Preview
Filing # 177986374 E-Filed 07/21/2023 03:38:20 PM
IN THE CIRCUIT COURT OF THE
15TH JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO.: 50-2022-CA-007412XXXXMB
DIV.: AJ
CHRISTOPHER ROSSI,
Plaintiff,
v.
FLORIDA POWER & LIGHT COMPANY,
a Florida corporation,
Defendant.
__________________________________/
FLORIDA POWER & LIGHT COMPANY’S ANSWER, AFFIRMATIVE DEFENSES AS
TO COUNT I & MOTION TO DISMISS COUNT II OF PLAINTIFF’S AMENDED
COMPLAINT & THIRD-PARTY COMPLAINT AGAINST CIVIL SEARCH
INTERNATIONAL, LLC
Defendant, FLORIDA POWER & LIGHT COMPANY (“FP&L” or “Defendant”), by
and through the undersigned counsel, and pursuant to the applicable Florida Rules of Civil
Procedure, hereby files this Answer, Affirmative Defenses, and Demand for Jury Trial as to
Count I and Motion to Dismiss Count II of Plaintiff’s, CHRISTOPHER ROSSI (“Plaintiff”)
Amended Complaint and Third Party Complaint Against CIVIL SEARCH INTERNATIONAL,
LLC (“CSI”), and in support thereof, states as follows:
ANSWER & AFFIRMATIVE DEFENSES AS TO COUNT I
1. Admitted only that Plaintiff is claiming in excess of the jurisdictional limits of
this Court. Otherwise, denied.
2. Without sufficient knowledge, therefore denied.
3. Admitted.
4. Admitted.
FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 07/21/2023 03:38:20 PM
COUNT I NEGLIGENCE CLAIM AGAINST FP&L
5. FP&L adopts and re-alleges its responses to Paragraphs 1 through 4 above as if
set forth fully herein.
6. Denied.
7. Denied as phrased.
8. Without sufficient knowledge, therefore denied.
9. Admitted that FP&L contracted with a non-party for the work that was performed
by the Plaintiff. Otherwise, denied as phrased.
10. Denied.
11. Without sufficient knowledge, therefore denied as to the specific work the
Plaintiff was assigned to perform. Denied that FP&L was “retained” to activate a “One shot or
circuit breaker on the line”.
12. Denied.
13. Denied.
14. Denied.
15. Denied.
16. Denied, including all sub-paragraphs.
17. Denied, including all sub-paragraphs.
18. Denied.
COUNT II STRICT LIABILITY AGAINST FLORIDA POWER AND LIGHT
COMPANY FOR ULTRAHAZARDOUS ACTIVITY
Count II and all the allegations contained therein are subject to FP&L’s Motion to
Dismiss. See infra.
AFFIRMATIVE DEFENSES
1. If Plaintiff has suffered injuries or losses as alleged, these are the proximate result
of negligence by or on behalf of the Plaintiff by reason of which Plaintiff’s recovery, if any, must
be proportionately diminished under the comparative negligence doctrine.
2. FP&L is not and cannot be held responsible pursuant to Florida Statute § 768.81
for any responsibility/liability on the part of any third-parties and/or parties named in this
lawsuit. This Defendant would further state that the negligence/wrongdoing of other
individuals/entities, the identity of which is/are unknown at this time, caused, or contributed to
Plaintiff’s alleged damages and, pursuant to Florida Statute Section 768.81 and Fabre v. Marin,
Defendant is not responsible for any damages caused by the negligence/wrongdoing of any third
parties. In accordance with the Florida Supreme Court’s holding in Nash v. Wells Fargo,
Defendant reserves the right to amend its Affirmative Defenses as to name any additional parties
up to the time of trial.
3. Plaintiff’s damages and injuries are a result of independent and
intervening/superseding acts for which Pike is not liable to Plaintiff for.
4. Any recovery by Plaintiff herein should be diminished by the amounts of all
benefits which Plaintiff has received from collateral sources.
5. Any recovery should be reduced or barred by any settlement, judgment, or
payment of any kind by any individual or entity in connection with the subject matter of the
incident described in the Complaint.
6 Any recovery should be reduced or barred to the extent of available insurance
coverage, including benefits available through any guarantee association or other governmental
authority, available to any individual or entity which may be wholly or partially responsible for
the damages alleged in connection with the subject matter of the incident described in the
Complaint.
7. Plaintiff failed to mitigate his damages, if any, and is therefore not entitled to
recovery of any damages which could have been mitigated.
8. Defendant is immune from liability for all counts in the Complaint pursuant to the
Doctrine of Worker's Compensation Immunity as set forth in Florida Statute Sections 440.10,
440.11, and in Chapter 440, Florida Statutes.
9. As an additional affirmative defense, Defendant affirmatively alleges entitlement
to all the protections of Florida’s Tort Reform Bill 837 and SB 836 which became effective
before Defendant’s response to this Complaint. These protections include any and all limitations
on admissibility of Plaintiff’s past and future medical bills, health insurance payments,
reasonable rates for Plaintiff’s medical treatment and costs of same, limitations of the recovery
of damages at trial, where applicable and the prohibition of any recovery wherein Plaintiff’s fault
for the subject accident is greater than 50%.
10. Defendant reserves its right to amend these affirmative defenses, as discovery
continues.
DEMAND FOR TRIAL BY JURY
FP&L hereby demands trial by jury of all issues triable as a matter of right.
MOTION TO DISMISS COUNT II
I. Standard of review for Motion to Dismiss.
The purpose of a motion to dismiss is to test whether Plaintiff has stated a cause of
action. See Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA
2003). “When determining the merits of a motion to dismiss for failure to state a cause of action,
the trial court’s consideration is limited to the four corners of the complaint, the allegations of
which must be accepted as true and considered in light most favorable to the nonmoving party.”
Id.; see also Morin v. Fla. Power & Light Co., 963 So. 2d 258 (Fla. 3d DCA 2007). To state a
cause of action pursuant to the Florida Rules of Civil Procedure, a complaint must allege
sufficient ultimate facts to show that the pleader is entitled to relief. See Fla. R. Civ. P. 1.110(b);
MEBA Medical & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4d DCA 2004); Brumer v.
HCA Health Servs. of Fla., Inc., 662 So. 2d 1385 (Fla. 4d DCA 1995) (allegations must be pled
with specificity) (emphasis added). Moreover, as stated by the Florida courts, “[u]nlike the
pleading requirements in the federal courts where notice pleading is the prevailing standard, the
Florida Rules of Civil Procedure require fact pleading.” Ranger Construction Industries, Inc. v.
Martin Companies of Daytona, Inc., 881 So.2d 677, 680 (Fla. 5d DCA 2004) (emphasis added).
As such, it is necessary for Plaintiff to “state [its] pleadings with sufficient particularity for a
defense to be prepared.” Horowitz v. Laske, 855 So.2d 169, 173 (Fla. 5d DCA 2003); see also
Fla. R. Civ. P. 1.110(b) and 1.140(e) (emphasis added).
II. The work at issue is not ultrahazardous as a matter of law, strict liability is
inapplicable, and Count II must be dismissed with prejudice.
Plaintiff’s claim for strict liability (Count II) appears to be premised on the allegation that
“FP&L, a power company, was engaged in an ultrahazardous activity which was the production
of power.” Ultrahazardous activities for which strict liability applies are not mutually exclusive
to inherently dangerous activities for which non delegable duties applies, power line work is
inherently dangerous as a matter of law, and Count II must be dismissed with prejudice.
In Florida, an activity is considered inherently dangerous if the “danger inheres in the
performance of the work,” such that “in the ordinary course of events its performance would
probably, and not merely possibly, cause injury if proper precautions were not taken.” Am. Home
Assurance Co. v. Nat'l R.R. Passenger Corp., 908 So.2d 459, 468 (Fla.2005) (quoting Fla.
