg, Etc., Et Al. v. Florida Power And Light Company

State: Florida

Court: Supreme Court

Docket No: sc03-1942

Case Date: 04/07/2005

Plaintiff: SC03-1942 – Walter Goldberg, Etc., Et Al.

Defendant: Florida Power And Light Company – Corrected Opinion

Preview:Supreme Court of Florida
No. SC03-1942
WALTER GOLDBERG, etc., et al.,
Petitioners,
vs.
FLORIDA POWER & LIGHT COMPANY,
Respondent.
[April 7, 2005]
CORRECTED OPINION
LEWIS, J.
We have for review Florida Power & Light Co. v. Goldberg, 856 So. 2d
1011 (Fla. 3d DCA 2002), which expressly and directly conflicts with this Court’s
decision in Martinez v. Florida Power & Light Co., 863 So. 2d 1204 (Fla. 2003).
We have jurisdiction.  See art. V, § 3(b)(3), Fla. Const.  As more fully discussed
further herein, we quash the decision of the Third District Court of Appeal and
remand the case for reinstatement of the remitted final judgment as initially
ordered by that court.

BACKGROUND AND FACTS
The instant action arises from a decision of the Third District Court of
Appeal reversing a judgment entered against Florida Power & Light (FPL) in
connection with the wrongful death action concerning the death of the Goldbergs’
12-year-old daughter, Jill Goldberg.  FPL terminated power to a traffic light which
resulted in a motor vehicle collision and the resulting death.  Initially, a Third
District panel affirmed the trial court’s order denying FPL’s alternate motions for
directed verdict and a new trial, but determined that the $37 million in damages
awarded by the jury was excessive, and remanded the case for remittitur to $10
million.  Thereafter, sitting en banc, the Third District Court of Appeal reversed
the initial panel’s decision and remanded the case with instructions to direct a
verdict and enter judgment in favor of FPL.  We quash this decision and reinstate
the decision of the original Third District panel.
The Goldbergs’ action arose from a traffic accident that occurred in the
Village of Pinecrest on Friday, September 12, 1997, shortly after 5 p.m., which
resulted in their daughter’s death.  Much earlier that day, weather had caused an
electric line to come down in the rear of the Fishbein residence, a private home
located on a side street (Southwest 122nd Drive), which intersects with 67th
Avenue in Pinecrest.  The Fishbein residence is a large, walled home with a
motorized gate in front.  The concerned homeowner notified law enforcement and
- 2 -

Officer Laricci of the Pinecrest police department responded to the scene at
approximately 2 p.m.  Ray Woodard, an FPL repairman, who had responded to a
call from the same residence approximately two weeks before this date, also
responded and established that there was no power flowing through the downed
line at this location.  Shortly after Woodard arrived on the scene, the Fishbeins left
the residence.  At approximately 3 p.m., FPL through Woodard informed Officer
Laricci that he was no longer needed at the scene and that he could leave the area.
Ultimately FPL dispatched six trucks and seven repair personnel to the
Fishbein residence and immediate area.   To prevent an occurrence referred to as
“backfeed,” the FPL crew determined that they should deactivate power on an
adjacent line which was connected to the same utility pole as the downed line.  To
accomplish this task, the crew decided to de-energize the adjacent line by opening
a fuse on the utility pole which was located near the Fishbein property, and
positioned approximately 100 to 150 feet from the traffic light that controls the
intersection of Southwest 67th Avenue1 and 120th Street, a major intersection in
Pinecrest.  At 4:42 p.m., Woodard proceeded to the utility pole in question, opened
the fuse and terminated power to the parallel line, rendering the traffic signal
totally inoperable.  Despite numerous contrary factors, Woodard claimed that he
1.   This section of 67th Avenue is also known as “Ludlam Road.”
- 3 -

did not actually know that the fuse also controlled the traffic signal at this
intersection.
Jill Goldberg was a passenger in a car driven by her mother, Rosalie
Goldberg.  Shortly after 5 p.m., the Goldbergs were traveling north on 67th
Avenue following a line of vehicles, none of which were stopping at the inoperable
traffic light deactivated by FPL at the intersection of 67th and 120th.  Cynthia
Sollie, who had traveled eastbound on 120th Street, stopped her Ford Expedition at
this inoperable traffic light in an eastbound direction on 120th Street, but pulled
out slowly onto 67th Avenue, attempting to find an opening in the flowing line of
traffic proceeding along 67th Avenue on this rain-filled afternoon.  Sollie’s 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 on 67th Avenue.  The
Goldberg’s vehicle was moving sideways at the time and was impacted on the
passenger side by a Chevy Suburban traveling southbound on 67th Avenue.  Jill
Goldberg was immediately airlifted from the intersection to the trauma center at
Jackson Memorial Hospital where she died the next day.
Walter Goldberg and Rosalie Goldberg, as personal representatives of the
Estate of Jill Goldberg, filed this action seeking damages from FPL for wrongful
- 4 -

