FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Appellant,
TRICIA DOMINGUEZ, as personal representative of the Estate of Justin Dominguez, Deceased, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Geoffrey H. Gentile,
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.
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.
Power & Light Company (FPL) appeals a wrongful death
judgment on a jury verdict awarding $12.5 million in
noneconomic damages and $15 million in punitive damages to
Tricia Dominguez, as personal representative of the estate of
Justin Dominguez. We affirm the award of noneconomic damages
without comment but reverse the award of punitive damages.
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.
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 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.
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
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).
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 [or] primary owner" who holds a
"position with the corporation which might result in his
acts being deemed the acts of the corporation."
Taylor v. Gunter Trucking Co., Inc., 520 So.2d 624,
625 (Fla. 1st DCA 1988).
Dominguez sought punitive damages under the direct liability
theory through the alleged gross negligence of Barry Grubb, a
regional supervisor in FPL's vegetation management
program. At trial, Grubb was identified as the FPL employee
with the most knowledge about this program. However, he
testified that he was only in charge of the program for a
limited geographical area. He also testified that he has a
manager and that he does not make policy decisions relating
to the program. While his position certainly comes with
significant managerial power, we hold that Grubb does not
qualify as a managing agent of FPL. Overseeing only a portion
of FPL's arborist program, which is itself ancillary to
FPL's primary function of providing electric power, Grubb
is at best a midlevel employee more akin to one of the vice
presidents in Capital Bank or the hotel manager in
Poulos than to a corporate officer or official who
could represent FPL as a whole. Because Grubb is not a managing
agent for purposes of direct punitive liability, the award of
punitive damages in this case must be reversed.
Grubb qualified as a managing agent, punitive damages are
only warranted if there is evidence of negligence on
Grubb's part "equivalent to the conduct involved in
criminal manslaughter." Valladares v. Bank of Am.
Corp., 197 So.3d 1, 11 (Fla. 2016) (citing Como Oil
Co., Inc. v. O'Loughlin, 466 So.2d 1061, 1062 (Fla.
1985)). Indeed, punitive conduct must be "so reckless or
wanting in care that it constitute[s] a conscious disregard
or indifference to the life, safety, or rights of persons
exposed to such conduct." § 768.72(2)(b). See
also BDO Seidman, LLP v. Banco Espirito Santo Intern.,
38 So.3d 874, 876-77 (Fla. 3d DCA 2010).
the trial testimony established that Barry Grubb was not
directly involved with the accident and did not know about
the details of Justin's death until years after the fact.
Grubb also seemed unaware of specific FPL safety standards
cited by Dominguez despite being identified as the person
most knowledgeable about FPL's vegetation program.
Whatever negligence a jury may infer from this evidence, it
certainly does not rise to the level of "reckless
disregard of human life" or an "entire want of
care, which would raise the presumption of a conscious
indifference to consequences." Air Ambulance
Prof'ls, Inc. v. Thin Air, 809 So.2d 28, 31 (Fla.
4th DCA 2002) (quoting Am. Cyanamid Co. v. Roy, 498
So.2d 859, 861-62 (Fla. 1986)). Florida courts have reversed
punitive damage awards under facts involving similar or more
egregious conduct than that alleged in this case. See
Como Oil, 466 So.2d at 1061-62 (holding that serious
injuries to plaintiff from a gasoline explosion, involving an
unsafe gas truck and a driver who negligently overfilled an
underground gas tank, did not warrant punitive damages);
White Constr. Co., Inc. v. Dupont, 455 So.2d 1026,
1027-28 (Fla. 1984) (holding that accident causing permanent
disability to plaintiff did not warrant punitive damages
despite defendants' knowledge that the offending loading
vehicle's brakes had been defective for some time),
receded from on other grounds in Murphy v. Int'l
Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000);
Estate of Williams ex rel. Williams v. Tandem Health Care
of Fla., Inc., 899 So.2d 369, 371-72, 377-78 (Fla. 1st
DCA 2005) (holding that death of a nursing home resident from
a fall did not warrant punitive damages even though resident
had fallen before and defendant took no steps to prevent
future falls); Gerber Children's Centers, Inc. v.
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