Power & Light Co. v. Price, 170 So.2d 293, 295 (Fla. 1964)). The focus of the inquiry is on the
work to be performed by the particular independent contractor for whose activities the plaintiff
seeks to hold the defendant liable. See Nat'l R.R. Passenger Corp. v. Roundtree Transp. &
Rigging, Inc., 286 F.3d 1233, 1248 (11th Cir.2002). This “inherently dangerous conduct” legal
theory “does not mean that accidents are inevitable or unavoidable,” but instead, it “examines
and evaluates risks that create a much higher than usual likelihood of accidents in which there is
a much higher than usual likelihood of major loss, injury or damage.” Smyth ex rel. Estate of
Smyth v. Infrastructure Corp. of Am., 113 So.3d 904, 911 (Fla. 2d DCA 2013) (emphasis added).
If the activity is found to be inherently dangerous, then the “one engaged in or responsible for the
performance of [the] work ... is said to be under a non-delegable duty to perform, or have others
perform, the work in a reasonably safe and careful manner.” See Nat'l R.R. Passenger Corp., 286
F.3d at 1249. Moreover, Florida courts have analyzed whether a particular risk creates a non-
delegable duty as a question of legal duty; and thus, as a question of law. Id.
However, the Florida Supreme Court has established an exception to the inherently
dangerous doctrine where the person injured was hired to perform the inherently dangerous work
as follows:
“[L]iability flowing from operation of the doctrines of dangerous instrumentalities
and inherently dangerous work is subject to the exception that where the
defendant…contracts with an independent contractor for the performance of
inherently dangerous work[,] and the latter's employee is injured by a dangerous
instrumentality owned by the defendant which is negligently applied or operated
by another employee of the independent contractor but wholly without any
negligence on the part of the defendant owner, the latter will not be held liable.
The incidence of the independent contractor and injury to his employee in the
course of the performance of the inherently dangerous work absent any
negligence on the part of the contracting owner absolves the latter from liability.”
Fla. Power & Light Co. v. Price, 170 So. 2d 293, 298 (Fla. 1964) (emphasis added); see also
Holsworth v. Fla. Power & Light Co., 700 So. 2d 705, 707 (Fla. 4d DCA 1997); Pearson v.
Harris, 449 So. 2d 339, 343 (Fla. 1d DCA 1984); Scofi v. McKeon Const. Co., 666 F.2d 170, 172
(5th Cir. 1982) (applying Florida law); Horton v. Gulf Power Co., 401 So. 2d 1384, 1386 (Fla.
1d DCA 1981); Patrick v. Faircloth Buick Co., 185 So. 2d 522, 524 (Fla. 2d DCA 1966); Fry v.
Robinson Printers, Inc., 155 So. 2d 645 (Fla. 2d DCA. 1963).
Notably, the inherently dangerous work principle has been applied in the factual
context of where the plaintiff is injured while performing electrical work. See Fla. Power &
Light Co. v. Price, 170 So. 2d at 298; see also Christy v. Fla. Power Corp., 232 So. 2d 744, 746
(Fla. 1d DCA 1970); Lemen v. Fla. Power & Light Co., 452 So. 2d 1107, 1108 (Fla. 5d DCA
1984); Gyongyosi v. Miller, 80 So. 3d 1070, 1077 (Fla. 4th DCA 2012) (citing to 5th Circuit case
holding that power line work was inherently dangerous in order to demonstrate that the work at
issue in this case was not). Finally, the Supreme Court of Florida has also held as follows:
The inherent danger of electrically energized wires is well known to all except
those of tenderest age, but as we have found in the quoted opinion, the need for
successful distribution of so necessary a commodity cannot be defeated by
requiring that every conceivable protection be afforded wherever wires carrying it
may go, so that anyone who chances to come near may be saved from injury in
anything he decides to do, however unpredictable. That would be one extreme.
An illustration of the other would be the maintenance of exposed wires low to the
ground where children customarity gathered.
See Richmond v. FP&L, 58 So. 2d 687, 688 (Fla. 1952).
In situations where the “dangerousness” of an activity rises to the level where it can be
considered an ultra hazardous or abnormally dangerous activity, Florida courts have applied the
strict liability standard for injuries or damages stemming from those activities. See Great Lakes
Dredging & Dock Co. v. Sea Gull Operating Corp., 460 So.2d 510, 512 (Fla. 3d DCA 1984). In
Florida an activity is deemed ultra hazardous or abnormally dangerous if it (a) necessarily
involves a risk of serious harm to the person, land or chattels of others which cannot be
eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. Id.
Unlike the “inherently dangerous” doctrine, the risk of injury cannot be eliminated by the
exercise of reasonable care. See Baltodano v. CTL Distrib., Inc., 820 So.2d 421, 422 (Fla. 3d
DCA 2002). “For an activity to be abnormally dangerous, not only must it create a danger of
physical harm to others but the danger must be an abnormal one.” See Restatement of the Law of
Torts § 520.
Florida has fully adopted Restatement of the Law of Torts §§ 519 and 520 for regulating
abnormally dangerous activity. See Great Lakes Dredging, 460 So.2d at 512.The Restatement of
the Law of Torts § 520 lists six factors that are pertinent when determining whether an activity
rises to the level of abnormally dangerous, and thus warrants imposition of strict liability. These
six factors are:
a) whether the activity involves a high degree of risk of some hardship to the person, land or
chattels of others;
b) whether the harm which may result form it is likely to be great;
c) whether the risk cannot be eliminated by the exercise of reasonable care;
d) whether the activity is not a matter of common usage;
e) whether the activity is appropriate to the place where it is carried on; and
f) the value of the activity to the community.
See Restatement of the Law of Torts § 520. Common examples of ultra hazardous or abnormally
dangerous activities in Florida include:
• Fumingation; 1
• Blasting; 2
• Storage of hazardous materials or refuse; 3 and
• Pile-driving. 4
However, the Florida Supreme Court has also emphasized that “a danger that is merely
‘inherent’ does not give rise to strict liability.” See Midyette v. Madison, 559 So.2d 1126, 1128
(Fla.1990); see also Graziuso v. Ocean Reef Club Inc., Case No. 06-10085-CIV, 2007
WL9702421, *2 (S.D. Fla. Jan. 18, 2007) (citing to Florida caselaw and ruling “Florida draws a
distinction between ‘ultrahazardous’ activities and activities which are merely inherently
dangerous, and do not result in strict liability.”). Note that the determination of whether an
activity is ultra hazardous or abnormally dangerous is decided by the court, not a jury. Id. In
deciding whether an activity is inherently dangerous as opposed to ultra hazardous, one court
underwent the following instructive analysis:
Here, the Court finds that the danger involved in the sale of propane can easily be
eliminated by the exercise of reasonable care by use of proper handling and
dispensing procedures such as employing properly trained attendants and
performing routine inspections. Additionally, factors (d), (e), and (f) of
Restatement § 520 are easily satisfied in this case. The Court notes that the sale of
propane at a filling station, such as Defendant's, is a rather common activity, and
therefore considered of common usage. Lastly, the sale of propane is widely used,
unlike the impounding of phosphatic slime. After reviewing the factors of the
Restatement of the Law of Torts § 520, the allegations in Plaintiffs' Amended
Complaint, as a matter of law, do not rise to the level of ultrahazardous or
abnormally dangerous to warrant strict liability. Thus, the Court finds Plaintiffs'
argument that Defendant should be strictly liable for the sale of propane
unpersuasive.
1
Old Island Fumigation, Inc. v. Barbee, 604 So.2d 1246 (Fla. 3d DCA 1992)
2
Poole v. Lowell Dunn Co., 573 So.2d 51, 52 (Fla. 3d DCA 1991)
3
Cities Service Co. v. State, 312 So.2d 799 (Fla. 2d DCA 1975)
4
Hutchinson v. Capelletti Brothers, 397 So.2d 952 (Fla. 4th DCA 1981)
See St. Cyr, et al. v. Flying J Inc., 2006 WL 2175665, Case No. 3:06–cv–13–J–33TEM, *4
(M.D. Fla. July 31, 2006) (citing to Florida law).