death and negligence.   The complaint alleged, in pertinent part,2 that FPL had a
duty not to create a hazardous condition at the subject intersection by terminating
power without providing for traffic control, or warning the appropriate
governmental authorities or motorists when it was reasonably foreseeable that
harm would occur absent traffic control.  The Goldbergs contended that as a result
of FPL’s breach of this duty, traffic proceeded through the intersection in an
uncontrolled manner and Jill Goldberg was killed.  FPL countered that it had no
common law duty to the general public for the operation of traffic signals.
After a week-long trial, the jury found for the plaintiffs, awarding the
Goldbergs approximately $37 million in damages.  The jury verdict form reflected
a finding of negligence on the part of FPL which was the legal cause of Jill
Goldberg’s death, and no negligence attributable to either Cynthia Sollie or Rosalie
Goldberg.  Pertinent to the instant analysis, FPL requested the entry of a directed
verdict in its favor.  The trial court denied the motion, concluding that “ample
evidence” had been presented that Woodard, FPL’s agent, should have known that
2.   The complaint also alleged that FPL had represented to the Manager of
the Village of Pinecrest that the company would notify the local government
whenever it intended to terminate power to a portion of the Village, and thus
assumed the duty to provide such advance notice.  FPL countered that it owed no
contractual duty to warn the Village of Pinecrest because the traffic signal was
inadvertently deactivated during the performance of emergency restoration work,
not during a scheduled power outage.   Our decision rests on FPL’s common law
duty to warn, and, consequently, we will not address whether or not FPL also had
assumed an additional duty to notify the Village of Pinecrest of the power outage.
- 5 -

he was de-energizing the source of electrical power to the traffic signal, and that
FPL’s failure to provide any type of warning concerning the intentional power
interruption and the dangerous condition resulting at the intersection created a
“reasonable foreseeable zone of risk to others” which gave rise to a duty to warn
affected motorists.  On the issue of proximate causation, the trial court
distinguished and refused to apply a line of cases generated within the Third
District holding that a driver’s negligence in failing to treat an inoperable signal as
a four-way stop as required by Florida law always constitutes an intervening
superseding cause as a matter of law relieving the original negligent actor of
liability.
A three-judge panel of the Third District affirmed the trial court’s refusal to
direct a verdict.  However, the Third District sitting en banc reversed the decision
of the initial district court panel.  Issuing a brief opinion, the district court at that
time relied solely on its decision in Martinez v. Florida Power & Light Co., 785
So. 2d 1251 (Fla. 2d DCA 2001), which this Court has since quashed based on
later developing authority, see Martinez, 863 So. 2d at 1205, to conclude that FPL
owed no common law duty whatsoever to Jill Goldberg.  The district court also
invoked district precedent and determined that no negligence with respect to the
operation of the traffic light could have been the legal or proximate cause of the
accident because it was causally superseded as a matter of law by the actions of the
- 6 -

drivers involved in the collision.  Having determined that the Goldbergs could
satisfy neither the duty nor proximate cause elements of their negligence action,
the split en banc court concluded that FPL’s motion for directed verdict should
have been granted and a corresponding judgment entered.  We granted jurisdiction
in the matter, see Goldberg v. Fla. Power & Light Co., 870 So. 2d 821 (Fla. 2004)
(table), and the instant review followed.
ANALYSIS
Legal Duty
The determination of the existence of a duty of care in a negligence action is
a question of law.  See McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (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.”  Id. at 502.   A duty may arise from multiple 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. Co-op., Inc. v. Johnson, 873 So. 2d
1182, 1185 (Fla. 2003) (quoting McCain, 593 So. 2d at 503 n.2).  The present case
falls within the fourth category--the duty, if it exists, would arise from the general
facts of the case.  Moreover, because the instant matter involves a motion by FPL
for a directed verdict with an adverse jury verdict established, we must view the
- 7 -

facts in the light most favorable to the non-moving party, the Goldbergs.  See Irven
v. Dep’t of Health & Rehab. Servs., 790 So. 2d 403, 407 (Fla. 2001).  Every
“reasonable conclusion which may be drawn from the evidence” must also be
construed favorably to the Goldbergs, and only where there is “no evidence upon
which a jury could properly rely” in finding for the Goldbergs should FPL’s
motion for a directed verdict be granted.  Id. at 406 n.2 (quoting Stokes v. Ruttger,
610 So. 2d 711, 713 (Fla. 4th DCA 1992)).
In denying FPL’s motion for a directed verdict, the trial court determined
that FPL had a common law duty to warn of the hazardous situation it created
when the company intentionally terminated the flow of power which rendered the
traffic signal inoperable.  In response to FPL’s argument that the repairman,
Woodard, did not realize he was deactivating the traffic signal, the trial court
determined that there was “ample” evidence that he should have known that the
wiring on the pole directly powered the traffic light.  In affirming that decision, the
initial district court panel determined that “FPL’s employee took deliberate steps
that he knew or should have known would turn off a traffic signal,” and that his
action “created a foreseeable zone of risk to the driving public--the Goldbergs.”
Goldberg, 856 So. 2d at 1027.  The district court initially concluded that “FPL had
a duty to exercise reasonable care to protect the motorists it placed at risk by this
conduct.”   Id.
- 8 -

