OF FLORIDA THIRD DISTRICT

Transcription

1 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D FLORIDA POWER & LIGHT COMPANY, Appellant, vs. CASE NO. 3D00-63 WALTER GOLDBERG and ROSALIE LOWER GOLDBERG, as Co-Personal TRIBUNAL NO Representatives of the Estate of JILL HEATHER GOLDBERG, deceased, Appellees. Opinion filed October 1, An Appeal from the Circuit Court for Dade County, Juan Ramirez, Jr., Judge. Hicks, Anderson & Kneale and Mark Hicks and David Maher; FPL Law Department and Aimee Fried, for appellant. Grossman & Roth and Stuart Grossman; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel D. Eaton, for appellees. ON REHEARING EN BANC Before SCHWARTZ, C.J., and COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, and SHEVIN, JJ. SCHWARTZ, Chief Judge. The court has granted FPL s motion for rehearing en banc on

2 the ground that the panel decision departs from the court s prior decisions in (a) Martinez v. Florida Power & Light Co., 785 So. 2d 1251 (Fla. 3d DCA 2001), review granted, 819 So. 2d 137 (Fla. 2002), and (b) Metropolitan Dade County v. Tribble, 616 So. 2d 59 (Fla. 3d DCA 1993), review denied, 626 So. 2d 210 (Fla. 1993); Metropolitan Dade County v. Colina, 456 So. 2d 1233 (Fla. 3d DCA 1984), pet. for review denied, 464 So. 2d 554 (Fla. 1985); and Derrer v. Georgia Electric Co., 537 So. 2d 593 (Fla. 3d DCA 1988), review denied, 545 So. 2d 1366 (Fla. 1989), so that en banc review is necessary to maintain uniformity in the court s decisions. Fla.R.App.P (a). We adhere to each of these decisions. On the merits, viewing, as required, the facts set out in the panel opinions in the light most favorable to the plaintiffs below, we conclude, on two separate grounds each of which is independently sufficient to require the result, that their case fails as a matter of law. We hold: No Duty. Under Martinez, of which we entirely approve, the power company owed no common law duty and, for the reasons in part III of Judge Cope s specially concurring opinion, no contractual duty to the decedent to maintain current in the traffic light in question. No Legal Cause. Even if the contrary were true, under Tribble, Colina, and Derrer, no negligence with respect to the operation of the traffic light could have been a legal or proximate 2

3 cause of the accident because it was causally superseded by the actions of the drivers actually involved in the collision. Because therefore, neither of the indispensable elements, see Florida Power & Light Co. v. Lively, 465 So. 2d 1270, 1273 (Fla. 3d DCA 1985), review denied, 476 So. 2d 674 (Fla. 1985); 38 Fla.Jur.2d Negligence 16 (1998), to the maintenance of a negligence claim-- breach of duty and legal causation--exists as a matter of law on this record, the defendant s motions for directed verdict in its favor should have been granted. 1 The judgment below is therefore reversed with directions to enter one for the defendant instead. Reversed and remanded. LEVY, GERSTEN, GREEN and FLETCHER, JJ. concur. 1 Our disposition to this effect makes it unnecessary to reach or consider any of the multiple grounds raised by FPL in support of its claims for a new trial or remittitur. For that reason, we vacate the panel s holdings and discussion of those issues. 3

4 FPL v. Goldberg, et al. Case No. 3D00-63 COPE, J. (dissenting from opinion on rehearing en banc). I adhere to the views I previously expressed in my special concurrence to the panel opinion--with one exception. While I would uphold the determination that FPL has liability for this accident, I would remand for a new trial on the comparative fault of FPL and the two motorists, Ms. Goldberg and Ms. Sollie. Common experience tells us that when a traffic light is extinguished, motorists frequently disobey the rule that the traffic light is to be treated as a four-way stop. The rule is disobeyed with great frequency where the road is heavily traveled, as was true in this case. The evidence supports the proposition that FPL knew, or reasonably should have known, this. Further, the evidence supports the jury s conclusion that FPL knew, or reasonably should have known, that in disconnecting the power at the nearby pole, it was extinguishing the traffic light as well. If an intervening cause is foreseeable the original negligent actor may still be held liable. The question of whether an intervening cause is foreseeable is for the trier of fact. Gibson v. Avis Rent-A-Car System, Inc., 386 So. 2d 520, 522 (Fla. 1980) (citations omitted); see also McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla. 1992); Palm Beach County Bd. of County Comm rs v. Salas, 511 So. 2d 544, (Fla. 1987). 4

5 While the negligence of Ms. Goldberg and Ms. Sollie was foreseeable, it was nonetheless negligence. It cannot be true that 100% of the responsibility is shifted to FPL. The Goldberg vehicle entered the intersection without stopping. The Sollie vehicle entered the intersection when the way was not clear. The verdict assigning all of the responsibility to FPL was against the manifest weight of the evidence, and a new trial should be ordered solely on the issue of comparative fault. See Morera v. Castellon, 716 So. 2d 318 (Fla. 3d DCA 1998); Pierce v. Nicholson Supply Co., 676 So. 2d 70 (Fla. 2d DCA 1996); Kinsey v. Kelley, 312 So. 2d 461 (Fla. 1 st DCA 1975); Clarke v. Stewart, 579 So. 2d 281 (Fla. 3d DCA 1991). SHEVIN, J. (dissenting from opinion on rehearing en banc). I respectfully dissent and would adhere to the original panel opinion for the reasons stated therein. GODERICH, J., concurs. 5