Here, Plaintiff’s claim for strict liability (Count II) appears to be premised on the
allegation that “FP&L, a power company, was engaged in an ultrahazardous activity which was
the production of power.” See Plaintiff’s Amended Complaint, at Count II, attached hereto as
Exhibit “A”. Plaintiff’s Complaint then misguidedly alleges he was not actually injured by the
ultrahazardous work, but because there was no one shot activated by FP&L to de-energize the
line after Plaintiff came into contact with it (during the performance of the ultrahazardous work).
Id. Notably, the Complaint is devoid of any allegations to support the factors of ultrahazardous
work in order to properly plead a claim for strict liability. Id. As addressed supra, work on power
lines is inherently dangerous as a matter of law, which is wholly distinct from the ultrahazardous
work requiring application of strict liability – these two legal principles are not mutually
exclusive and are not interchangeable. See Fla. Power & Light Co. v. Price, 170 So. 2d at 298;
Christy v. Fla. Power Corp., 232 So. 2d at 746; Lemen v. Fla. Power & Light Co., 452 So. 2d at
1108; Gyongyosi v. Miller, 80 So. 3d at 1077; Midyette v. Madison, 559 So.2d at 1128; see also
Graziuso v. Ocean Reef Club Inc., Case No. 06-10085-CIV, 2007 WL9702421, at *2. A
thorough review of Florida case law confirms no court in Florida has found work on power lines
to be ultrahazardous work, which is not surprising when applying factors set forth in Restatement
§ 520. See Restatement of the Law of Torts § 520. For one, as Plaintiff strenuously argues in his
Complaint, the danger associated with the subject work can be eliminated by the exercise of
reasonable care; power lines are literally everywhere, and correspondingly, power line work is
very common; and the value of having power line work conducted and providing power for
millions of customers across the country is clearly exponential. See Id.; Exhibit A; see also St.
Cyr, et al. v. Flying J Inc., 2006 WL 2175665, Case No. 3:06–cv–13–J–33TEM, at *4. In sum,
the power line work that Plaintiff was engaged in at the time of the subject accident was
inherently dangerous and not ultrahazardous as a matter of law. Accordingly, Count II should be
dismissed with prejudice.
WHEREFORE, FP&L respectfully requests that this Honorable Court grant its Motion to
Dismiss Count II of Plaintiff’s Amended Complaint, and to provide any additional relief this
Honorable Court deems just and proper.
THIRD-PARTY COMPLAINT
Third-Party FLORIDA POWER & LIGHT COMPANY (hereinafter “FP&L”), by and
through undersigned counsel, and pursuant to the applicable Rules of Florida Procedure, hereby
files its Third-Party Complaint against CIVIL SEARCH INTERNATIONAL, LLC (“CSI”) and
demands a jury trial, and in support thereof, states as follows:
1. Based upon the allegations set forth in the operative pleadings filed by
PLAINTIFF, CHRISTOPHER ROSSI, against FP&L, i.e. Plaintiff’s Amended Complaint (“the
operative pleading”), this is a Third-Party Claim for damages in excess of Fifty-Thousand Dollars
($50,000.00), exclusive of interest, attorney’s fees, and costs.
2. At all times material, FP&L was a corporation authorized to conduct business and
was conducting business in the State of Florida.
3. At all times material, CSI was a corporation authorized to conduct business and
was conducting business in the State of Florida.
4. Based upon the allegations set forth in the Third-Party Complaint, venue is proper
in Palm Beach County, Florida as the subject accident is alleged to have occurred within this
County.
5. On or about August 1, 2022, PLAINTIFF filed a Complaint seeking damages
related to an accident wherein PLAINTIFF was shocked while working on FP&L’s power lines,
which occurred on or about August 3, 2018 (“Subject Accident”). PLAINTIFF subsequently filed
an Amended Complaint on July 4, 2023 seeking damages related to the Subject Accident.
6. At the time of the subject accident, PLAINTIFF was working with FP&L’s
subcontractor, Third-Party, PIKE ELECTRIC, LLC (“PIKE”), within the scope of PLAINTIFF’S
employment with CSI pursuant to a contract that CSI has in place with PIKE (“the Contract”). See
Contract Between Pike and CSI, which will be filed under separate cover.
7. FP&L contends that if PLAINTIFF is bringing claims against FP&L, PIKE’S
customer, that arise out of, are related, and result from to the performance of service under the
Contract, then CSI is obligated to indemnify and defend FP&L.
COUNT I: CONTRACTUAL INDEMNIFICATION AGAINST CSI
8. FP&L re-alleges and incorporates the allegations set forth in paragraphs 1-7 above
as if fully set forth herein.
9. PIKE and CSI entered into a valid contract whereby CSI intentionally agreed that
the contract would primarily and directly benefit FP&L as follows:
8. INDEMNIFICATION. TO THE FULLEST EXTENT ALLOWED BY LAW,
CONTRACTOR SHALL DEFEND (BUT ONLY IF SO ELECTED BY
COMPANY IN ITS SOLE DISCRETION), INDEMNIFY AND HOLD
HARMLESS COMPANY, ITS AFFILIATES, JOINT VENTURE PARTNERS,
SUBSIDIARIES AND EACH OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES, AND
CUSTOMERS (COLLECTIVELY, "COMPANY INDEMNIFIED PARTIES")
FROM AND AGAINST ALL PROCEEDINGS, CLAIMS, DAMAGES,
LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING, BUT NOT
LIMITED TO, ATTORNEYS’ FEES AND EXPENSES INCURRED BY A
COMPANY INDEMNIFIED PARTY IN DEFENDING THE FOREGOING OR
INCURRED IN ENFORCING CONTRACTOR'S INDEMNIFICATION
OBLIGATIONS HEREUNDER) (COLLECTIVELY, "DAMAGES"), IN ANY
MANNER ARISING OUT OF, RELATED TO, OR RESULTING FROM THE
PERFORMANCE OF THE SERVICES HEREUNDER, PROVIDED THAT
ANY SUCH DAMAGES ARE CAUSED IN WHOLE OR IN PART BY ANY
ACT OR OMISSION OF CONTRACTOR, ANY CONTRACT PERSONNEL,
ANY SUBCONTRACTOR, OR ANYONE DIRECTLY OR INDIRECTLY
EMPLOYED BY ANY OF THEM, OR ANYONE FOR WHOSE ACTS ANY
OF THEM MAY BE LIABLE, INCLUDING, BUT NOT LIMITED TO ANY
NEGLIGENT, GROSSLY NEGLIGENT OR WILLFUL ACTS OR
OMISSIONS, AND REGARDLESS OF WHETHER OR NOT (A) ANY SUCH
DAMAGES ARE CAUSED IN PART BY THE CONCURRENT NEGLIGENCE
OF A COMPANY INDEMNIFIED PARTY OR ANY OTHER ACTS OR
OMISSIONS (INCLUDING, WITHOUT LIMITATION, ANY NEGLIGENT
ACTS OR OMISSIONS) OF A COMPANY INDEMNIFIED PARTY OR (B) A
COMPANY INDEMNIFIED PARTY WOULD OTHERWISE BE LIABLE FOR
SUCH DAMAGES UNDER A STATUTORY OR COMMON LAW STRICT
LIABILITY STANDARD…CONTRACTOR SHALL NOT BE OBLIGATED
TO INDEMNIFY ANY COMPANY INDEMNIFIED PARTY HEREUNDER
TO THE EXTENT ANY DAMAGES RESULT FROM THE SOLE
NEGLIGENCE OR WILLFUL MISCONDUCT OF A COMPANY
INDEMNIFIED PARTY.
See Contract Between Pike and CSI, which will be filed under separate cover, at page 2. (emphasis
supplied)
10. FP&L, as a third party beneficiary to this contract provision, has demanded CSI to
defend and indemnify FP&L; however, CSI has failed to accept its contractual obligations and is
in material breach of the Contract.