We agree that the facts of this case establish that FPL’s actions created a
foreseeable zone of risk encompassing the motorists utilizing the intersection
within this 100 to 150 feet of the critical location at 67th and 120th, and gave rise
to a legal duty to warn motorists of the hazardous condition it created by
deactivating the traffic signal.  See McCain, 593 So. 2d at 503 (“[T]he trial and
appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely
than not was created by the defendant.”). 3  As found by the trial court, there was
3.   The concurring opinion does not agree that FPL had a duty to warn of the
danger created by its disabling of the traffic light, and instead concludes that the
company had the far greater singular duty to actually provide emergency traffic
control until law enforcement arrived or until the traffic light was operable.  We
acknowledge that in the instant matter FPL certainly would have been capable of
providing emergency traffic control given the number of FPL personnel on scene,
the training they received in traffic direction, and the equipment they had on hand
to facilitate such measures.  We cannot agree, however, that all such scenarios
impose a singular duty to provide actual emergency traffic control as opposed to
adequately warning affected motorists of the hazard created by a dangerous
condition.  One facing similar circumstances may adequately address the
hazardous situation it created by employing any number of measures along a
spectrum, some of which--such as the placement of road flares or the prior
notification of local authorities--may obviate the duty to engage in actual traffic
control.  The essential problem in this case is that FPL did nothing, despite its
employee’s constructive knowledge of the hazard posed by his affirmative act.
As explained in greater detail in this opinion, one who undertakes an action
assumes the duty to perform the action non-negligently.  See Union Park Mem.
Chapel v. Hutt, 670 So. 2d 64 (Fla. 1996) (determining that once a funeral director
undertook to lead a funeral procession, he assumed a minimal duty to ensure that
the procession proceeded safely).  On that basis, we are reluctant to impose a
greater singular duty to provide actual emergency traffic control, and the liability
that flows from that duty, in a situation such as this.  The better rule in a case such
as this is to impose a duty to use reasonable care which may, depending on all
relevant factors, require providing traffic control, but on other occasions sufficient
- 9 -

ample evidence that Woodard should have known that opening the fuse on the
utility pole to prevent backfeed to the downed line would terminate power to the
traffic signal.  Woodard admitted that he knew opening the fuse would cause a
power outage “in the area.”  He also admitted that from his position at the utility
pole, he had an unobstructed view of the traffic signal at 67th and 120th, which
was no more than 150 feet away.  Woodard testified that he did not actually look in
the direction of the signal, but that testimony was undermined by evidence
showing that Woodard made two trips to the utility pole on the day of the accident
during which he would have had a clear view of the traffic signal in question.4
Indeed, the Goldbergs’ traffic signal expert testified that from where Woodard was
positioned he should have even seen the traffic light go dark when he terminated
power to the parallel line.
Moreover, the utility pole itself had several characteristics clearly disclosing
that the power for the traffic signal flowed from that location.  There was a
distinctive concrete slab measuring five feet by five feet at the base of the pole
warning to alert affected motorists of the hazardous situation created when the
actor disabled the traffic light.
4.   First, Woodard walked to the pole, and opened the fuse for the downed
line to ensure that it was de-powered.   On this trip, he would have had an
unobstructed view of the then-functioning traffic signal.  Woodard returned to the
pole in his bucket truck to pull the second fuse to deactivate the parallel line.
Again, from his position, he would have had a clear view of the then-inoperable
signal.
- 10 -

with a metal plate in the center of it marked “Traffic Signal.”  Woodard confirmed
that had he seen the concrete slab and metal plate, he would have known that the
wiring on the pole controlled the traffic signal.  There was also a gray box located
eight feet up the pole which contained a breaker for the traffic signal.  Sheldon
Pivnik, the former chief of traffic signals and signs for Dade County, testified that
a conduit ran from the signal breaker to the top of the pole where it was connected
to FPL’s power lines, and that it was a “typical installation” uniformly identifiable
as a service point for the traffic signal.   Woodard testified that on the day of the
collision he did not inspect the pole or its base, and asserted that his view of the
pole and base was obstructed by trees and leaves.  According to Pivnik, however,
Woodard should have inspected the utility pole prior to disconnecting power,
regardless of whether the pole was covered by foliage.
The record also demonstrates that FPL had the capacity to institute even the
most minimal of safety procedures prior to terminating power to the traffic signal.
When Woodard arrived on the scene at the Fishbein residence, a uniformed officer
from the Pinecrest police was also present.  This officer could have and would
have easily assisted in making the intersection safe for travel, but Woodard advised
the officer that he was no longer needed at the scene.  Even in the officer’s
absence, FPL itself had more than ample, experienced personnel on the scene who
were equipped with the items necessary to warn motorists of the inoperable traffic
- 11 -

light.  Upon analysis, the company had dispatched six trucks and seven repair
people to this scene.  Woodard, who himself had 32 years’ experience with FPL,
testified that on the day of the collision, he actually had beacons, hazard lights,
flashing beacons, and portable two-way hand radios in his truck, none of which
was ever employed and all of which remained unused.
The facts clearly show without conflict that FPL also had sufficient time to
initiate some necessary safety measures on the day of the accident.  Woodard
arrived on the scene at 2:45 p.m., and confirmed that the downed line on the
Fishbein property was not an immediate threat because there was absolutely no
power running through it at that time.  The traffic signal was not deactivated until
4:42 p.m., leaving the intervening two hours for the multiple crews to ascertain the
possible ramifications of intentionally terminating power to the parallel line as part
of the repair, and to implement some corresponding appropriate safety measures.
The record also reflects that proper safety procedures would have called for
FPL to simply notify the local authorities that it had or intended to de-power a
traffic signal or take some small steps to warn affected motorists or both.  Expert
testimony indicated that FPL should have and could have taken any of several
minimal steps prior to deactivating the traffic signal, including simply notifying the
local police department, placing cones or flares on the road, or notifying the public
works department of the need for portable stop signs.  As Judge Cope correctly
- 12 -

