SUPREME COURT OF FLORIDA STACI LEVY, as Personal Representative of THE ESTATE Case No: SC 01-2786 OF BRANDON LEVY, Lower Tribunal Case No: 00-4DOO-3671 Plaintiff/Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Defendant/Appellee. APPELLANT S AMENDED JURISDICTIONAL BRIEF David H. Nevel, Esq. FBN 201537 NEVEL & GREENFIELD, P.A. Attorneys for the Appellant 11900 Biscayne Boulevard, Ste. 612 North Miami, Florida 33181 305 895-1290
TABLE OF CONTENTS Table of Authorities..ii Statement of the Facts and the Case.1 (Jurisdictional Issue) Summary of Argument.3 Argument..4 Conclusion 10 Certificate of Service 11 Certificate of Font Size and Type Style 11 Appendix: Staci Levy v. Florida Power and Light Co. 798 So. 2d 778 (Fla. 4th DCA 2001)
TABLE OF AUTHORITIES Case Law: Arenado v. Florida Power and Light Co., 523 So. 628 (Fla. 4th DCA 1988) 9 Clay Electric Inc. v. Johnson et al;, Case No: SC01-1955 2,3,4,5,6 Gibson v. Avis Rent-a-Car, 386 So. 2d 520 (Fla. 1980) 7 Goldberg v. Florida Power & Light Co., Case No: SC03-1942 3 Glazer v. Florida Power & Light Co., 689 So. 2d 308 (Fla. 3d DCA 1997).9 Johnson v. Lance, 790 So.2d 1144 (Fla. 1st DCA 2001)...4 Martinez v. FP&L, Case No: SC01-105.. 2,3,4,5,6 McCain v. Florida Power and Light Co., 593 So. 2d 500 (Fla. 1992) 4,8,9,10 Metropolitan Dade County v. Colina, 456 So. 2d 1223 (Fla. 3d DCA 1984)...6,7 Oliver v. Eisenman, 523 So. 2d 189 (Fla. App. 1st DCA 1988)...3,8 Our Lady of Divine Catholic Church v. City of Sweetwater, 482 So. 2d 440 (Fla. 3d DCA 1986)..3,7 Staci Levy, as Personal Representative of The Estate of Brandon Levy v. Florida Power and Light Company, 798 So. 2d 778 (Fla. 4th DCA 2001).4,5,7,8
STATEMENT OF THE FACTS AND OF THE CASE On July 1, 1997 twelve-year-old Brandon Levy was killed while crossing the street with his bicycle at the intersection of Coral Ridge and Lakeview Drive in Coral Springs, Florida. When Brandon approached the intersection with his friend, David Lowe, the boys noticed that the traffic light was not working. Appellee, Florida Power and Light Company (FP&L), supplied electric power to the traffic light which was owned and operated by Broward County. James Calvert drove the car toward the intersection just as the boys were crossing, and did not notice that the traffic light was out. Calvert saw David cross the street on his roller blades, but his view of Jason was blocked by another car. A passenger in the car yelled bike, bike, and immediately thereafter Calvert s car hit and killed Brandon. Brandon s mother, Staci Levy, as personal representative of the estate of Brandon Levy, settled a claim against Calvert, and then, filed suit against FP&L in the Circuit Court of the 17th Judicial Circuit in and for Broward County. Staci Levy s Second Amended Complaint alleged that FP&L knew that there was a defective power cable feeding the traffic light at the fatal intersection, and acted negligently in failing to timely restore power or warn the public and proper authorities within the zone of danger created by the power company s decision to leave the faulty power cable in place.