11. To the extent PLAINTIFF is successful in prosecuting his claims against FP&L,
CSI has further materially breached the Contract for its failure to indemnify FP&L.
12. Furthermore, FP&L has suffered damages and will continue to suffer damages for
CSI’s breach of contract and for all other damages arising out of Plaintiff’s claims to the extent
permitted by this Court.
WHEREFORE, Third-Party PLAINTIFF, FP&L, demands judgment for all damages,
against Third-Party Defendant, CSI, for its reasonable attorneys’ fees and costs, which may be
adjudged against FP&L and in favor of PLAINTIFF that are attributable to CSI, together with
such other relief as this Court deems just and proper.
COUNT II: COMMON LAW INDEMNITY AGAINST CSI
13. FP&L re-alleges and incorporates the allegations set forth in paragraphs 1-12 above
as if fully set forth herein.
14. At all material times, a special relationship existed between FP&L and CSI.
15. PLAINTIFF has alleged that he was injured while he was working within the
scope of his employment with CSI, pursuant to the Contract.
16. FP&L is wholly without negligence or fault that is the legal cause of the alleged
bodily injuries sustained by PLAINTIFF in this case.
17. However, to the extent FP&L is held liable to PLAINTIFF for any damages
relating to the Accident, which is the subject of the Complaint, FP&L’s liability is entirely
vicarious, derivative, or technical, as FP&L is entirety without fault for the claims asserted by
PLAINTIFF.
18. Accordingly, CSI is liable to FP&L for common law indemnity for all damages
PLAINTIFF may recover from FP&L.
WHEREFORE, Third-Party PLAINTIFF, FP&L, demands judgment for all damages,
against Third-Party Defendant, CSI, for its reasonable attorneys’ fees and costs, which may be
adjudged against FP&Land in favor of PLAINTIFF that are attributable to CSI, together with such
other relief as this Court deems just and proper.
COUNT III: CONTRIBUTION AGAINST CSI
19. FP&L re-alleges and incorporates the allegations set forth in paragraphs 1-18
above as if fully set forth herein.
20. PLAINTIFF has alleged that FP&L is liable for the subject accident.
21. While FP&L denies these allegations, PLAINTIFF has alleged that he was injured
while he was working within the scope of his employment with CSI, pursuant to the Contract.
22. Moreover, notwithstanding FP&L’s denial of these allegations, in the event that
FP&L is found liable and is required to pay more than its share of the common liability, FP&L is
entitled to contribution pursuant to Fla. Stat. §768.31 against CSI for all sums paid by FP&L in
excess of its pro-rata share of common liability.
WHEREFORE, Third-Party PLAINTIFF, FP&L, demands judgment for all damages,
against Third-Party Defendant, CSI, which may be adjudged against FP&L and in favor of
PLAINTIFF that are attributable to CSI, together with such other relief as this Court deems just
and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
served via the Florida Court’s e-Filing Portal system on this 21st day of July, 2023 to counsel of
record listed on the attached Service List.
KUBICKI DRAPER
Counsel for Defendant
One Datran Center
9100 S. Dadeland Blvd., Suite 1800
Miami, Florida 33156
Direct Line:(305) 982-6774
PSB-KD@kubickidraper.com
(eService Only)
BY: /s/Raquel L. Loret de Mola
PETER S. BAUMBERGER, ESQ.
Florida Bar No.: 117803
PSB@kubickidraper.com (Direct)
RAQUEL L. LORET DE MOLA, ESQ.
Florida Bar No.: 117533
RLL@kubickidraper.com (Direct)
SERVICE LIST
Calvin Robinson, Esq.
THE ROBINSON LAW GROUP, PLLC
2650 1st Avenue North
St. Petersburg, Florida 33713
Email: 813Litigation@gmail.com
Email: 813InjuryLaw@gmail.com
Counsel for Plaintiff
.
EXHIBIT A
Filing # 176668040 E-Filed 07/04/2023 01:01:48 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT,
IN AND FOR, PALM BEACH COUNTY, FLORIDA
CHRISTOPHER ROSSI, CASE NO: 50-2022-CA-007412XXXXMB
DIV.: AJ
Plaintiff,
vs.
FLORIDA POWER AND LIGHT COMPANY,
a Florida Corporation,
Defendant.
AMENDED COMPLAINT
COMES NOW, Plaintiff CHRISTOPHER ROSSI, by and through HIS
undersigned counsel, and sues Defendant FLORIDA POWER AND LIGHT
COMPANY, a Florida Corporation, and states as follows:
GENERAL ALLEGATIONS COMMON TO ALL COUNTS
1. This is an action for damages by the Plaintiff, CHRISTOPHER ROSSI, against
Defendant FLORIDA POWER AND LIGHT COMPANY, for negligence,
ultrahazardous activity, and damages in excess of the minimum jurisdictional
amount of Fifty Thousand and 00/100 Dollars ($50,000.00), exclusive of costs,
interest and attorneys’ fees.
2. CHRISTOPHER ROSSI, is a Citizen and Resident of Sarasota County,
Florida.
3. Defendant FLORIDA POWER AND LIGHT COMPANY (hereinafter
“FP&L”) was and is a Florida Corporation, functioning as an electrical service
utility engaged in the business of designing, manufacturing, and installing
electrical service systems to transmit, distribute, and sell electrical energy and
was licensed to and doing business in the State of Florida, including Palm
Beach County, and maintains its principle address and registered agent at 700
Universe Boulevard in Juno Beach, Palm Beach County, Florida.
4. Venue is appropriate and proper in Palm Beach County pursuant to Florida
Statute §47.011 because FP&L is based and located at 700 Universe Boulevard
in Juno Beach, Palm Beach County, Florida.
COUNT I
NEGLIGENCE CLAIM AGAINST FP&L
5. Plaintiff Christopher Rossi adopts and realleges paragraphs one (1) through
four (4) as though fully set forth herein.
6. At all times material hereto, FP&L owned, maintained, controlled, operated,
and/or supervised certain utility poles and overhead high voltage uninsulated
distribution lines located at or near Delray, Florida in Palm Beach County,
Florida, (hereinafter “subject work area”) including high voltage uninsulated
distribution lines.
7. At all material times hereto, FP&L contracted with non-party contractors to
perform various power and communication line and related structures
construction and maintenance on the aforementioned overhead high voltage
uninsulated distribution lines including, without limitation, the transfer of high
voltage lines and fuses, lightning arresters, underground risers, low voltage
street lighting, and secondary lines and poles.
8. At all times material hereto, Christopher Rossi was an employee of the
contractor/subcontractor responsible for performing the work in the subject
work area on August 3, 2018.
9. At all times material hereto, FP&L had actual and/or constructive knowledge
of the work contracted to be performed by the non-party
contractor/subcontractor under the relevant contract.
10. At all material times hereto, FP&L owed a non-delegable duty to the Plaintiff
to use reasonable care to protect, prevent, and warn of dangerous conditions
related to the overhead high voltage uninsulated distribution lines by
implementing a “One shot” or circuit breaker on the line and advising if it was
functioning improperly.
11. On August 3, 2018, the Plaintiff was assigned to work on an overhead volt
uninsulated distribution line while energized. The assigned work required him
to transfer older facilities from a pre-existing wooden pole to a new one and
involved extremely complex and dangerous work for which they retained
FP&L to activate a “One shot” or circuit breaker on the line.
12. The assigned work, effectively, had the Plaintiff working amidst a “spider
web” of dangerous and live power lines. Working this complex work “live”
presented a clear and forseeable danger necessitating a “One shot” or circuit
breaker on the power line to be functioning properly as operated by FP&L.
13. The overhead uninsulated lines at issue could have been temporarily de-
energized with little to no interruption of electric service to FP&L customers.
But, at the very least, could have had the properly functioning “One shot” or
circuit breaker attached to the line.