stated in his opinion specially concurring with the initial district court decision, “It
does not appear that FPL ever squarely contradicted the plaintiff’s expert’s
assertion” regarding the applicable standard of care.  Goldberg, 856 So. 2d at
1031. 5   Even FPL’s senior safety specialist agreed that even in an unplanned
outage situation, an FPL employee would have an obligation to protect the public
from the hazardous situation created when he knows his actions will terminate
power to a traffic signal.
Finally, the weather added to the hazardous driving conditions which were
present at the time of the collision.  The accident occurred during the evening rush
hour on a rainy, overcast day.  The FPL crew should have reasonably factored such
conditions into determining how to proceed with the needed repair work.  See Clay
Electric, 873 So. 2d at 1187 (determining that the company should have reasonably
foreseen that proper maintenance of the street lights was necessary for the
protection of the plaintiffs where the street light was located in a residential area
along a major roadway that served as the pathway for a bus stop without the
benefit of sidewalks).  This trap for the motoring public was created within 100 to
150 feet from the source of the intentional de-energizing act.
5.   Judge Cope further stated that FPL never established that the applicable
standard of care would allow the company to rely exclusively on the provision of
the Florida Statutes requiring drivers to treat inoperable traffic signals as four-way
stops.  See Goldberg, 856 So. 2d at 1031.
- 13 -

An analogous question was presented in Palm Beach County Board of
Commissioners v. Salas, 511 So. 2d 544 (Fla. 1987), in which this Court was asked
to determine whether a county work crew could be held liable for failing to take
reasonably necessary steps at a maintenance site to protect the safety of passing
motorists.  In that case, a survey crew had blocked a left turn lane, rendering the
left turn signal perpetually red.  See id. at 545.  The crew failed to post signs
prohibiting left turns from the remaining lanes.  See id.  A woman who attempted
to turn from the far right lane collided with the plaintiffs in the intersection.  See
id.  This Court held that the work crew had a duty to carry out its maintenance
responsibilities in a non-negligent manner, and had a duty to warn the motoring
public of any known hazards that the presence of the work crew, blocking of the
turn lane, and accompanying deactivation of the turn signal had created.  See id. at
547.
A similar conclusion was reached by the First District in Robinson v. State
Department of Transportation, 465 So. 2d 1301 (Fla. 1st DCA 1985).  There, the
DOT had blocked the left turn lane to repaint arrows on the roadway, and thereby
rendered the automatic light activator inoperable.  See id. at 1302.  The district
court reversed the entry of a partial summary judgment in favor of the DOT,
determining that genuine issues of material fact remained regarding whether the
DOT carried out its maintenance responsibilities in a non-negligent manner.  See
- 14 -

id. at 1304.  Important to the court’s determination was the fact that one of the
drivers involved in the accident saw no caution signs, the posting of which was
required by the DOT safety manual.  See id.; see also City of St. Petersburg v.
Collom, 419 So. 2d 1082, 1086 (Fla. 1982) (holding that governmental entities
may be held liable for failing to provide the necessary warning or correction of a
known dangerous condition).
Applying those principles to the instant matter supports the conclusion that
FPL had a clear duty to warn motorists of the hazardous situation it created by the
deactivation of the traffic signal at the intersection of 67th and 120th.  As in Salas
and Robinson, an entity--here FPL--engaged in an affirmative action that
rendered a single, perceptible traffic signal inoperable.  Just as in those cases, this
action by FPL agents created a hazardous condition and a foreseeable zone of risk
for the motorists utilizing the affected intersection.  FPL was thus subject to a duty
to use reasonable care in perfecting this repair and at least warn motorists of the
hazardous situation it had created.
FPL urges, however, that it has no common law duty to the public at large
whatsoever to maintain the flow of electricity to traffic signals, and that any “duty
to warn” argument is essentially and necessarily the flip side of the same coin in
that it seeks to hold FPL liable for the consequences of the cessation of power to
the signal.  Essentially, FPL posits that there is no distinction between the asserted
- 15 -

nonexistent duty to the public to maintain the flow of electricity to traffic signals in
Pinecrest and the duty to warn of interrupted service.  FPL misapprehends the issue
and misstates the duty issue.  FPL relies on an inapplicable line of cases in which
some courts facing different facts have refused to impose a common law duty on
electric utilities to ensure the supply of electricity to street lights and traffic signals.
See Arenado v. Fla. Power & Light Co., 523 So. 2d 628 (Fla. 4th DCA 1988)
(determining that the utility company had not assumed a duty to the general public
to ensure supply of electricity to traffic signals); Gin v. Yachanin, 600 N.E.2d 836
(Ohio Ct. App. 1991) (concluding that no duty to the general public emanates from
the power company’s contract with the local government to provide service to
traffic signals and street lights); see also Martinez v. Fla. Power & Light Co., 785
So. 2d 1251, 1253 (Fla. 3d DCA 2001) (concluding that the public is only an
incidental beneficiary to electric company's agreement with the local government
to maintain streetlights), quashed, 863 So. 2d 1204 (Fla. 2003) (quashing district
court decision and remanding for consideration in light of decision in Clay
Electric); Levy v. Fla. Power & Light Co., 798 So. 2d 778, 780 (Fla. 4th DCA
2001) (determining that power company does not owe a duty to a noncustomer
injured because its negligence rendered a traffic signal inoperable), notice invoking
discretionary review filed, No. SC01-2786 (Fla. Dec. 17, 2001). 6
6.   Clay Electric relied on many of the same cases in arguing that it owed no
- 16 -

