IN THE SUPREME COURT OF FLORIDA CASE NO. SC STACI LEVY, as Personal Representative of THE ESTATE OF BRANDON LEVY. Petitioner, vs.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC STACI LEVY, as Personal Representative of THE ESTATE OF BRANDON LEVY Petitioner, vs. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Respondent. RESPONDENT, FLORIDA POWER & LIGHT COMPANY S BRIEF ON JURISDICTION E. BRUCE JOHNSON Florida Bar No TAMARA M. SCRUDDERS Fla. Bar No JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & McDUFF, P.A E. Sunrise Blvd., 10 th Floor Fort Lauderdale, FL Tel: (954) Fax: (954) Attorneys for FPL

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3 TABLE OF CONTENTS Table of Authorities...i Statement of the Facts and of the Case...1 Summary of Argument...2 Argument...3 Conclusion Certificate of Service Certificate of Font Size and Type Style i

4 TABLE OF AUTHORITIES Abravaya v. Florida Power & Light Co., 39 Fla. Supp. 153 (Fla. Cir. Ct. 1973)...4 Adoptie By and Through Adoptie v. Southern Bell Telephone & Telegraph Co., 426 So.2d 1162 (Fla. 3d DCA 1983)...7 Arenado v. Florida Power & Light Co., 523 So.2d 628 (Fla. 4 th DCA 1988), rev. dismissed, 541 So.2d 612 (Fla. 1989)...4 Clay Electric Inc. v. Johnson et al., 873 So.2d 1182 (Fla. 2003)... 3,4 Derrer v. Georgia Electric Co So.2d 593 (Fla. 3d DCA 1989 rev. denied, 545 So.2d 1366 (Fla. 1989)...7 Goldberg v. Florida Power & Light Co., 856 So.2d 1011 (Fla. 3d DCA 2003), rev. granted, Case No. SC Hardee v. State of Florida, 534 So.2d 706 (Fla. 1988)...1 Johnson v. Lance, 790 So.2d 1144 (Fla. 1 st DCA 2001)...5 Martinez v. Florida Power & Light Co., 863 So.2d 1204 (Fla. 2003)... 3,4 McCain v. Florida Power & Light Co., 593 So.2d 500 (Fla. 1992) ii

5 Metropolitan Dade County v. Colina, 456 So.2d 1233 (Fla. 3d DCA 1984) rev. denied, 464 so.2d 554 (Fla. 1985)...7 Metropolitan Dade County v. Tribble, 616 So.2d 59 (Fla. 3d DCA 1993) rev. denied, 626 So.2d 210 (Fla. 1993)...7 Oliver v. Eisenman, 523 So.2d 189 (Fla. 1 st DCA 1988)...7 Our Lady of Divine Catholic Church v. City of Sweetwater, 482 So.2d 440 (Fla. 3d DCA 1986)...8, 9, 10 Reaves v. State, 485 So.2d 829 (Fla. 1986)...1 Other Authorities Art. V, 3(b)(3), Fla. Constit (2), Florida Statutes , Florida Statutes...6 STATEMENT OF FACTS AND OF THE CASE iii

6 The only facts relevant to the Court s decision on whether there is conflict jurisdiction are those that are recited in the decision below. Therefore, Petitioner s additions must be disregarded. Reaves v. State, 485 So.2d 829, 830, n.3 (Fla. 1986); Hardee v. State of Florida, 534 So.2d 706, 708 (Fla. 1988). The pertinent facts are: On July 1, 1997, twelve-year-old Brandon Levy was killed while crossing the street with his bicycle at the intersection of Coral Ridge Drive and Lake View Drive. When Brandon approached the intersection with his friend David Lowe, the boys noticed that the traffic light was not working. The traffic light was owned and operated by Broward County Traffic Control. Respondent, Florida Power & Light Company ( FPL ) supplied electric power to the light. David Lowe crossed the road first. Brandon hesitated for a minute before entering the intersection. James Calvert drove his car towards the intersection just as the boys began to cross the road. Calvert did not slow down. He saw David cross the street on his rollerblades, but his view of Brandon was blocked by another car. Immediately after Calvert s passenger yelled, bike, bike, Calvert s car hit Brandon, causing his death. Brandon s mother sued FPL. The Second Amended Complaint alleged that 2