14. Further, the circuit breaker, which was called in by the subcontractor to FP&L,
was set, maintained and implemented by FP&L which did not function
properly.
15. As a result of failing to temporarily de-energize and/or properly implement the
circuit breaker, the Plaintiff experienced multiple electric contacts with the
high voltage lines during the assigned work and was electrocuted for a
prolonged period of time, as supported via witness affidavit (See Exhibit A).
16. At all times material hereto, FP&L failed to reduce or mitigate the risk or high
voltage electrical shock by breaching the following duties which constitutes
negligence and creating dangerous and/or extremely hazardous conditions and
unreasonable risk of harm to the Plaintiff by failing to properly perform the
task in which they were requested, being:
a. Failing to temporarily de-energize the overhead high voltage
uninsulated distribution lines at issue due to the complexity of the work
being performed;
b. Failing to ensure that all high voltage re-closing devices were set to
non-reclose to prevent multiple re-energizations at the subject work area
in the event of an accidental contact with high voltage lines during the
assigned energized work, via an implemented “One shot” or circuit
breaker;
c. Failing to approve requests from the FP&L contractor/subcontractor to
set all high voltage re-closing devices to “non-re-close” as well as
requests to temporarily de-energize the transfer work so it could be done
more quickly and safely;
d. Failing to maintain the aforementioned overhead high voltage
uninsulated distribution lines and utility poles in a reasonably safe
condition, so as to prevent said distribution lines and/or electrical arcs
from said distribution lines from coming into contact with persons such
as the Plaintiff;
e. Providing the Plaintiff with inherently unsafe and extremely complex
tasks to complete with the “One shot” and circuit breaker not
functioning properly; and
f. Any further negligent acts or omission that have yet to be discovered.
17. As a direct and/or proximate result of the negligent acts and/or omissions of
Defendant FP&L, CHRISTOPHER ROSSI suffered life altering injuries when
he experienced multiple electrical contacts with the overhead high voltage
uninsulated distribution lines during the assigned work in the subject area on
August 3, 2018. FP&L is responsible for his injuries and damages as set forth
below:
a. Bodily injury; and/or
b. Great physical pain and suffering; and/or
c. Disability, inability and loss of capacity to lead and enjoy a normal life;
and/or
d. Inconvenience; and/or
e. Physical impairment; and/or
f. Disfigurement and scarring; and/or
g. Mental anguish; and/or
h. Loss of or diminution of earning or earning capacity; and/or
i. Permanent injury within a reasonable degree of medical probability; and/or
j. Medical and related expenses, past and future, incurred in seeking a cure
for his injuries.
18. These severe injuries are not the result of an inherently dangerous job, but
the direct failure of FP&L staff on the aforementioned date. To activate the “One shot” or
circuit breaker on the overhead line.
COUNT II
STRICT LIABILITY AGAINST FLORIDA POWER AND LIGHT COMPANY
FOR ULTRAHAZARDOUS ACTIVITY
18. The General Allegations in paragraphs 1-4 are realleged as if set forth fully
herein.
19. At all times hereto, the Defendant, FP&L, a power company, was engaged in
an ultrahazardous activity which was the production of power, while not
activating the “One shot” or circuit breaker to the line that was being worked
on as requested by the subcontractor. Thus causing Plaintiff, CHRISTOPHER
ROSSI to be electrocuted for a prolonged period of time after coming in
contact with the powerline.
20. At all times material hereto, the risks associated with production of power
include, but are not to limited electrocution. With that being said, the injury
was not due to the dangerous job performed, but the negligence of FP&L
leading to Plaintiff, CHRISTOPHER ROSSI’S continued electrocution after
coming into contact with the power line not properly implementing the “One
shot” or circuit breaker activated by FP&L (supported by affidavit and e-filed
with the court).
21. As a direct and proximate cause of the failure and/or improper handling of the
“One shot”/ circuit breaker, CHRISTOPHER ROSSI was continuously
electrocuted. FP&L managed, directed, controlled and/or implemented this
and is strictly liable for all of the damages and injuries caused to the Plaintiff,
as a result of him being electrocuted for a prolonged period of time.
22. As a direct and proximate cause of the strict liability of the Defendant, FP&L,
through the ultrahazardous activity they were engaged in, the Plaintiff,
CHRISTOPHER ROSSI, was injured in and about his body, and has suffered
inconvenience, loss of enjoyment of life, mental anguish, mental pain and
suffering, disfigurement, disability, lost wages, loss of earning capacity and
Plaintiff has incurred medical expenses in the past, and will incur medical
expenses and other expenses over the Plaintiff’s remaining life expectancy and
such damages, are permanent within a reasonable degree of medical
probability.
Wherefore, Plaintiff, CHRISTOPHER ROSSI, demands judgment for all damages
as allowed under Florida law against the Defendant, FLORIDA POWER AND
LIGHT COMPANY for compensatory damages and consequential damages in
excess of the minimum jurisdictional limits of this Honorable Court of FIFTY
THOUSAND ($50,000.00) 00/100 DOLLARS including interest on all liquidated
damages, attorneys’ fees pursuant to any applicable offer of judgment statute
and/or rule, taxable costs, and further demands trial by jury as to all issues.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on the 4th day of July, 2023 the foregoing document
is being served to: to all parties on the attached service list: in the manner specified by
Rule 2.516 or in some other authorized mail consistent with Rule 2.516(b)(2).
[s] Calvin Robinson, Esquire
CALVIN ROBINSON, ESQUIRE
Attorney for Plaintiff
THE ROBINSON LAW GROUP, PLLC
2650 1ST AVENUE NORTH
ST. PETERSBURG, FLORIDA 33713
FLORIDA BAR #15683
813Litigation@gmail.com
813InjuryLaw@gmail.com
Attorney for Plaintiff
Related Content
in Palm Beach County
Ruling
MACKENZIE WOO VS. UNIVERSITY OF SAN FRANCISCO ET AL
Jul 18, 2024 |
CGC23605270
Matter on the Law & Motion Calendar for Thursday, July 18, 2024, Line 3. DEFENDANT UNIVERSITY OF SAN FRANCISCO's Motion For Terminating Sanction And For Monetary Sanction (Code Civ. Proc. 128.7). Denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/CK)
Ruling
CORNELIUS MURPHY ET AL VS. 3M COMPANY ET AL
Jul 16, 2024 |
CGC23277169
On Asbestos Law and Motion Calendar for Tuesday, July 16, 2024, in Department 301, Line 5. Plaintiff's Motion to Set a Preferential Trial Date Pursuant to C.C.P. Section 36(a) is DENIED without prejudice. Opposition filed. The Court does not find that Plaintiff's health is such that preference is necessary to avoid prejudicing her interest in the litigation. Specifically, the moving papers and counsel's declaration do not include a medical diagnosis and prognosis. Plaintiff may re-file their motion should circumstances change. The moving party shall lodge with the clerk in Department 301 by the time set for this hearing a proposed order repeating verbatim the substantive portion of the tentative ruling. Any party wishing to contest the tentative ruling must email contestasbestostr@sftc.org by 4:00 p.m. on the day before the hearing and state their intention to contest. If a hearing is requested, it will be on July 16, 2024 at 9:30 a.m. Attorneys may appear in person or remotely via zoom: Meeting ID 160 757 8308; Passcode: 485029. Face coverings are optional. The Court no longer provides a court reporter in the Law and Motion department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: Their name, CSR and telephone number, and their individual work email address. There will be only one official record. If the parties cannot agree, the Court will designate a qualified court reporter to provide the official transcript for the matter, and the party or parties will bear the cost. =(301/RCE)
Ruling
MEDINA CULVER D.O., AN INDIVIDUAL, ET AL. VS COUNTER BRANDS, LLC
Jul 16, 2024 |
24STCV03402
Case Number:
24STCV03402
Hearing Date:
July 16, 2024
Dept:
48
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
MEDINA CULVER D.O., et al.,
Plaintiffs,
vs.