However, the rule established in those cases has no application here, where
after determining that no imminent threat existed, an FPL employee chose a
deliberate hazardous repair action that he knew or should have known would
deactivate a single, nearby, in-sight traffic signal, which controlled a very active
intersection, without taking at least some minimal precautions to make safe the
resulting hazard.  The cases cited by FPL simply reflect the established principle
that the power company should not be held responsible every time power to a
traffic signal ceases, a concept with which we do not disagree.  Certainly, in the
event of an emergency mechanical failure, FPL may not know, or know in a timely
manner, that service to a traffic signal has been interrupted.  Similarly, in a large-
scale power outage attendant to a hurricane or other act of God, numerous traffic
signals may be deactivated rendering it impractical for FPL to implement safety
precautions at all affected intersections.   Likewise, an FPL repairman faced with a
truly emergent threat, such as downed live wires, may be forced to rapidly
duty to maintain the street light at issue in that case.  Arenado and many of the
other cases cited above rely on the principle articulated in H.R. Moch Co. v.
Rensselaer Water Co., 159 N.E. 896 (N.Y. 1928), in which the New York court
held that the water company’s agreement to supply water to the city did not create
a duty to the public at large to ensure an adequate supply of water to city fire
hydrants.  This Court has distinguished the cases that relied upon Moch, stating
that Moch was issued at a time when the undertaker’s doctrine was nascent and the
courts did not have the benefit of modern authority pertaining to the “increased
risk” and “reliance” factors of the undertaker’s doctrine, and that Moch appeared to
adopt reasoning applicable to cases involving the installation as opposed to the
maintenance of fire hydrants.  See Clay Electric, 873 So. 2d at 1188-89.
- 17 -

deactivate electric lines that power traffic signals without the time or resources to
implement safety precautions.
This case does not, however, present one of those scenarios.  Nor does
FPL’s attempt to define the issue meet the facts here.  An FPL repairman acted in a
deliberate manner that rendered a single, clearly perceptible traffic signal
inoperative as part of the repair process.   Evidence demonstrates that the repair
work with which he was faced was not truly an emergency.  The downed line
which generated the need for repair was de-energized and located on a private
residence that was unoccupied at the time of the incident and inaccessible to any
passers by.  The decision to open the fuse on the utility pole--a decision that
resulted in the termination of power to the traffic signal and the creation of a
danger and enhanced zone of risk--was made to effectuate the repair of the
downed line, not to cut power to live lines that would have posed a danger to
anyone in the area.  Indeed, it is difficult to reconcile the existence of an imminent
threat to the public from the de-energized downed line with Woodard’s decision to
wait two hours before deactivating the parallel line.   Finally, Woodard was not
forced to handle this situation alone.  With six trucks and seven employees, FPL
had ample resources already on the scene to initiate at least some minimal
necessary safety procedures.
- 18 -

Under the facts of this case, it is perfectly reasonable to conclude that FPL
owed a duty to warn affected motorists of the danger created and posed by the
inoperable traffic signal.  The evidence presented at trial indicated that to satisfy a
reasonable standard of care would have required FPL to notify the police
department, place road flares, direct traffic, or take some other precautions
reasonably necessary to alert and protect the safety of passing motorists.  Having
performed none of these even elementary precautionary measures, FPL breached
its duty.
According to FPL, the sole duty it undertook in the instant matter was to
repair the downed power line and it was free to do so in any manner it selected
without regard to the consequences.  It asserts that this Court cannot impose upon
the company a duty “once removed” from the duty FPL undertook to complete the
restoration work in this case.  FPL further asserts that foreseeability alone is
insufficient to create a legal duty, and that a special relationship between it and Jill
Goldberg is necessary for imposition of a duty.  In support of that proposition, FPL
cites a string of cases in which the duty to warn or make safe dangerous conditions
arose from the special relationship between the parties or the defendant’s
assumption of the duty in question.
FPL’s argument simply ignores the well-established principle that in
fulfilling its duty to repair the downed electric wire, it assumed the duty to do so in
- 19 -

a non-negligent manner.  See Salas, 511 So. 2d at 547; Robinson, 465 So. 2d at
1304; see also Union Park Mem. Chapel v. Hutt, 670 So. 2d 64 (Fla. 1996)
(determining that once a funeral director undertook to lead a funeral procession, he
assumed a minimal duty to ensure that the procession proceeded safely); Sommers
v. Smith & Berman, P.A., 637 So. 2d 60 (Fla. 4th DCA 1994) (concluding that a
title company acting as a closing agent has a duty to conduct the closing in a
reasonably prudent manner).  The company cannot viably argue that its duty to
warn of a dangerous condition it created in the course of making the repair is “one
step removed” from its original duty to repair the line.  Such a theory would
unconscionably allow FPL to take any and all actions it desired to dispense with its
maintenance and repair duties, regardless of the consequences.  For instance, as the
Goldbergs respond, had the repair necessitated the excavation of a large ditch in
the center of 67th Avenue, the law would not insulate FPL from liability for the
failure to properly mark the hazard on the basis that its duty ended with digging the
ditch to effectuate the repair, and that any steps to warn oncoming drivers would be
“one step removed” from its legal duty.   The same logic applies here.  Under the
facts presented, FPL owed a legal duty to warn the motorists traversing the
intersection of 67th and 120th that it had deactivated the traffic signal.
Proximate Causation
- 20 -