FP&L moved for summary judgment, arguing that even if it was negligent, a power company has no duty to a non-customer pedestrian who is killed as a result of a power failure. FP&L also argued that, because Calvert violated a traffic statute, its negligence could not be the proximate cause of Brandon s death. The trial court granted FP&L s motion for summary judgment. In an opinion filed on September 19, 2001 (rehearing denied November 15, 2001), (attached hereto as the Appendix) the Fourth District Court of Appeal affirmed the summary judgment, holding that even if the power company was negligent, no duty was owed by FP&L to Brandon Levy. The Fourth District also upheld the trial court s ruling that the driver s failure to comply with the four-way-stop traffic statute was, as a matter of law, a superceding, intervening cause relieving FP&L of all liability. On December 14, 2001, Appellant filed its Notice to Invoke Discretionary Jurisdiction followed by her Jurisdictional Brief on January 3, 2002 requesting that this Court take jurisdiction based on conflicts with decisions of Court of Appeals and other districts. On January 18, 2002 this Court entered its Stay Order pending disposition of Martinez v. FP&L, Case No: SC01-105 and Clay Electric Inc. v. Johnson et al; Case No: SC01-1955. This Court thereafter on December 18, 2003 ruled on Clay Electric v. Johnson, affirming the First District Court of Appeal s reversal of a summary
judgment entered on behalf of Clay Electric. That same date this Court, in Martinez v. FP&L, reversed a Judgment on the Pleadings entered by the trial court on behalf of FP&L and affirmed by the Third District Court of Appeal. On August 18, 2004, this Court entered a further stay of this cause pending disposition of the case of Goldberg v. Florida Power & Light Co., Case No: SC03-1942. Goldberg is still pending with this Court. Appellant submits that this Court should accept jurisdiction based upon the recent decisions by the Supreme Court in Martinez v. FP&L, Case No: SC01-105 and Clay Electric Inc. v. Johnson et al; Case No: SC01-1955 and other cases in the Court of Appeals and other districts conflicting with the decision of the Fourth District. SUMMARY OF ARGUMENT I. The decision of the Fourth District Court of Appeals, holding that a power company does not owe a duty to a pedestrian who was injured in a collision because of the negligence of a power company, conflicts with the decision rendered by the Florida Supreme Court in Martinez v. FP&L, Case No: SC01-105 and Clay Electric Inc. v. Johnson et al; Case No: SC01-1955. 11. The decision of the Fourth District Court of Appeals, holding that the driver s failure to comply with a traffic statute was, as a matter of law, a superceding cause which absolves FP&L of liability, conflicts with the decision rendered by another district court in Our Lady of Divine Catholic Church v. City of Sweetwater, 482 So. 2d 440 (Fla. 3d DCA 1986) and in Oliver v. Eisenman, 523 So. 2d 189 (Fla. App. 1st DCA 1988). III. The Fourth District s decision holding that FP&L had no duty to warn the public of a dangerous condition of which the power company had
knowledge conflicts with the decision rendered by this court in McCain v. Florida Power and Light Co., 593 So. 2d 500 (Fla. 1992). ARGUMENT 1. The Fourth District s Decision conflicts with Martinez v. FP&L (Fla. Supreme Court) and Clay Electric v. Johnson (Fla. Supreme Court) In rendering its decision upholding summary judgment for the Defendant, the Fourth District stated that its decision was policy driven, suggesting that appellant s allegations might have merit but the matter would more appropriately be decided by the Supreme Court of the legislature. The Court opined: The decision in this type of case is policy driven. The finding of a legal duty or a jury question here would change an electric utility s conduct when faced with power outages. If appellant s allegations are true, that might be a change for the better. However, imposing liability would shift the cost for many traffic accidents to the utility and presumably, to the rate payer through increased power rates The drastic shift in policy which Levy seeks is more properly made on a statewide basis by the supreme court or by the legislature, the branch of government best suited to weigh and allocate social costs. Staci Levy, as Personal Representative of The Estate of Brandon Levy v. Florida Power and Light Company, 798 So. 2d 778 (Fla. 4th DCA 2001) The Appellant, whose complaint alleges that she lost her twelve year old son as a result of FP&L s negligence, appreciates the Fourth District s acknowledgment that a ruling in favor of the appellant in this case would change for the better an electric company s conduct when faced with power outages, and thereby protect the public. The First District took a step toward a such a change for the better in Johnson v. Lance, 790 So.2d 1144 (Fla. 1st DCA 2001), where the First Disctrict held a power company liable to a pedestrian for damages suffered