COUNTER BRANDS, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CASE NO.: 24STCV03402
[TENTATIVE] ORDER GRANTING EX PARTE APPLICATION; CONTINUING MOTION TO COMPEL PRODUCTION
Dept. 48
8:30 a.m.
July 16, 2024
On
May 17, 2024, Plaintiffs filed a second amended complaint (SAC) against Defendants Counter Brands LLC and Counter Brands Inc.
There is no proof of service on file for Counter Brands LLC, and it has not yet responded to the SAC.
On June 21, 2023, Plaintiffs filed a motion to compel production of documents in response to a subpoena served on non-party Susan Gregg Renfrew.
On July 11, 2024, Counter Brands Inc. filed a motion to compel arbitration.
On July 15, 2024, Plaintiffs dismissed Counter Brands Inc.
Also on July 15, 2024, non-party Susan Gregg Renfrew filed an ex parte application for leave to file a supplemental opposition to the motion to compel, in light of changed circumstances arising from the dismissal of Counter Brands Inc.
The ex parte application is GRANTED.
The Hearing on Motion to Compel Production in Response to Subpoena to Susan Gregg Renfrew is CONTINUED to October 24, 2024 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse.
Non-party Susan Gregg Renfrew may file a supplemental opposition, and Plaintiffs may file a supplemental reply, pursuant to statutory notice periods based on the new hearing date.
The Hearing on Motion to Compel Arbitration filed by Counter Brands Inc. (scheduled for November 19, 2024) is TAKEN OFF CALENDAR.
Clerk to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.
If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.
Dated this 16th day of July 2024
Hon. Thomas D. Long
Judge of the Superior Court
Ruling
JOHN DOE, ET AL. VS ZAKARIYA MAHMOUD, ET AL.
Jul 18, 2024 |
23NWCV00846
Case Number:
23NWCV00846
Hearing Date:
July 18, 2024
Dept:
C
DOE v. MAHMOUD
CASE NO.: 23NWCV00846
HEARING: 07/18/24
#2
I.
Defendant ABC SCHOOL DISTRICTs Demurrer to Plaintiffs First Amended Complaint is
OVERRULED in part
and
SUSTAINED in part without leave to amend
.
II.
Defendant ABC SCHOOL DISTRICTs Motion to Strike Portions of Plaintiffs First Amended Complaint is
OFF-CALENDAR as MOOT
. Although a Motion to Strike was RESERVED, no Motion to Strike has been filed/lodged with the Court.
Moving Party to give notice.
This personal injury action was filed by Plaintiff JOHN DOE, a Minor by and through his GAL, J.M.; J.M., an individual; and T.M., an individual (collectively Plaintiffs) on March 17, 2023.
On October 23, 2023, the operative First Amended Complaint (FAC) was filed.
The FAC alleges that [o]n March 11, 2022, JOHN DOE was sitting in the classroom for his 4th period class at CHS when Defendants JD, JM and ZM entered the classroom (in which they did not have a class at that time) without permission, rushed over to his desk, and all three started punching John Doe repeatedly, in the head, face, and neck. JOHN DOE got up to attempt to defend himself and ward off the attackers. One of the students also shoved JOHN DOE onto a student desk. At least one of the attackers was on suspension from ABCUSD as a result of a different fight on the day before, and was allowed entry to the school by a classmate (believed to be one of the other attackers) through an unattended/unsecured emergency door at CHS that was not properly secured. Each student is believed to have a history of violence and/or serious behavioral problems. (FAC ¶18.) The classroom teacher, school security and other adult personnel did not prevent or intervene in the attack. The attack was recorded by some students on their phones. The attack was ultimately dispersed by some other students, and the attackers left. The attackers& were later identified and cited by police for various charged, believed to include trespass, assault, and battery. (FAC ¶19.) John Doe suffered a concussion, multiple contusions to his head, ear, and eye, and injury in the lower back of his neck, injury in the arm/shoulder, pain in lower and middle back, cuts/scrapes on the inside cheek and swollen/cut lip. His clothes and prescription glasses were also damaged. As a result of the attack, John Doe was too fearful for his safety to return to school and had to complete his courses outside the regular curriculum and classes. He suffered and continues to suffer emotional distress and trauma from the accident. (FAC ¶20.)
The FAC asserts the following causes of action:
1.
Negligence;
2.
Negligent Hiring Training, and Supervision;
3.
Negligent Infliction of Emotional Distress;
4.
Intentional Infliction of Emotional Distress;
5.
Battery;
6.
Parental Liability for Willful Misconduct by Minor Pursuant to Ed. Code §48904
7.
Parental Liability for Willful Misconduct by Minor Pursuant to Cal. Civ. Code §1714.1
Defendant ABC SCHOOL DISTRICT (ABC) generally demurs to the first, second, and third causes of action, arguing that these claims are not pled with particularity.
First Cause of Action Negligence
Under the statutory scheme in California, all government tort liability must be based on statute. (Gov. Code §815.) Accordingly, public entities may be liable only if a statute declares them to be liable. (
Cochran v. Herzog Engraving Co
. (1984) 155 Cal.App.3d 405, 409.)
Here, Plaintiffs allege that ABC owes a duty under Gov. Code §§
815.2; 815.4; 815.6; and 820. (FAC
¶
37.)
Gov. Code §815.2 states: (a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.
Gov. Code §815.4 states that [a] public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person.
There are three elements to establish public entity liability under Section 815.6: (1) a mandatory duty was imposed on the public entity by an enactment; (2) the enactment was designed to protect against the particular kind of injury suffered; and (3) the breach of the mandatory statutory duty proximately caused the injury. (
B.H. v. County of San Bernardino
(2015) 62 Cal.4th 168, 179.)
Gov. Code §820 states: (a) Except as otherwise provided by statute& a public employee is liable for injury caused by his act or omission to the same extent as a private person. (b) The liability of a public employee established by this part& is subject to any defenses that would be available to the public employee if he were a private person.
§815.6
and §820 do not apply to ABC as a public entity. Gov. Code §815.6 requires that a mandatory duty be alleged. Here, no mandatory duty imposed by statute is specifically alleged. Gov. Code §820 deals with an individual employees liabilitynot the employer district. §820 does not impose any duty to supervise. It makes a public employee liable for an injury to the same extent as a private person.
§§815.2 and 815.4 make ABC vicariously liable for the act of an employee/independent contractor only if the employee/independent contractor, while acting within the scope of employment would be liable for the injury to Plaintiff. ABCs liability, therefore, depends on its allegedly negligent supervision of the minor defendants on the date of the Subject Incident, and/or knowledge of any alleged bullying that occurred prior to the date of the Subject Incident.
The law regarding the duty of supervision on school premises is very, very well established. It is the duty of the school authorities to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection. The school district is liable for injuries which result from a failure of its officers and employees to use ordinary care in this respect. [Citations Omitted.]
(
J.H. v. Los Angeles Unified School Dist
. (2010) 183 Cal.App.4th 123, 139.) Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable. (
C.A. v. William S. Hart Union High School Dist
. (2012) 53 Cal.4th 861, 865.) Students are not at risk merely because they are at school, and schools, including school restrooms, are not dangerous places per se. [Citation Omitted.] Foreseeability is determined in light of all the circumstances and does not require prior identical events or injuries. [Citation Omitted.] It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities&Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of [adequate] safeguards&... Further, the issue of foreseeability does not depend upon the foreseeability of a particular third partys act, but instead focuses on whether the allegedly negligent conduct at issue created a foreseeable risk of a
particular kind of harm
. [Citations Omitted] (
M.W. v. Panama Buena Vista Union School Dist
. (2003) 110 Cal. App.4th 508, 518-519.)
Here, the FAC alleges that John Doe was a student at the school, lawfully on the school premises, when he was attacked by 3 other students. (FAC ¶18.) The FAC further alleges that various school teachers, security, and other school personnel we present and failed to protect him. (FAC ¶19.) The FAC also alleges that ABC failed in its duty to provide a safe and secure learning environment for Plaintiff. The FAC, read liberally, demonstrates that ABCs employees were acting in the scope of their employment and failed to protect Plaintiff as a student at the school.