7 the interruption of power to the traffic light and its malfunction were caused by the negligence of FPL in failing to provide adequate safe-guards against such interruptions of power at busy and dangerous intersections. The Complaint alleged that FPL had notice of the problems associated with the power supply to the traffic light and had acted negligently in failing to timely restore power and notify the public and proper authorities. The trial court granted FPL s motion for summary judgment, and the Fourth District affirmed on two (2) separate and distinct grounds. First, the Fourth District found that FPL owed no duty to Brandon Levy in supplying electricity to the traffic light, which was owned and operated by Broward County Traffic Control. Second, the Fourth District found that Calvert s failure to stop at the intersection was a superceding intervening cause relieving FPL of any liability. SUMMARY OF ARGUMENT There is not a single decision from this Court or any of the district courts that directly and expressly conflicts with the Fourth District s decision in Levy, in which the court held that by providing electricity to an area which included a traffic light that was owned and operated by Broward County Traffic Control, FPL did not assume a duty of care, and in which the court also held that a driver s failure to treat an intersection with a nonoperational traffic light as a four-way stop 3

8 sign as required by Florida Statutes, was a superceding intervening cause under the facts presented. ARGUMENT I. There is No Express or Direct Conflict with Clay Electric or Martinez. Clay Electric Cooperative, Inc. v. Johnson, 873 So.2d 1182 (Fla. 2003) and Martinez v. Florida Power & Light Co., 863 So.2d 1204 (Fla. 2003) are both streetlight maintenance cases. In these cases the Court in its own words ruled narrowly, 1 holding that when an accident occurs due to an inoperable streetlight (i.e., the lightbulb burned out), the company that agreed to maintain that light cannot be held liable to an injured party unless it can be shown that it assumed a specific, legally recognized duty to the plaintiffs to maintain the streetlight and was negligent in providing that maintenance. 2 For instance, in Clay Electric, the streetlight maintenance company was held to have assumed a duty by contracting with the Jacksonville Electric Authority to maintain the streetlights. In stark contrast, as the Fourth District s opinion makes clear, Levy is not a streetlight maintenance case it is a traffic signal case. More importantly, it is not 1 Martinez at In Clay Electric the Court expressly stated that the issue was whether Clay Electric owed the plaintiffs a legally recognized duty of care in maintaining the streetlights. 4

9 a case in which FPL is alleged to have owned, controlled or maintained the traffic signal at issue. Rather, it is a case in which FPL was alleged to have been negligent solely by failing to provide continuous electrical current to an area that included the traffic signal, which was owned and operated by Broward County Traffic Control. Neither Clay Electric nor Martinez addressed the issue considered in Levy. In fact, there is not a single case in Florida that has considered the issue presented in Levy that has held against the power company. Every Florida court that has considered the duty a serving utility owes to the motoring public has held that a utility does not owe a duty of care to motorists involved in accidents at intersections when the electrical current that feeds a traffic signal has been interrupted. For instance, in Arenado v. Florida Power & Light Co., 523 So.2d 628 (Fla. 4 th DCA 1988), the Fourth District held that an electric utility does not owe a duty to a driver who was killed in an accident at an intersection when the flow of electricity to a traffic light was interrupted. This Court dismissed review of Arenado based on its finding that there was no conflict. 541 So.2d 612 (Fla. 1989). See also, Abravaya v. Florida Power & Light Co., 39 Fla. Supp. 153 (Fla. Cir. Ct. 1973); Goldberg v. Florida Power & Light Company, 856 So.2d 1011 (Fla. 3d DCA 2003), rev. granted, 2004 Fla. Lexis 423 (Fla. Mar. 11, 2004), Case No. 5

