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Florida State Court of Appeal Rules Public Utility Company Not Liable for Nursing Home Deaths During Power Outage

Author: Amy Chambers

Guest Editor: Ashley Kaye

June 1, 2020 9:00am

On May 20, 2020, the Fourth District Court of Appeal for the State of Florida affirmed a circuit court decision dismissing defendant Florida Power & Light Company (“FPL”) from a lawsuit alleging negligence and strict liability claims.[1]  Plaintiff Christine Cooper, who was a resident of the defendant skilled nursing facility, Rehabilitation Center of Hollywood Hills, LLC, in September of 2017, filed the lawsuit after Hurricane Irma struck South Florida.[2]

Ms. Cooper alleged the hurricane caused the center to lose power, and that the air-conditioning failed.[3] While some electricity was restored, there was no power for air-conditioning, and the center did not have a generator.  As a result, “the residents were kept in sweltering conditions.”  After three days without power, a 911 call was placed to report a resident in cardiac distress.[4]  When emergency personnel responded, they found dozens of elderly suffering in the heat, and that many residents had died.[5]

Ms. Cooper claimed FPL shared in the responsibility for the deaths and injuries sustained at the center.  The complaint alleged, “FPL owed a general duty to the public, including Cooper, to exercise a high degree of care in the operation and maintenance of its power lines and power grid,” and that FPL violated this duty in a number of ways including failing to timely respond to an emergent situation and failing to make timely repairs.[6]

At the trial level, FPL moved to dismiss the complaint on the grounds that its Tariff provisions precluded liability and that it does not owe a generalized duty to the public to provide continuous electricity after a hurricane.[7]  The trial court granted the motion to dismiss, determining that FPL owed no common law duty to the residents of the skilled nursing facility.  Both Ms. Cooper and the defendant Rehabilitation Center appealed.

In analyzing whether FPL owed Ms. Cooper a duty of care, the Court of Appeal reasoned, “the duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.”[8]  With that principle in mind, the Court stated that by accepting Ms. Cooper’s allegation of duty, the ‘zone of risk’ would encompass the entire population of persons and property for which electricity is supplied, thus making FLP an insurer of the supply of electricity.[9]  Both Ms. Cooper and the defendant Rehabilitation Center conceded FPL is not an insurer of electricity, nor is there any case law establishing as much.[10]

The Court of Appeal also rejected Ms. Cooper’s argument that the undertaker doctrine creates liability for FPL.[11] The undertaker doctrine stands for the proposition that where one undertakes to provide a service to others, gratuitously or by contract, the individual who undertakes to provide the service assumes a duty to act carefully and to not put others at an undue risk of harm.[12] The Court of Appeal determined that the undertaker doctrine did not apply to Ms. Cooper’s complaint because it made no allegation that FPL had any contractual obligation, or that it had agreed to immediately provide power to the air conditioning units at the Rehabilitation Center.[13]

Finally, the Court of Appeal recognized that the “legal duty is imbued with public policy considerations.” The Court stated:

“Were we to find such a duty, it would open up public utilities to enormous liability for every conceivable injury, both personal and property, which may occur during a power outage.  And to have a jury assess the adequacy of FPL’s plans and performance during an event, such as an outage due to a hurricane, would interfere with the extensive regulation of public utilities already required through the Public Service Commission…Such a drastic shift of liability to a public utility is more properly made by the legislature or Public Service Commission.”[14]

Takeaway

Dozens of additional lawsuits have been filed against FPL by other residents of the Rehabilitation Center in connection with heat-related injuries following Hurricane Irma power outage.[15] To date, Ms. Cooper’s is the only suit that has been dismissed by a trial court.  Whether the Court of Appeal’s decision will affect those cases will depend on the nature and scope of the allegations in the plaintiffs’ pleadings.  If they are alleging, similar to Ms. Cooper, that FLP owed a general duty of care, then the actions likely will not stand.

This case is a win for public utilities in the state of Florida, a state that will unfortunately continue to experience the devastating effects of hurricanes on its infrastructure, which can lead to power outages for days and even weeks.

 

[1] Rehabilitation Center at Hollywood Hills LLC et al. v. Florida Power & Light Company, case numbers 4D19-1786 and 4D19-1787.

[2] Id. at p. 2.

[3] Id. at pp. 2-3

[4] Id. at p. 3.

[5] Id.

[6] Id. at pp. 3-4.

[7] Id. at p. 4.

[8] Id. at p. 5, citing McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 1992).

[9] Id. at pp. 5-6.

[10] Id. at p. 6.

[11] Id. at pp. 6-7.

[12] Id. at p. 7, citing Clay Electric Cooperative, Inc. v. Johnson, 873 S. 2d 1182, 1186 (Fla. 2003).

[13] Id.

[14] Id. at p. 10.

[15] https://www.law360.com/articles/1275527/utility-ntysonot-liable-for-hurricane-outage-at-nursing-home

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