For pleading purposes, the factual allegations are sufficiently pled to establish ABCs statutory liability under Gov. Code §§815.2 and 815.4. ABCs arguments with respect to these statutory claims raise factual determinations improperly resolved via this procedural vehicle.
Therefore, although Plaintiff cites to various inapplicable Government Code sections, demurrers do not lie as to only parts of causes of action. A demurrer must dispose of an entire cause of action to be sustained. (
Fremont Indemnity Co. v. Fremont General Corp
. (2007) 148 Cal.App.4th 97, 119.)
Given the Courts ruling with respect to the viability of Plaintiffs §§815.2 and 815.4 claims, the demurrer to the first cause of action is OVERRULED.
Second Cause of action Negligent Hiring, Training, and Supervision
An employer may be liable to a third person for the employers negligence in hiring or retaining an employee who is incompetent or unfit. (
Federico v. Superior Court (Jenry G.)
(1997) 59 Cal.App.4th 1207, 1213.) [A]n employers duty&is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed. (
Id
. at 1213.)
These facts are not alleged. Plaintiff has not sufficiently pled claims for Negligent Hiring or Negligent Training.
However, as discussed above with respect to the first cause of action, Plaintiff has adequately alleged a claim for Negligent Supervision.
Because this portion of the second cause of action is sufficiently alleged, the demurrer to the second cause of action is OVERRULED.
Third Cause of Action NIED
The elements for a claim of negligent infliction of emotional distress are: (1) Defendant engaged in negligent conduct; (2) Plaintiff suffered serious emotional distress; and (3) Defendants conduct was a cause of the serious emotional distress. (CACI No. 1620.)
Plaintiffs opposition does not address this cause of action.
Accordingly, the demurrer to the Third Cause of Action is SUSTAINED without leave to amend.
Ruling
Patricia F. vs. Westcare California, Inc.
Jul 18, 2024 |
24CECG00632
Re: Patricia F. v. Westcare California, Inc.
Superior Court Case No. 24CECG00632
Hearing Date: July 18, 2024 (Dept. 503)
Motion: Defendants Westcare California, Inc. and Westcare
Foundation, Inc.’s Demurrer to the Complaint
Tentative Ruling:
To overrule. Demurring defendants shall file their responsive pleadings within ten
(10) days from the date of this order.
Explanation:
A demurrer challenges defects apparent from the face of the complaint and
matters subject to judicial notice. (Blank v. Kirwan (1985) 30 Cal.3d 311, 318.) A general
demurrer is sustained where the pleading is insufficient to state a cause of action or is
incomplete. (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th
521, 535.) In considering a demurrer, the court assumes the truth of the facts properly
plead. (Hoyem v. Manhattan Beach City Sch. DIst. (1978) 22 Cal.3d 508, 517; Serrano v.
Priest (1971) 5 Cal.3d 584, 591.)
Demurring defendants contend plaintiff’s first cause of action for negligence is
insufficiently plead because demurring defendants owed plaintiff no duty under the
auspices of Beauchene v. Synanon Foundation, Inc.(1979) 88 Cal.App.3d 342, 348
(Beauchene). Beauchene involved a convicted person’s “eloping” from a private
rehabilitation institution and subsequent “‘crime spree.’” (Id. at p. 345.) In particular, the
First District considered a negligence claim brought by a victim shot in the arm by the
defendant 13 days after he left the program. (Ibid.)
Beauchene and its progeny have consistently held that private rehabilitation
institutions do not owe a duty to the general public for the injurious acts of escaped
residents because to do so would “detrimental[ly] effect prisoner release and
rehabilitation programs.” (Beauchene, supra, 88 Cal.App.3d at p. 348; accord, Rice v.
Center Point, Inc. (2007) 154 Cal.App.4th 949, 956; Cardenas v. Eggleston Youth Center
(1987) 193 Cal.App.3d 331, 335-336.) In essence, the same policy underlying absolute
immunity for public entities in relation to escaped prisoners, escaped persons, or persons
resisting arrest (Gov. Code, § 845.8), also applies to private institutions. (Beauchene,
supra, 88 Cal.App.3d at p. 348.)
However, unlike the acts by an escapee in Beauchene, plaintiff here alleges injury
by an adjoining resident who shared a bathroom with plaintiff. (Complaint, ¶ 15.) The
absence of door locks or other security devices between the adjoining rooms allowed
the alleged perpetrator undetected access to plaintiff and an opportunity to commit
the alleged assault. (Id. at ¶¶ 22 - 24.) Demurring defendants rely on Beauchene and its
progeny, yet, offer no authority applying that reasoning to assaults by co-residents.
Plaintiff, on the other hand, notes the settled principle that, in relation to harm committed
by co-prisoners, “there is a special relationship between jailer and prisoner which imposes
a duty of care on the jailer on the prisoner.” (Giraldo v. Department of Corrections &
Rehabilitation (2008) 168 Cal.App.4th 231, 252-253.)
Considering plaintiff’s allegation that she was harmed by a co-resident, not an
escapee, demurring defendants’ contention that a duty does not exist does not appear
supported by their asserted authorities. Furthermore, plaintiff’s allegations (which must
be accepted as true) tend to show unrestricted and undetected access between
adjoining residents such that the alleged assault could reasonably be found to be
foreseeable. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434-435
[“The most important of [the] considerations in establishing duty is forseeability.”].)
Therefore, the demurrer is overruled.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: __ jyh on 7/10/24 .
(Judge’s initials) (Date)
Ruling
LISA ARNOLD VS. CLARA ANI BISHOP ET AL
Jul 16, 2024 |
CGC22601123
Matter on the Law & Motion calendar for Tuesday, July 16, 2024, Line 4. 1 - DEFENDANT FCA, US, LLC's Motion To Transfer Venue To San Bernardino County. Denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/CK)
Ruling
ROWS AT NORTH OF MARINA ASSOCIATION vs. TAYLOR MORRISON OF CALIFORNIA, LLC
Jul 11, 2024 |
C24-00392
C24-00392
CASE NAME: ROWS AT NORTH OF MARINA ASSOCIATION VS. TAYLOR MORRISON OF CALIFORNIA,
LLC
*MOTION/PETITION TO COMPEL ARBITRATION
FILED BY: TAYLOR MORRISON OF CALIFORNIA, LLC
*TENTATIVE RULING:*
See also Line 13.
Defendants Taylor Morrison of California, LLC and William Lyon Homes, Inc. (the builder defendants)
bring this Motin to Compel Arbitration and Motion to Stay Proceedings and seek attorneys’ fees for
time and costs to bring this Motion. The Motion is opposed by Plaintiff Rows at North of Marina
Association. Various subcontractor defendants jointly submitted a Reply in support of Defendants’
SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY
MARTINEZ, CA
DEPARTMENT 12
JUDICIAL OFFICER: CHARLES S TREAT
HEARING DATE: 07/11/2024
Motion. No brief was submitted by the architect defendant.
This motion is taken off calendar for the time being, for the reasons discussed below. In short, the
problem is that the present motion puts before the Court, for present decision, only about one-third
of the overall arbitrability battle present in the case. Not only is there no pending motion that tees up
the remaining parts of the dispute for the Court’s decision, and no comprehensive briefing on those
parts – but indeed, the outcomes of those other parts of the dispute may bear directly on what result
should be reached on the present pending motion.
To explain a little more fully: The present motion is brought only by the builder defendants, Taylor
Morrison and William Lyon; and this motion seeks only to compel arbitration of plaintiff’s claims
directly against the builder defendants. If that were all there were to the case, it might make for an
easy decision to grant the arbitration motion. But the motion can’t be easily decided in that vacuum,
without considering the remainder of the case and its relation to the arbitrability issue.
