FLORIDA POWER & LIGHT COMPANY v. TRICIA DOMINGUEZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JUSTIN DOMINGUEZ ( 2019 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FLORIDA POWER & LIGHT )
COMPANY, a Florida Corporation, )
)
Appellant, )
)
v. ) Case No. 2D18-2363
)
TRICIA DOMINGUEZ, as personal )
representative of the Estate of Justin )
Dominguez, Deceased, )
)
Appellee. )
___________________________________)
Opinion filed October 25, 2019.
Appeal from the Circuit Court for Lee
County; Geoffrey H. Gentile, Judge.
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 Offices, 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.
KHOUZAM, Chief Judge.
Florida Power & Light Company (FPL) appeals a wrongful death judgment
on a jury verdict awarding $12.5 million in noneconomic damages and $15 million 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 of 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 punitive 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 maintenance 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
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power lines. Dominguez further alleged that FPL was made aware of the bamboo at the
accident site by one of its auditing contractors, who recommended that it be removed.
Despite this recommendation, FPL violated industry standards and its own vegetation
maintenance policy by failing to remove this bamboo. Dominguez asserted that this
failure warranted punitive damages because it was the direct result of a corporate policy
that prioritized cutting costs and corporate greed over the lives and safety of the general
public.
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
interrogatories, 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 not 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 electrocution 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
assessment 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
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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. § 768.72(2)(b), (3)(c), Fla. Stat. (2013). Moreover, because a
corporation cannot act on its own, "there must be a showing of willful and malicious
action on the part of a managing agent of the corporation" to establish direct punitive
liability. Partington v. Metallic Eng'g Co., Inc., 792 So. 2d 498, 501 (Fla. 4th DCA 2001)
(citing Schropp, 654 So. 2d at 1159).
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 Multiple 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 corporation 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).
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Here, Dominguez sought punitive damages under the direct liability theory
through the alleged gross negligence of Barry Grubb, a regional supervisor in FPL's
vegetation management program. At trial, Grubb was identified as the FPL employee
with the most knowledge about this program. However, he testified that he was only in
charge of the program for a limited geographical area. He also testified that he has a
manager and that he does not make policy decisions relating to the program. While his
position certainly comes with significant managerial power, we hold that Grubb does not
qualify as a managing agent of FPL. Overseeing only a portion of FPL's arborist
program, which is itself ancillary to FPL's primary function of providing electric power,
Grubb is at best a midlevel employee more akin to one of the vice presidents in Capital
Bank or the hotel manager in Poulos than to a corporate officer or official who could
represent FPL as a whole.1 Because Grubb is not a managing agent for purposes of
direct punitive liability, the award of punitive damages in this case must be reversed.
Even if Grubb qualified as a managing agent, punitive damages 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, punitive conduct must be "so reckless or wanting in care that it constitute[s] a
1We note that the trial judge was concerned by the holding in Winn-Dixie
Stores, Inc. v. Robinson, 472 So. 2d 722, 723-24 (Fla. 1985), in which the Florida
Supreme Court held that direct corporate liability applied where an assistant store
manager participated in the wrongful arrest of a store patron. That opinion may be read
to imply that the assistant manager of a grocery store can be a corporate agent for
purposes of direct liability. However, the issues litigated in the case did not include
whether the assistant manager was a "managing agent," and the district court below
found that the corporate defendant had waived that argument. See Robinson v. Winn-
Dixie Stores, Inc., 447 So. 2d 1003, 1005 (Fla. 4th DCA 1984).
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conscious disregard or indifference to the life, safety, or rights of persons exposed to
such conduct." § 768.72(2)(b). See also BDO Seidman, LLP v. Banco Espirito Santo
Intern., 38 So. 3d 874, 876-77 (Fla. 3d DCA 2010).
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
certainly 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 permanent 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
other grounds in Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000); Estate
of Williams ex rel. Williams v. Tandem Health Care of Fla., Inc., 899 So. 2d 369, 371-72,
377-78 (Fla. 1st DCA 2005) (holding that death of a nursing home resident from a fall
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did not warrant punitive damages even though resident had fallen before and defendant
took no steps to prevent future falls); Gerber Children's Centers, Inc. v. Harris ex rel.,
484 So. 2d 91, 91-92 (Fla. 5th DCA 1986) (holding that injuries sustained by a toddler
who fell out of a window did not warrant punitive damages even though several
employees warned defendant's management that the window's glass was unsafe). As
in those cases, Dominguez has not demonstrated a willful and malicious action on the
part of Barry Grubb or FPL that is equivalent to criminal manslaughter and punitive
damages should not have been awarded.
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.
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