The issue of proximate cause is generally a question of fact concerned with
“whether and to what extent the defendant’s conduct foreseeably and substantially
caused the specific injury that actually occurred.”  McCain, 593 So. 2d at 502; see
also Florida Power & Light Co. v. Periera, 705 So. 2d 1359, 1361 (Fla. 1998).
This Court has stated that “harm is ‘proximate’ in a legal sense if prudent human
foresight would lead one to expect that similar harm is likely to be substantially
caused by the specific act or omission in question.”  McCain, 593 So. 2d at 503.
The proper question is whether the individual’s conduct is “so unusual,
extraordinary or bizarre (i.e., so ‘unforeseeable’) that the policy of the law will
relieve the [defendant] of any liability for negligently creating this dangerous
situation.”  Salas, 511 So. 2d at 547.  In this Court’s words, “The law does not
impose liability for freak injuries that were utterly unpredictable in light of
common human experience.”  McCain, 593 So. 2d at 503.  Where reasonable
persons could differ as to whether the facts establish proximate causation, the issue
must be left to the fact finder.  See id. at 504.
A negligent actor such as FPL is not liable for damages suffered by an
injured party “when some separate force or action is the active and efficient
intervening cause” of the injury.  Gibson v. Avis Rent-A-Car Sys., Inc., 386 So. 2d
520, 522 (Fla. 1980) (internal quotation marks omitted).  Such an intervening cause
supersedes the prior wrong as the proximate cause of the injury by breaking the
- 21 -

sequence between the prior wrong and the injury.  However, “[i]f an intervening
cause is foreseeable the original negligent actor may still be held liable.”   Id.  The
question of whether an intervening cause is foreseeable is for the trier of fact.  See
id.  In reaching this determination, the question is “whether the harm that occurred
was within the scope of the danger attributable to the defendant’s negligent
conduct.”   Id. (determining that a reasonable person would conclude that stopping
a car on a multilane highway would create a risk that other cars would collide in an
effort to avoid impacting the stopped vehicle); see also Vining v. Avis Rent-A-Car
Sys., Inc., 354 So. 2d 54 (Fla. 1977) (determining that it was reasonable to foresee
the theft of an automobile left unattended with the keys in the ignition in a high
crime area and the increased danger of injury to those using the highways should
such theft occur).
In overturning the jury’s determination in the instant matter and directing
that a verdict and judgment be entered in favor of FPL, the Third District majority
sitting en banc determined that even if FPL owed a legal duty to Jill Goldberg, the
company’s negligence could not have been the proximate cause of the accident
because it was “causally superseded by the actions of the drivers actually involved
in the collision.”  Goldberg, 856 So. 2d at 1034.  The Third District provided no
analysis of the facts undergirding its conclusion on the proximate cause issue, but
simply cited to a line of its own cases in which it had relieved the initial tortfeasors
- 22 -

of liability as a matter of law due to the plaintiffs’ negligence in failing to treat
inoperable traffic signals as four-way stops as required by Florida law.
This principle was first articulated in Metropolitan Dade County v. Colina,
456 So. 2d 1233 (Fla. 3d DCA 1984).  There, the husband of a woman killed in an
intersectional collision filed a negligence action against Dade County for the
County’s failure to repair traffic signals rendered inoperable by a storm or place
temporary traffic control signals at the affected intersections.  See id. at 1234.   The
evidence in that case showed that as Colina approached the intersection, he stopped
his vehicle, noticed two vehicles approaching to his left, realized that the vehicles
might not stop, yet still decided to cross the intersection.  See id.   The Colinas’
vehicle was struck by one of the oncoming vehicles, resulting in Mrs. Colina’s
death.  See id.
The district court there held that the county’s failure to repair the traffic
signal was not the proximate cause of the collision because the actions of the
drivers constituted intervening causes.  Citing section 316.1235 of the Florida
Statutes (1979), which required drivers to treat an inoperable traffic signal as a
four-way stop, the district court stated that the oncoming driver failed to stop as
required by law, and that Colina had breached his duty to proceed into the
intersection only when reasonably safe to do so.  See id. at 1235.  On this basis, the
district court concluded, “Any negligence on Dade County’s part simply provided
- 23 -

the occasion for the actions of [the drivers], which together were the proximate
cause of Mrs. Colina’s death.”  Id.   The district court concluded that reasonable
persons could not differ on the question of whether the county’s failure to act was
the proximate cause of Mrs. Colina’s death and that, as a matter of law, the
county’s negligence was not the legal cause of the injury suffered.
The Third District reached a similar conclusion in Derrer v. Georgia Electric
Co., 537 So. 2d 593 (Fla. 3d DCA 1988), another case involving an intersectional
collision.  While it is not entirely clear from the text of the opinion itself, one of the
drivers involved in the collision apparently asserted that she did not see the
intersection where the collision occurred due to the inoperable traffic signal.  In
determining that the inoperable signal was not the proximate cause of the collision,
the district court reasoned that inoperable intersectional traffic lights do not cause
automobile drivers to miss seeing the intersection where the light is located.  See
Derrer, 537 So. 2d at 594.  Most recently, in Metropolitan Dade County v. Tribble,
616 So. 2d 59 (Fla. 3d DCA 1993), the Third District held that a cab driver’s
decision to disobey the rules governing the treatment of malfunctioning traffic
lights constituted a “separate and unusual action rendering it a superseding and
intervening cause of the accident.”  Id. at 60.
To the extent Colina, Derrer, and Tribble establish that a plaintiff’s
negligence in entering an uncontrolled intersection always constitutes an
- 24 -