10 SC The distinction between streetlight maintenance cases (like Clay Electric and Martinez) and cases that involve interruptions in power to traffic signals (like Levy) was expressly recognized in Johnson v. Lance, 790 So.2d 1144 (Fla. 1 st DCA 2001), the First District decision which was approved by the Court in Clay Electric. In Johnson, the First District distinguished the streetlight maintenance case at issue there from the traffic signal/power interruption cases like Arenado by noting that Johnson arose from a contract for the maintenance of a government improvement, whereas Arenado involved a contract between a utility and a governmental entity to provide electricity. The distinction made by the First District was specifically noted by the Fourth District in the Levy opinion. In her Amended Jurisdictional Brief the Petitioner implicitly acknowledges the distinction between the streetlight maintenance cases and the electrical current cases, noticeably sidestepping both the facts and the ( expressly narrow ) holdings in Clay Electric and Martinez because there simply is no direct and 3 While this Court has accepted review of Goldberg, Goldberg is distinguishable from Levy on numerous grounds, which is likely why Petitioner does not discuss the case in her Amended Jurisdictional Brief. Critically, Goldberg involved a situation where FPL was alleged to have assumed a specific duty through its actions, under particular circumstances to that case. 6

11 express conflict between these decisions and Levy. Rather than identify any specific conflict, Petitioner simply states that the cases are analogous and asks this Court to take the principles discussed in Clay Electric and Martinez and extend their application to the situation presented in Levy, which neither this Court nor any other has done before. The effort, however, ignores the absence of any direct and express conflict of decisions necessary to this Court s exercise of jurisdiction. Art. V, 3(b)(3), Fla. Constit.. The Fourth District s decision in Levy also does not conflict with Clay Electric or Martinez because in Levy the Fourth District based its decision on two separate grounds, each of which is independently sufficient to require that Levy s case fails as a matter of law. In Levy, in addition to finding that FPL owed no duty, the Court also held that any negligence of FPL could not have been a proximate cause of the accident because it was causally superceded by the actions of Calvert, in violation of , Florida Statutes. Clay Electric and Martinez do not address the issue of causation and have no application to cases like this involving drivers who fail to obey traffic laws. As the decision in Levy is supported by other grounds which (as detailed below) do not conflict with any other decision, review is unwarranted. II. There is No Express or Direct Conflict with Oliver or Our Lady of 7

12 Divine Catholic Church. As stated above, in Levy the Fourth District also held that Calvert s failure to stop at an intersection with an inoperable traffic light was a superceding intervening cause relieving FPL of any liability. Id., citing , Florida Statutes (2000)(providing that the driver of a vehicle approaching an intersection in which the traffic lights are inoperative shall stop.) The Fourth District s decision in this regard is consistent with every Florida case that has considered the issue. See, Metropolitan Dade County v. Tribble, 616 So.2d 59 (Fla. 3d DCA 1993), rev. denied, 626 So.2d 210; Derrer v. Georgia Electric Co., 537 So.2d 593 (Fla. 3d DCA 1988), rev. denied, 545 So.2d 1366 (Fla. 1989); Metropolitan Dade County v. Colina, 456 So.2d 1233 (Fla. 3d DCA 1984, rev. denied 464 So.2d 554 (Fla. 1985); Adoptie By and Through Adoptie v. So. Bell Telephone, 426 So.2d 1162 (Fla. 3d DCA 1983). Petitioner s assertion that Levy conflicts with Oliver v. Eisenman, 523 So.2d 189 (Fla. 1 st DCA 1988) is without merit. In Oliver, the First District simply upheld a jury s determination that a defendant involved in an accident was not negligent even though he admitted that he was speeding at the time of the accident in violation of (1), Florida Statutes. The Court stated that while the violation of the statute was evidence of the defendant s negligence, the statutory 8

