FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Appellant, v. TRICIA DOMINGUEZ, as personal representative of the Estate of Justin Dominguez, Deceased, Appellee.
Case No. 2D18-2363
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
October 25, 2019
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
Appeal from the Circuit Court for Lee County; Geoffrey H. Gentile, Judge.
Opinion filed October 25, 2019.
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 Offiсes, 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.
Florida Power & Light Company (FPL) appeals a wrongful death judgment on a jury verdict awarding $12.5 million in noneconomic damages and $15 milliоn 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 оf 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 punitivе 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 maintеnance 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
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 interrоgatories, 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 nоt 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 еlectrocution 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 assessmеnt 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.
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 Multiрle 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 cоrporation 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).
Even if Grubb qualified as a managing agent, punitive damagеs 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, рunitive 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.”
Here, 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 cеrtainly 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 pеrmanent 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
Therefore, because Dominguez has not demonstrated punishable conduct by a managing agent of FPL, we reverse the award of punitive damages. We affirm in all other respects.
Affirmed in part, reversed in part, and remanded.
LUCAS and SMITH, JJ., Concur.