when a street light failed because of the company s failure to make necessary repairs. The decision of the appellate court was affirmed by the Supreme Court in Clay Electric Inc. v. Johnson et al; Case No: SC01-1955. This court in Clay Electric stated that the defendant had assumed a specifically legally recognized duty to the plaintiff to act with due care in maintaining the street light. In Martinez v. FP&L, Case No: SC01-105 this Court, based on its decision in Clay Electric, reversed the judgment on the pleadings entered by a trial court on behalf of FP&L and affirmed by the Third District, another case involving a death due to FPL s failure to adhere to an acceptable standard of conduct. The position of the Florida Supreme Court in the above cited cases is consistent with the position taken by the appellant in this cause. Staci Levy s complaint alleged that FP&L had notice of the problems associated with the power supply to the traffic light and that the power company had acted negligently in failing to timely restore power or notify the public and proper authorities of the problem. Levy v. Florida Power and Light, 798 So. 2d 778, (Fla. 4th DCA 2001). The duty that FP&L had to repair the power cable in the case at bar is analogous to the power company s duty to maintain the street lights in Clay Electric. There is no substantive difference between the duty of the power company in Clay Electric to maintain the street lights and Staci Levy s claim that FP&L failed in its duty to
maintain the power supply to the light that failed to work. As stated in Clay Electric Inc. v. Johnson et al: In the present case, we conclude that the trial court erred in granting Clay Electric s motion for summary judgment. Viewing the record, the undisputed facts, and all reasonable inferences therefrom in the light most favorable to the nonmoving parties, we hold that the plaintiffs have adequately shown that Clay Electric assumed a specific legally recognized duty to the Plaintiffs to act with due care in maintaining the streetlights. Clay Electric Inc. v. Johnson et al at 5 Based on the authority and argument set forth below, the Appellant respectfully submits that the Fourth District s ruling below conflicts with the decisions reached by this Court in Martinez v. FP&L, Case No: SC01-105 and Clay Electric Inc. v. Johnson et al; Case No: SC01-1955. II. The Decision Conflicts with Our Lady of Devine (3 rd District) and Oliver v. Eisenman (1 st District) Relying primarily on the Third District case Metropolitan Dade County v. Colina 456 So. 2d 1223 (Fla. 3d DCA 1984), The Fourth District also found that Jason Calvert s failure to stop at the fatal intersection was a superceding and intervening cause relieving FP&L of any liability. Willfull or oblivious behavior can be considered such an unusual and extraordinary conduct that by its own nature it becomes a superceding and intervening cause. But where a motorist is not oblivious and does not commit a willful act of misconduct, the question of whether the motorist s conduct is a foreseeable intervening act is one which must be left for
the jury. Our Lady of Divine Providence Catholic Church v. City of Sweetwater, 482 So. 2d 440 (Fla. 3d DCA 1986). See also: Gibson v. Avis Rent-a-Car, 386 So. 2d 520 (Fla. 1980). In the case at bar, the driver did not know that the light was out at the intersection, and his view of Brandon Levy was blocked by another car. Levy v. Florida Power & Light, id., pg. 1. In Colina, the driver testified that he realized the light was out and the vehicles might not stop, but tried to cross anyway. Metropolitan Dade County v. Colina, id., 1223. In Our Lady of Divine, the driver, Sister Sanchez, did not know that the light was malfunctioning, and her violation of the four-way stop law was not found to be an intervening, superceding cause. Colina: In Our Lady of Divine, the Third District vividly distinguished the facts of In Colina, both drivers could see that the signal was malfunctioning. Colina proceeded through the intersection hoping to beat the oncoming vehicles even though he was aware that the vehicles might not stop Our Lady of Divine Catholic Church v. City of Sweetwater, id., 442. The foreseeability of an intervening cause is generally a jury question, becoming a question of law for judicial determination only when reasonable people cannot differ as to foreseeability. Our Lady of Divine v. City of Sweetwater, id., 443. In the case at bar, as in Our Lady of Divine, the driver did not know the light was out, and had his view of Brandon blocked by another car. Jason Calvert did not deliberately proceed through the intersection hoping to beat the oncoming
