Joel Roth and Sagi Shaked
Joel Roth and Sagi Shaked (J. Albert Diaz)

Case: Betty Botta v. Florida Power & Light

Case no: 502011CA012593XXXXMB

Description: Negligence

Filing date: Aug. 22, 2011

Trial dates: Dec. 10-16, 2013

Judge: Palm Beach Circuit Judge Joseph Marx

Plaintiffs attorneys: Sagi Shaked and Joel Roth, Shaked Law Firm, Miami, and Robert Solomon, Saban & Solomon, Plantation

Defense attorney: Eric Hoecker and David Austin, FPL Law Department, Juno Beach

Jury award: $1.35 million

Details: At dusk on March 7, 2011, an elderly couple, Charles and Betty Botta were driving home to Delray Beach from a visit with family in Boynton Beach. Charles Botta, who was driving their four-door sedan, entered a neighborhood during a power outage. Street lights and homes had gone dark.

A few minutes before, an FPL service truck had parked in the street, and the driver went into a backyard to inspect a transformer.

Charles was in the southbound lane of Southwest 18th Street in Boynton Beach when he rear-ended the parked service truck. The collision caused the passenger airbag to deploy. Betty Botta, 86 at the time, had her left arm below the elbow severed by the airbag.

The Bottas sued FPL for general negligence and negligent training. FPL did not make a pretrial settlement offer.

Plaintiffs case: The Bottas alleged the driver did not set up warning devices in the roadway as required by law. The driver also did not turn on the truck’s flashing, blinking or strobe lights. Charles Botta and an eyewitness testified the truck was lit by only its running lights, Shaked said.

The jury was told the truck occupied almost the entire width of the southbound lane on the two-lane road.

Bernard Gerstman, a biophysics professor at Florida International University, testified for the Bottas. Charles Botta, 87 at the time of the collision, suffers from macular degeneration. It was Gerstman’s task to explain how the environmental conditions could lead someone with ordinary eyesight to have an accident.

Gerstman “explained the dangers of not putting out the warning devices and how people respond to certain stimuli. He said a tail light doesn’t indicate if a vehicle is moving even if it’s flashing,” Shaked said.

Defense case: Austin said the truck had all of its lights activated including amber rotating strobe lights on top of the truck, white floodlights on each side of the cab, four-way flashing hazard lights and parking lights.

It was undisputed that no hazard warning devices were placed on the pavement.

FPL called Charles Botta’s ophthalmologist to testify he was legally blind in his left eye and had deteriorated vision in his right eye even with corrective lenses.

Calling Charles Botta “the one-eyed man” throughout the trial, the defense attorneys argued he simply failed to see what was there to be seen.

Richard Cabrera, the defense accident reconstructionist, testified there was no way to prevent the accident due to Botta’s poor vision. Even if warning devices had been in place, he said there still would have been an accident, and Botta should not have been driving.

Outcome: The jury found FPL 100 percent at fault and awarded Betty Botta $1 million for pain and suffering. Charles Botta was awarded $350,000 for loss of consortium. The plaintiffs did not seek other damages.

Comments: “Justice was served. I hope that FPL will follow federal and Florida law so nobody ever gets injured again because of FPL’s negligent acts,” Shaked said.

Post-verdict: Final judgment was entered Dec. 30. FPL filed a motion for new trial or remitittur. The Bottas have a pending motion to tax costs.