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Florida Power & Light Co. v. Dominguez

Florida Court of Appeals, Second District

October 25, 2019

FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Appellant,
Tricia DOMINGUEZ, as personal representative of the Estate of Justin Dominguez, Deceased, Appellee.

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         Appeal from the Circuit Court for Lee County; Geoffrey H. Gentile, Judge.

         Mark Hicks of Hicks, Porter, Ebenfeld, & Stein, P.A., Miami; Michael R. D'Lugo of Wicker, Smith, O'Hara, McCoy, & Ford, P.A., Orlando; Tanya M. Lawson and Kevin Donaldson of Florida Power & Light Company, FPL Law Department, Juno Beach; and Mitchell Lundeen of The Chartwell Law Offices, LLP, Miami, for Appellant.

          Julie Littky-Rubin of Clark, Fountain, La Vista, Prather, & Littky-Rubin, LLP, West Palm Beach; and Ty G. Roland and Evan D. Lubell of Aloia, Roland, Lubell, & Morgan, PLLC, Fort Myers, for Appellee.

         KHOUZAM, Chief Judge.

         Florida Power & Light Company (FPL) appeals a wrongful death judgment on a jury verdict awarding $12.5 million in non-economic damages and $15 million in punitive damages to Tricia Dominguez, as personal representative of the estate of Justin Dominguez. We affirm the award of non-economic damages without comment but reverse the award of punitive damages.

         This case arises from a tragic accident. On December 19, 2011, fifteen-year-old Justin Dominguez was climbing a tall stalk of bamboo in his neighbor's backyard. The stalk bent into a power line, resulting in Justin's electrocution and eventual death. The boy's mother, Tricia Dominguez, filed a wrongful death action against FPL, the party responsible for the power line. She alleged that FPL was negligent because it failed to follow its own maintenance and safety standards when it failed to remove the bamboo, a fast growing and uncontrollable plant, from the area near the line. She further alleged that FPL had been warned about the bamboo at the accident site but still failed to remove it. As a result of this negligence, she argued that FPL created a dangerous safety hazard that ultimately claimed her son's life.

         In her punitive damages claim, Dominguez alleged that the scene of the accident was overgrown with trees and the power lines were not readily visible in the area around the bamboo. FPL's vegetation maintenance procedures explicitly recognize the risk of electrocution posed by foliage encroaching upon powerlines, including the danger to children who climb trees. Bamboo in particular is problematic because of its aggressive growth rate, so FPL designated it as a "critical removal" species that should be removed outright instead of merely trimmed when growing near power lines. Dominguez further alleged

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that FPL was made aware of the bamboo at the accident site by one of its auditing contractors, who recommended that it be removed. Despite this recommendation, FPL violated industry standards and its own vegetation maintenance policy by failing to remove this bamboo. Dominguez asserted that this failure warranted punitive damages because it was the direct result of a corporate policy that prioritized cutting costs and corporate greed over the lives and safety of the general public.

         Dominguez opted to pursue a direct corporate liability theory for punitive damages. She argued that punitive liability attached to FPL through the behavior of Barry Grubb, the head of vegetation management for the region in which the accident occurred and the person identified by FPL as being the most knowledgeable about its vegetation management program. Dominguez argued that Grubb was willfully ignorant about the circumstances and hazards surrounding Justin's death. When answering interrogatories, he claimed that no trimming or other maintenance was necessary at the accident site even though he had never visited the scene himself. At the time of his deposition years later, Grubb had still not visited the site and had no opinion on the adequacy of the maintenance there. He also testified that he was not familiar with language in FPL's vegetation maintenance rules about the danger of electrocution from foliage near power lines. In sum, the regional vegetation manager had taken a see-nothing, know-nothing approach. At the conclusion of trial, the jury agreed with this assessment and awarded $15 million in punitive damages.

         Direct liability is one of two theories recognized in Florida through which a corporation may be liable for punitive damages. Schropp v. Crown Eurocars, Inc., 654 So.2d 1158, 1159 (Fla. 1995). Under the direct theory, liability for gross negligence is established if the corporation itself engaged in conduct that was "so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct," and that conduct contributed to the loss of the injured party. § 768.72(2)(b), (3)(c), Fla. Stat. (2013). Moreover, because a corporation cannot act on its own, "there must be a showing of willful and malicious action on the part of a managing agent of the corporation" to establish direct punitive liability. Partington v. Metallic Eng'g Co., Inc., 792 So.2d 498, 501 (Fla. 4th DCA 2001) (citing Schropp, 654 So.2d at 1159).

         There is relatively little Florida case law defining a "managing agent" for purposes of direct corporate liability. However, the cases that do address this issue suggest that such an agent is more than just a manager or midlevel employee. See Ryder Truck Rental, Inc. v. Partington, 710 So.2d 575, 576 (Fla. 4th DCA 1998) ("[A] job foreman is not, as required for imposing direct liability, a managing agent of the company."); Capital Bank v. MVB, Inc., 644 So.2d 515, 521 (Fla. 3d DCA 1994) (citing Bankers Multiple Line Ins. Co. v. Farish, 464 So.2d 530 (Fla. 1985)) (holding that one of several bank vice presidents, who was not on the board of directors or the loan committee, did not qualify as a managing agent); Pier 66 Co. v. Poulos, 542 So.2d 377, 381 (Fla. 4th DCA 1989) (holding that a hotel manager was not a managing agent of the corporation that owned the hotel). Rather, a managing agent is an individual like a "president ...

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