13 violation was not conclusive proof of negligent causation, and that the jury was entitled to conclude that the actions of another motorist were the sole proximate cause of the accident. Most obviously, Oliver does not expressly and directly conflict with Levy because it does not involve an inoperable traffic signal or a violation of , Florida Statutes (2000). More importantly, Oliver addresses only the negligence of a speeding driver, and whether the act of speeding must be said to have been a cause in any accident which occurs. Unlike Oliver, the issue in Levy is whether FPL (the supplier of electricity to a traffic signal) can be said to have been negligent for failing to prevent an interruption in power to a traffic signal. By enacting , Florida Statutes, the Legislature has provided that when a traffic light becomes inoperable, the intersection is transformed by law into a four-way stop sign. Thus, FPL s failure to provide electricity to the traffic signal cannot be considered a cause of the accident as a matter of law. Rather, the actions of any motorist who does not stop at the now four-way stop will be said to have committed an intervening superceding act for which FPL is not liable. 4 Oliver does not even remotely address the issue. 4 Of course, here there was no dispute that Calvert did fail to stop at the 9

14 Petitioner s assertion that Levy also conflicts with Our Lady of Divine Providence v. City of Sweetwater, 482 So.2d 440 (Fla. 3d DCA 1986) is also without merit. Initially, Petitioner s assertion that the case stands for the proposition that in a case where a motorist is not oblivious and does not commit a willful act, the question of whether the motorist s conduct is a foreseeable intervening act is a question for a jury, is irrelevant on the facts of Levy. There is nothing in the Fourth District s opinion that states that Calvert was not oblivious. The Fourth District merely stated that Calvert did not notice that the traffic light was inoperable, and that he did not initially see Brandon Levy because his view was blocked by another car. These facts do not support the conclusion that Calvert was not oblivious in failing to stop at the inoperable traffic signal. 5 In addition, Our Lady Divine was a contribution action brought against the city by the driver of a vehicle involved in a multi-car collision. The driver asserted that the city was negligent for its failure to direct traffic during the time that the inoperable traffic light. 5 There is no indication in the Fourth District decision that it was not a clear day, that Brandon Levy was not in a crosswalk, and that Calvert s view of the traffic signal was obstructed in any way. 10

15 traffic signal controlling the intersection malfunctioned. 6 There was no claim against the city for causing the traffic signal to malfunction, and unlike in Levy, the requirements of and (2) were not triggered because the signal was not inoperable. Instead, the signal [for east-west traffic] turn[ed] directly from green to red, bypassing the intermediate caution light. The signal for traffic traveling north and south remained green. Id. at 441. The Third District found that a triable issue of fact existed on the question of whether the driver s actions were foreseeable since there was evidence that the driver did not know that the traffic signal was malfunctioning, and thus did not know when she proceeded through the intersection that drivers coming from other directions also faced a green light. Our Lady of Providence which did not involve an inoperable traffic signal and did not involve a claim against the power company for causing the malfunction- is clearly not in direct and express conflict with the Fourth District s decision in Levy. III. There is No Express or Direct Conflict with McCain. Finally, Levy does not conflict with McCain v. Florida Power & Light Co., 593 So.2d 500 (Fla. 1992). In McCain, FPL was found to have been negligent in 6 A city police officer was present when the accident occurred but was 11

16 advising an injured party as to the location of underground cables. There the injury resulted from FPL s assumption of a special duty to the injured party, after direct contact was made with equipment owned and maintained by FPL. Unlike in McCain, in Levy FPL assumed no duty. The traffic light was owned, operated and maintained by Broward County. It was up to the County to obtain backup power if it so desired. CONCLUSION As there is no direct and express conflict, this Court should deny review. Certificate of Service I hereby certify that a true copy of the foregoing was furnished this day of February, 2005 via U.S. Mail, to David H. Nevel, Esq., Nevel & Greenfield, P.A., Counsel for Petitioner,11900 Biscayne Blvd., Suite 612, North Miami, Florida 33181, and to Cheryl Kempf, Esq., FPL- Law Department, Co-counsel for doing paperwork instead of directing traffic. 12

17 Respondent, 700 Universe Blvd., Juno Beach Florida TAMARA M. SCRUDDERS Fla. Bar No E. BRUCE JOHNSON Fla. Bar No Certificate of Type Size and Font Style I hereby certify that the type size and font style of this brief is 14-point Times New Roman. TAMARA M. SCRUDDERS Fla. Bar No