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Supreme Court of Florida Supreme Court of Florida


____________

No. SC03-1942
____________

WALTER GOLDBERG, etc., et al.,
Petitioners,

vs.

FLORIDA POWER & LIGHT COMPANY,
Respondent.

[April 7, 2005]
CORRECTED OPINION

LEWIS, J.

We have for review Florida Power & Light Co. v. Goldberg, 856 So. 2d
1011 (Fla. 3d DCA 2002), which expressly and directly conflicts with this Courts
decision in Martinez v. Florida Power & Light Co., 863 So. 2d 1204 (Fla. 2003).
We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. As more fully discussed
further herein, we quash the decision of the Third District Court of Appeal and
remand the case for reinstatement of the remitted final judgment as initially
ordered by that court.


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BACKGROUND AND FACTS

The instant action arises from a decision of the Third District Court of
Appeal reversing a judgment entered against Florida Power & Light (FPL) in
connection with the wrongful death action concerning the death of the Goldbergs
12-year-old daughter, Jill Goldberg. FPL terminated power to a traffic light which
resulted in a motor vehicle collision and the resulting death. Initially, a Third
District panel affirmed the trial courts order denying FPLs alternate motions for
directed verdict and a new trial, but determined that the $37 million in damages
awarded by the jury was excessive, and remanded the case for remittitur to $10
million. Thereafter, sitting en banc, the Third District Court of Appeal reversed
the initial panels decision and remanded the case with instructions to direct a
verdict and enter judgment in favor of FPL. We quash this decision and reinstate
the decision of the original Third District panel.
The Goldbergs action arose from a traffic accident that occurred in the
Village of Pinecrest on Friday, September 12, 1997, shortly after 5 p.m., which
resulted in their daughters death. Much earlier that day, weather had caused an
electric line to come down in the rear of the Fishbein residence, a private home
located on a side street (Southwest 122nd Drive), which intersects with 67th
Avenue in Pinecrest. The Fishbein residence is a large, walled home with a
motorized gate in front. The concerned homeowner notified law enforcement and
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Officer Laricci of the Pinecrest police department responded to the scene at
approximately 2 p.m. Ray Woodard, an FPL repairman, who had responded to a
call from the same residence approximately two weeks before this date, also
responded and established that there was no power flowing through the downed
line at this location. Shortly after Woodard arrived on the scene, the Fishbeins left
the residence. At approximately 3 p.m., FPL through Woodard informed Officer
Laricci that he was no longer needed at the scene and that he could leave the area.
Ultimately FPL dispatched six trucks and seven repair personnel to the
Fishbein residence and immediate area. To prevent an occurrence referred to as
backfeed, the FPL crew determined that they should deactivate power on an
adjacent line which was connected to the same utility pole as the downed line. To
accomplish this task, the crew decided to de-energize the adjacent line by opening
a fuse on the utility pole which was located near the Fishbein property, and
positioned approximately 100 to 150 feet from the traffic light that controls the
intersection of Southwest 67th Avenue
1
and 120th Street, a major intersection in
Pinecrest. At 4:42 p.m., Woodard proceeded to the utility pole in question, opened
the fuse and terminated power to the parallel line, rendering the traffic signal
totally inoperable. Despite numerous contrary factors, Woodard claimed that he

1. This section of 67th Avenue is also known as Ludlam Road.
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did not actually know that the fuse also controlled the traffic signal at this
intersection.
Jill Goldberg was a passenger in a car driven by her mother, Rosalie
Goldberg. Shortly after 5 p.m., the Goldbergs were traveling north on 67th
Avenue following a line of vehicles, none of which were stopping at the inoperable
traffic light deactivated by FPL at the intersection of 67th and 120th. Cynthia
Sollie, who had traveled eastbound on 120th Street, stopped her Ford Expedition at
this inoperable traffic light in an eastbound direction on 120th Street, but pulled
out slowly onto 67th Avenue, attempting to find an opening in the flowing line of
traffic proceeding along 67th Avenue on this rain-filled afternoon. Sollies vehicle
clipped the left rear of the Goldberg vehicle, causing it to rotate and slide in a
northbound direction, into the southbound lane of travel on 67th Avenue. The
Goldbergs vehicle was moving sideways at the time and was impacted on the
passenger side by a Chevy Suburban traveling southbound on 67th Avenue. Jill
Goldberg was immediately airlifted from the intersection to the trauma center at
Jackson Memorial Hospital where she died the next day.
Walter Goldberg and Rosalie Goldberg, as personal representatives of the
Estate of Jill Goldberg, filed this action seeking damages from FPL for wrongful
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death and negligence. The complaint alleged, in pertinent part,
2
that FPL had a
duty not to create a hazardous condition at the subject intersection by terminating
power without providing for traffic control, or warning the appropriate
governmental authorities or motorists when it was reasonably foreseeable that
harm would occur absent traffic control. The Goldbergs contended that as a result
of FPLs breach of this duty, traffic proceeded through the intersection in an
uncontrolled manner and Jill Goldberg was killed. FPL countered that it had no
common law duty to the general public for the operation of traffic signals.
After a week-long trial, the jury found for the plaintiffs, awarding the
Goldbergs approximately $37 million in damages. The jury verdict form reflected
a finding of negligence on the part of FPL which was the legal cause of Jill
Goldbergs death, and no negligence attributable to either Cynthia Sollie or Rosalie
Goldberg. Pertinent to the instant analysis, FPL requested the entry of a directed
verdict in its favor. The trial court denied the motion, concluding that ample
evidence had been presented that Woodard, FPLs agent, should have known that


2. The complaint also alleged that FPL had represented to the Manager of
the Village of Pinecrest that the company would notify the local government
whenever it intended to terminate power to a portion of the Village, and thus
assumed the duty to provide such advance notice. FPL countered that it owed no
contractual duty to warn the Village of Pinecrest because the traffic signal was
inadvertently deactivated during the performance of emergency restoration work,
not during a scheduled power outage. Our decision rests on FPLs common law
duty to warn, and, consequently, we will not address whether or not FPL also had
assumed an additional duty to notify the Village of Pinecrest of the power outage.
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he was de-energizing the source of electrical power to the traffic signal, and that
FPLs failure to provide any type of warning concerning the intentional power
interruption and the dangerous condition resulting at the intersection created a
reasonable foreseeable zone of risk to others which gave rise to a duty to warn
affected motorists. On the issue of proximate causation, the trial court
distinguished and refused to apply a line of cases generated within the Third
District holding that a drivers negligence in failing to treat an inoperable signal as
a four-way stop as required by Florida law always constitutes an intervening
superseding cause as a matter of law relieving the original negligent actor of
liability.
A three-judge panel of the Third District affirmed the trial courts refusal to
direct a verdict. However, the Third District sitting en banc reversed the decision
of the initial district court panel. Issuing a brief opinion, the district court at that
time relied solely on its decision in Martinez v. Florida Power & Light Co., 785
So. 2d 1251 (Fla. 2d DCA 2001), which this Court has since quashed based on
later developing authority, see Martinez, 863 So. 2d at 1205, to conclude that FPL
owed no common law duty whatsoever to Jill Goldberg. The district court also
invoked district precedent and determined that no negligence with respect to the
operation of the traffic light could have been the legal or proximate cause of the
accident because it was causally superseded as a matter of law by the actions of the
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drivers involved in the collision. Having determined that the Goldbergs could
satisfy neither the duty nor prox