traffic even though he was aware that the vehicles might not stop Unlike in Colina, reasonable minds could easily conclude that Calvert s actions were not unforeseeable, and therefore did not constitute a superceding cause. Insofar as the Fourth District appears to hold that violation of a traffic statute is conclusive evidence as to negligence, the decision of the Fourth District also conflicts with Oliver v. Eisenman, 523 So. 2d 189 (Fla. App. 1 Dist. 1988), wherein the First district recites well-settled law that while violation of a traffic statute can be evidence of negligence, it is not conclusive and may be overcome by other facts and circumstances in fixing ultimate responsibility. Oliver v. Eisenman, id., 190. Therefore, the Fourth District s decision as to proximate cause clearly conflicts with decisions of other district courts and prevailing law, under which the case at bar should have been submitted to the jury with the appropriate instructions on causation and comparative degrees of negligence. III. The Decision Conflicts with McCain v. Florida Power & Light Co. Staci Levy s complaint alleged that her son was killed not only because FP&L failed to timely correct the problem with the power supply, but also that the power company increased the risk by failing to warn the public and the proper authorities after finding out itself. Levy v. Florida Power & Light, id., pg. 1. The Fourth District found that FP&L was protected from liability despite its failure to
warn the public of the danger. In this additional, most significant aspect, the decision of the Fourth District conflicts with the decision of this Court in McCain v. Florida Power & Light Co., 593 So. 2d 500 (Fla. 1992). When evaluating whether a defendant has a duty to the plaintiff, a proper line of inquiry for the reviewing Court is whether the defendant s conduct created a foreseeable zone of risk. The duty element of negligence focuses on whether the defendant s conduct foreseably created a broader zone of risk that posed a general threat of harm to others. McCain, id. There is no statutory or constitutional authority which immunizes a public utility from liability for a wrongful death which occurs when power fails as a direct result of the utility s failure to warn the public of dangerous conditions arising from the supplying power. The Courts are not free to relieve the power company of its duty to maintain its lines in such a manner as to avoid unreasonable risks of harm to members of the public simply because of the fear of rising electric bills. McCain, id. See also: Glazer v. Florida Power & Light Co., 689 So. 2d 308 (Fla. 3d DCA 1997). The Fourth District, in its opinion in Levy, relies heavily on Arenado v. Florida Power and Light Co., 523 So. 628 (Fla. 4th DCA 1988). In Arenado, however, where the power problem became apparent only moments before the accident, there was no evidence that the power company had prior notice of a power supply problem, or did anything else to increase the risk. Appellant in the
case at bar has alleged that FP&L increased the risk caused by its failure to correct a power supply problem of which FP&L had knowledge, and also by failing to warn the public of the danger. The Fourth District s ruling is therefore in conflict with this Court s decision in McCain as well. CONCLUSION The Fourth District s decision, in which the Court candidly comments that a contrary ruling might have been a change for the better in how power companies conduct themselves, nevertheless adheres to the policy that power companies must not be held liable for acts of negligence in the supplying of power. The Appellant has cited several decisions of other district Courts of appeals, as well as of this Court, which are in conflict with this decision. It is respectfully submitted that the Supreme Court should therefore take jurisdiction and closely examine the premises of law and public policy underlying the Fourth District s decision. Respectfully Submitted, DAVID H. NEVEL Fla. Bar No. 201537
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of Appellant s Amended Jurisdictional Brief was furnished by U.S. mail to E. Bruce Johnson, Esq. and Tamara M. Scrudders, Esq. of Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A. 2455 East Sunrise Blvd., Suite 1000, Ft. Lauderdale, Florida 33304 this day of January 2005. By: DAVID H. NEVEL, ESQ. CERTIFICATE OF TYPE SIZE AND FONT STYLE I HEREBY CERTIFY that the type size and font style of the foregoing brief is 14-point Times New Roman. By: DAVID H. NEVEL, ESQ.