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In a case involving one of the largest civil verdicts in state history, Florida Supreme Court justices expressed dismay at Florida Power & Light’s claim that it had no duty to warn the public after it cut power to a traffic light on a Miami-Dade street in 1997 — an event that was followed by a fatal car crash. During oral arguments before the court last week, FPL argued that it was not responsible for the death of a 12-year-old girl who was killed at a Pinecrest, Fla., intersection where an FPL technician had cut off power to the signal. Her parents went before the high court to restore a multimillion-dollar award by a Miami-Dade Circuit jury that found the utility responsible for their daughter’s death. But the verdict was wiped out after the 3rd District Court of Appeal, in a 5-3 decision, found the company had no liability. Gary Sasso, arguing on behalf of FPL, insisted the DCA decision should stand. He said the Juno Beach, Fla.-based power company had no duty to the public other than to restore power as quickly as possible. “To impose upon the power company a duty to inspect and secure an intersection that may be affected by lights taken out of service would be an untenable burden,” said Sasso, a shareholder at Carlton Fields in Tampa, Fla. But some of the justices expressed discomfort with the idea. “When the power company de-energizes power along a roadway or at a home, are you saying they are under no obligation to check anything at all?” Justice R. Fred Lewis asked Sasso incredulously. “They are under an obligation to do their job, which is to get the power back up for the public health, safety and welfare for all people and to do so in a way that contains the risk of electrocution, as they did in this case,” Sasso replied. But appellate lawyer Joel Eaton argued to reinstate the multimillion-dollar verdict in favor of Walter and Rosalie Goldberg. Their daughter, Jill, died after their car was broadsided in the middle of the darkened intersection. “Once you create a dangerous condition by shutting down the light at a dangerous intersection under horrible weather, you have a duty to protect the motoring public from what you are doing,” Eaton, a partner at Podhurst Orseck in Miami, told the court. After the trial in 1999, a Miami-Dade jury found FPL 100 percent liable for the accident and hit the utility company with $37 million in damages. But that amount was reduced to $10 million in 2002, when a three-judge panel of the 3rd DCA ruled that the original award was excessive. FPL responded by seeking an en banc review by the entire 3rd DCA. A year later, the court voted to throw out the entire jury award. Writing for the majority, Chief Judge Alan Schwartz said that the disabled traffic light was not the cause of the accident. He concluded that the accident was the result of the negligence of the drivers involved in the crash. When traffic lights go out, it is up to the drivers to follow traffic laws that require motors to treat the intersection as a four-way stop, the court said. The 3rd DCA has routinely used this theory to justify throwing out numerous lawsuits against FPL in cases involving the death or injury of motorists at intersections where the traffic signals are down. Appellate Judges David Levy, David Gersten, Melvia Green and John Fletcher joined in the majority decision in the Goldberg case. Judges Gerald Cope, Robert Shevin and Mario Goderich, the original panel that upheld FPL’s liability but reduced the award to $10 million, dissented. The fatal accident occurred on a stormy day in September 1997, when a lightning strike dropped a power line into the back yard of a residence near the intersection of Ludlum Road and Southwest 120th Street in Pinecrest. The downed line was reported to FPL, which responded at about 2 p.m. A Pinecrest police officer also arrived on the scene, but was sent away by the FPL worker, Ray Woodard. Woodard told the officer that FPL had the situation under control. Shortly thereafter, six additional FPL workers arrived to help assess the situation. The crew decided to fix the downed line by opening a second fuse on the pole that controlled the power to the traffic light while rerigging the downed line. This shut off the power to the traffic light at the nearby intersection. The FPL crew — who had all been trained in directing traffic and had two-way radios, flashers, hazard lights and traffic cones on their truck — did not call the police or help drivers navigate the busy intersection. At the trial, FPL worker Woodard, who pulled the second fuse, claimed he had no idea that his actions had disabled the traffic signal. He said he couldn’t see the pull box cover on the pole clearly marking it as the power line to the traffic signal because it was covered by foliage. Two hours after the traffic light was disabled, Rosalie Goldberg was driving her daughter, Jill, home from school during rush hour traffic. As they drove toward the darkened intersection, another car rear-ended the Goldbergs, pushing their car into the intersection, where it was broadsided by a Chevrolet Suburban on the passenger side. Jill Goldberg, who was rushed to the hospital, died the next day. The Goldbergs sued FPL for negligence for failing to take any precautions to protect drivers after one of its workers disabled the traffic signal. The Goldbergs also said FPL had agreed to notify the Pinecrest village manager of any planned outages so it could send police officers to direct traffic. But FPL claimed it had a verbal agreement with Pinecrest that did not constitute a binding contract. It also claimed that the disabled traffic light in the Goldberg case was not a planned outage for routine maintenance, but an emergency that did not require notifying Pinecrest officials. “Has Florida Power & Light told their employees that when they are doing maintenance work, they don’t have to worry what power is being cut off?” Chief Justice Barbara Pariente asked Sasso. “No, the record shows that the power company, as a business practice, does try to provide notice when they are dealing with planned, scheduled outages and emergency restorations,” Sasso said. But the justices were clearly troubled with Sasso’s position that FPL had no duty to warn the public or take precautions when its own crew disabled power to a traffic signal at a major intersection. “Isn’t there a duty, if you’re cutting off power, to know what you’re doing?” Justice Harry Lee Anstead asked. “I am having difficulty with you saying that there is absolutely no duty.” “No court has imposed on power companies a duty to know the consequences to noncustomers,” Sasso said. “Especially here, which involved an unintentional deactivation of power at the pole. The linemen were not aware that it was connected to a traffic light.” But Eaton countered that whether or not the linemen knew or should have known they were disabling a traffic light was a question already answered by the jury. Justice Raoul G. Cantero III questioned why the jury didn’t assign any liability to the drivers for their role in causing the accident. Eaton responded that they were given that opportunity on the verdict sheet, but instead assigned all liability to FPL. The jury’s verdict was supported by the evidence because the day of the accident, the weather was so bad that the drivers could barely see the car in front of them. They couldn’t tell they were entering an intersection, Eaton said. Because there was no visibility, the drivers couldn’t follow the four-way stop traffic law, he said. Eaton distinguished the Goldberg case from the numerous other cases involving traffic light outages caused by power surges or acts of God, such as hurricanes or lightning. In this case, the hazard was created by FPL, Eaton said. The utility company itself created the “zone of risk,” Eaton said. “Mr. Woodard knew exactly what he was doing and simply didn’t care,” Eaton told the court. “He left those drivers to fend for themselves. It is bad public policy for the 3rd DCA to say the power company doesn’t even have a common sense obligation once they created a known danger.”

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