intervening and superseding cause as a matter of law, these cases are misdirected
and in error.  Any such bright-line rule would contravene the well-settled principle
that the issue of proximate cause, including whether there exists an intervening and
superseding cause, is primarily a question of fact, and that when the facts are in
dispute, the issue must be left to the fact finder.  See Vining, 386 So. 2d at 55
(reversing summary judgment and stating that jury must ultimately determine
whether it was reasonable for Avis to foresee the theft of a car and resulting danger
to the driving public when the car was left in the company’s parking lot with the
keys in the ignition).  Indeed, juries in similar contexts have rightly determined that
a plaintiff’s negligence in negotiating an intersection or roadway does not
necessarily constitute an intervening and superseding cause relieving the initially
negligent party such as FPL of liability.  See, e.g., Gibbs v. Hernandez, 810 So. 2d
1034 (Fla. 4th DCA 2002) (reversing summary judgment granted on the basis that
a driver’s decision to negotiate an obscured turn constituted an intervening and
superseding cause relieving the contractor who placed concrete pipes near the
intersection of liability); Dykes v. City of Apalachicola, 645 So. 2d 50 (Fla. 1st
DCA 1994) (reversing trial court’s conclusion that driver’s negligence in hitting a
pedestrian constituted an intervening and superseding cause relieving the city of
liability for allowing foliage to grow into the right-of-way); Grier v. Bankers Land
Co., 539 So. 2d 552 (Fla. 4th DCA 1989) (reversing trial court determination that
- 25 -

overgrown foliage adjacent to an intersection could not as a matter of law
constitute the proximate cause of an accident).  Yet, the Third District relied on
Colina, Derrer and Tribble to summarily conclude that FPL’s negligence in failing
to warn affected motorists of the danger could not have been the proximate cause
of the accident because it was causally superseded by the negligence of Rosalie
Goldberg and Cynthia Sollie.
In denying FPL’s motion for a directed verdict, the trial court correctly
reviewed the record evidence and determined that the accident was an entirely
foreseeable consequence of FPL’s negligence in creating a dangerous condition of
deactivating the traffic signal.  See Goldberg, 856 So. 2d at 1018.  In initially
affirming the trial court’s decision, the original district court panel determined that
the accident in the instant matter was not an “unpredictable event” and presented a
“classic jury issue.”  Id. at 1027.  We agree with this analysis.  If an intersection is
controlled by a traffic signal, it is usually because the intersection is heavily
traveled, has line of sight obstructions, or has some other physical characteristic
that renders stop signs or other traffic control devices impractical.  Thus, in the
course of human events, it is certainly foreseeable that drivers approaching an
intersection with an inoperable traffic light will fail to stop, despite the traffic law
requiring drivers to treat the inoperable signal as a four-way stop.  See § 316.1235,
Fla. Stat. (2003).  This is especially true in a case such as this in which the drivers
- 26 -

approached an inoperable traffic signal at a busy intersection, during the rush hour,
in inclement weather, and where traffic proceeded in one direction in an almost
unbroken band.7
Our decision in Salas is particularly instructive on the proximate cause issue
presented here.  In that case, the Court considered whether the driver’s decision to
make a left turn from the far right lane (an action which violated two traffic laws),
superseded the county’s negligence in blocking the left turn lane without providing
any markers or guidance regarding the inability to turn left at the intersection.  See
Salas, 511 So. 2d at 547.  In the Court’s words:
7.   Pinecrest’s traffic homicide detective testified to the commonality of this
situation, stating:
I’m sure you’ve driven down the road, and I do every day, that
when there’s a light out, the flow of traffic that’s going when the light
is out continues to go as long as the cars are consistent.
If the oncoming section gets a break in traffic or one of the
drivers, you know, decides that he’s going to break the chain, he
nudges up until they gain possession of the lane and then they go until
the other side gets a break.
That’s the way it is here.  It’s been like that for sixteen years.
The law was written many years ago.  The intersections today—I
mean it’s just not practical.
If we shut down the light at 104th Street or anywhere along
South Dixie, four lanes in each direction, you’re not going to have at
rush hour especially, 5 o’clock when this happened, four cars stop,
four cars go.
It’s just not going to happen.  It’s going to be chaotic.  That’s
why police officers are put in intersections because there’s no control.
- 27 -

We are of the view, and we so hold, that the county could have easily
foreseen that blocking off the turn lane, and deactivating the turn
signal and thus leaving motorists with no guidance on if or when they
could turn left, personal injury to someone was not a remote
possibility.   Blount’s actions were not so unforeseeable that the
county should be relieved, as a matter of law and policy, of all
liability. . .                                                                          .  Blount's confusion at this busy and now more dangerous
intersection was not some remote possibility, it was easily
foreseeable.  The fact that Blount was negligent when she turned left
does not render her action so bizarre, unusual or outside the realm of
the reasonably foreseeable that the county’s actions did not also
proximately cause the Salases’ injuries.
Id.
Similarly, here, the failure of a motorist to stop at the intersection of 67th
and 120th was not “so bizarre, unusual or outside the realm of . . . reasonably
foreseeable” behavior to relieve FPL of liability for deactivating the traffic signal
without taking any precautions whatsoever to warn oncoming motorists.  This is
particularly true where, as here, the collision occurred during rush hour at a busy
intersection on rain-slicked streets when the Goldbergs were traveling in a line of
northbound traffic in which no car stopped at the inoperable light.  Under the
circumstances of this case, it was entirely foreseeable that motorists might not stop
their vehicles at the inoperable traffic signal.
Likewise, under the facts presented here, Cynthia Sollie’s negligence in
pulling out onto 67th Avenue does not constitute an intervening and superseding
cause that would relieve FPL of liability.  Evidence established that Sollie was
aware of the inoperable signal and brought her vehicle to a stop as required by
- 28 -

Florida’s traffic law.  Sollie testified8 that she looked to her right and left prior to
proceeding into the intersection and saw no cars.  This testimony is supported by
that of experts for both sides who noted the existence of line of sight obstructions
at the subject intersection.9
While certainly not factors within FPL’s control, the rain, the overcast skies,
and the line of sight obstructions could be perceived by anyone in proximity of the
intersection that day, including Woodard, and should have informed FPL’s
decision with regard to how the repair work would be accomplished.  Indeed, while
begrudgingly, FPL’s accident reconstruction expert even testified that if the light
had been operational, or if someone had been in place to direct traffic, the accident
probably would not have happened.  When viewed in light of the facts of the case,
the negligence displayed by Rosalie Goldberg and Cynthia Sollie cannot be
characterized as intervening and superseding causes as a matter of law totally
relieving FPL of its responsibility for breaching its duty of care by creating the
danger and zone of enhanced risk.  This is a case where reasonable persons could
certainly differ as to the issue of proximate causation, and therefore, the issue was
within the proper province of the fact finder.  Either the Colina line of cases
8.   Sollie’s deposition testimony was read into the record.
9.   FPL’s own accident reconstruction expert testified that if Sollie was
stopped at the stop bar to the intersection, her view would have been obstructed,
and there would have been only a “crack” of viewability in the direction from
which the Goldbergs were traveling.
- 29 -

establishes an erroneous rule of law, or the en banc court erred to the extent it
interpreted these cases as creating an absolute bright-line rule governing the
proximate cause question presented in cases where the plaintiff displays negligence
in entering an intersection with an inoperable traffic signal.
CONCLUSION
For the foregoing reasons, we quash the en banc decision of the Third
District Court of Appeal and remand the case for reinstatement of the initial district
court decision.  We disapprove Colina, Derrer, and Tribble to the extent described
herein.
PARIENTE, C.J., and ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.
WELLS, J., concurs in result only with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
WELLS, J., concurring in result only.
I concur in the result reached by the majority in this case.  However, I do not
join in the majority’s opinion because I do not agree that the duty on the part of
Florida Power & Light Company (FPL) in this case was a duty to warn of the
danger of the traffic lights being out.   The motorists driving through this
intersection had a duty to know whether the traffic light was working, § 316.1235,
Fla. Stat. (1997), and to observe the requirements of section 316.123(2), Florida
- 30 -

Statutes (1997), if the traffic light was inoperative.  FPL had no duty to otherwise
warn them about the light being inoperative.
Moreover, whether the traffic light was operative was open and obvious, and
a failure to warn about that fact did not cause this accident.  The record facts here
are that Ms. Goldberg proceeded into the intersection without observing the light
but, rather, only observed that the traffic ahead of her was moving forward.  Ms.
Sollie apparently did observe that the traffic light was out.
I agree with Judge Cope’s analysis in the district court panel’s decision:
In the present case, however, it was necessary to shut off the
power at this specific location in order to accomplish the repair.  The
fact that this was the power supply for the nearby traffic signal was
ascertainable from inspection of the pole.  There was ample time to
arrange for someone to direct traffic, or to take other protective
measures.
Florida Power & Light Co. v. Goldberg, 856 So. 2d 1011, 1031-32 (Fla. 3d DCA
2002) (Cope, J., specially concurring).  Under the circumstances of this case, since
FPL should have known that it was cutting off the traffic control at the intersection,
FPL had a duty, in accord with McCain v. Florida Power Corp., 593 So. 2d 500
(Fla. 1992), to provide emergency traffic control either until law enforcement
arrived to provide traffic control or until the traffic light was operable.  Contrary to
footnote 3 of the majority opinion, I would hold only that this was the duty which
FPL had under the circumstances of this case.  My conclusion follows McCain,
- 31 -

593 So. 2d at 503 n.2, which states that a duty can arise from the facts of the case.
My view is no more extensive than that holding in McCain.
I agree with the majority that the issue of whether FPL’s failure to provide
traffic control was a proximate cause of the accident was for the jury.  I conclude
that the negligence of the motorists under these facts was joint and not an
intervening cause.  Again, I agree with Judge Cope in his dissenting opinion to the
en banc district court decision that the issue in this case was the comparative fault
of FPL and the two motorists.10
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Third District - Case No. 3D00-63
(Dade County)
Joel D. Eaton of Podhurst Orseck, P.A., Miami, Florida and Stuart Grossman of
Grossman and Roth, P.A., Boca Raton, Florida,
for Petitioner
Gary L. Sasso and Hunter W. Carroll of Carlton Fields, P.A., St. Petersburg,
Florida and Aimee Fried, FPL Law Department, Miami, Florida,
for Respondent
10.   FPL did not raise in this Court an issue of whether a new trial should
have been granted on the issue of comparative negligence.
- 32 -

Download sc03-1942.pdf