Indeed, plaintiff’s only substantial ground for opposing the present motion is precisely that plaintiff
has also sued a number of other defendants – the subcontractor, and the architect – and the Court
should not force only the plaintiff-versus-builder part of the case into arbitration while the plaintiff-
versus-subcontractors part of the case remains in litigation, with the prospect of both wasteful
duplication and inconsistent results. Plaintiff argues that its claims against the subcontractors are not
themselves arbitrable. The subcontractors and builders argue, to the contrary, that plaintiff’s claims
against the subcontractors (and, presumably, any cross-complaints yet to be brought) are equally
arbitrable and ought likewise to be sent to the same arbitration. To date, however, no one has
brought any motion seeking to enforce that result, and it is less than robustly briefed at this point.
And further complicating the picture is the presence of the architect defendant. The builders and
subcontractors appear to take the position that the architect (as a “design professional”) is likewise
subject to the parties’ arbitration agreement – though it is not clear whether that means only
plaintiff’s claims against the architect, or any cross-complaints that may be brought by or against the
architect. However, it is not yet clarified whether there is any arbitration agreement to which the
architect itself was ever a signatory or party. The architect has filed no brief on the subject, but has
told the Court at CMC that it does not think it’s subject to arbitration and it is unwilling to go to
arbitration. That issue is almost entirely unbriefed at this point. Nor does the Court have a clear idea
of whether the architect portion of the overall dispute is distinct from, or factually intermingled with,
the claims brought against (or potentially by) the builders and subcontractors.
Accordingly, the Court wants to get all of these interrelated arguments before it at one time. It directs
that the parties should meet and confer about what arbitration-related motions remain to be filed,
and set a schedule for the filing and hearing of them along with the present motion. In other words,
the Court has in mind setting a deadline by which (1) the subcontractor defendants will file a motion
to compel arbitration against plaintiff, if they intend to do so; and (2) if the builders or subcontractors
will file any motion to compel arbitration against the architect, if they intend to do so. Any such
SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY
MARTINEZ, CA
DEPARTMENT 12
JUDICIAL OFFICER: CHARLES S TREAT
HEARING DATE: 07/11/2024
motions must be filed and served by August 9. The present arbitration motion will remain pending
and need not be refiled, but the parties may wish to file superseding briefs to cover both the present
motion and whatever additional motions they intend to file.
There is also the sticky point of what happens next if the Court does grant arbitration motions relating
to some, but not all, of the overall case. At the recent CMC the Court stated its general reluctance to
allow this overall construction dispute to proceed simultaneously and in parallel in both arbitration
and in litigation, if that can be helped. But there will remain the issue of whether the arbitration(s)
should be stayed in favor of the litigation, or the litigation stayed in favor or the arbitration, or neither
of those results. In this respect the Court points out the potentially conflicting demands of the FAA
and the CAA, as discussed in (for example) Rodriguez v. American Technologies, Inc. (2006) 136
Cal.App.4th 1110, 1121-22, and Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376,
393. The parties should give this point better attention in their briefing going forward.
The parties should meet and confer concerning a briefing schedule and a unified hearing date for any
arbitration-related motions (or, if no more such motions are filed, for hearing of the present pending
motion). To ensure that the case continues to move forward, the Court sets a case management
conference for October 28, 2024 at 8:30 a.m.
Ruling
DESTINY MARIA RAVELO, AN INDIVIDUAL VS GUILLERMO PERALTA GUITERREZ, AN INDIVIDUAL, ET AL.
Jul 15, 2024 |
22AHCV01390
Case Number:
22AHCV01390
Hearing Date:
July 15, 2024
Dept:
P [TENTATIVE] ORDER GRANTING DEFENDANTS, B.L. PRICE CO., INC., AND GUILLERMO PERALTA GUITERREZS MOTION COMPELLING PLAINTIFF SAY TANGS FURTHER DEPOSITION AND GRANTING IN PART ANSWERS TO QUESTIONS AT DEPOSITION AND DENYING AWARD OF MONETARY SANCTIONS
I.
INTRODUCTION
This personal injury case arises from an automobile collision. Plaintiff Destiny Ravelo (Ravelo) alleges that on March 1, 2022, while in her vehicle on the I-101 freeway, she was involved in a collision caused by a vehicle and trailer owned and operated by Defendants B.L. Price Co., Inc., and Defendant Guillermo Peralta Gutierrez (together Defendants). On December 23, 2022, Plaintiff filed a complaint asserting three causes of action: (1) negligence, (2) negligence per se and (2) statutory liability against Defendants.
During the collision, the right rear of Plaintiff Ravelos vehicle contacted Plaintiff Say Tangs (Plaintiff) vehicle, allegedly causing a traumatic brain injury (TBI), cervical spine injury, lumbar spine injury, severe emotional distress and economic harm. On February 10, 2023, the Court received notice of related case no. 23AHCV00167,
Say Tang v. B.L. Price Co. Inc., Guillermo Peralta Gutierrez, Destiny Maria Ravelo and Ivan Ravelo
, filed in the Los Angeles Superior Court on January 1, 2023.
Before the Court is a motion by Defendants B.L. Price Co. Inc. and Guillermo Peralta Gutierrez to compel Plaintiffs further deposition, compel answers to certain questions to assess damages, and the imposition of sanctions for related costs.
On May 1, 2024, Defendant filed a motion for the Court to issue the following orders:
1.
Order compelling Plaintiffs further deposition;
2.
Order compelling Plaintiff to answer all questions related to her childhood in Cambodia;
3.
Order compelling Plaintiff to answer all questions related to her business, including information about her supply chain; and
4.
Order for Plaintiff and/or her counsel to pay $2,105.00 in sanctions for the costs of the motion and Plaintiffs second deposition.
(Motion, ¶¶ 1-4.)
On June 17, 2024, Plaintiff filed an opposition and separate statement. As of July 12, 2024, no reply has been filed. The hearing is set for July 15, 2024. Trial is scheduled for January 28, 2025. T
he Court is unaware of any further meet and confer efforts that may have occurred after the filing of the instant motion.
Having reviewed the moving and opposition papers, the Court makes the following rulings:
The order compelling Plaintiffs further deposition is GRANTED;
The order compelling Plaintiff to answer questions related to her childhood in Cambodia is GRANTED, subject to modification explained below;
The order compelling Plaintiff to answer questions related to her business, including information about her supply chain, is DENIED;
The order for Plaintiff and/or her counsel awarding $2,105.00 in sanctions for the costs of the motion and Plaintiffs second deposition is DENIED.
II.
ANALYSIS
A.
Procedural Matters
Code of Civil Procedure, section 2025.480, subdivision (a) provides: If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.
(Code Civ. Proc., § 2025.480, subd. (a).)
This motion shall be made no later than 60 days after the completion of the record of the deposition and shall be accompanied by a meet and confer declaration under Section 2016.040.
(
Id
., § 2025.480, subd. (b).)
The 60-day deadline is mandatory.
(
Weinstein v. Blumberg
(2018) 25 Cal.App.5th 316, 321 (Weinstein).)
Meet-and-Confer Requirement
A motion to compel the deposition of a party to the action must be accompanied by a meet and confer declaration, or, when the deponent failed to attend the deposition, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.
(Code Civ. Proc., § 2025.450(b)(2).)
A discovery motion should not be denied automatically based upon the reason that the moving parties failed to meet and confer in good faith.
(
Obregon v. Sup. Ct
. (1998) 67 Cal.App.4th 424, 434.
But see
Townsend v. Sup. Ct
. (1998) 61 Cal.App.4th 1431, 1439 [motion must be denied where lack of meet and confer].
Separate Statement
Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).
The record of the deposition was completed and certified on March 27, 2024. (Johnson Decl., ¶ 4; Exh. B.) Accordingly, the 60-day period to compel further answers expired on May 26, 2024. Defendants counsel declares parties discussed the relevance of the requested answers and did not reach a resolution. (Johnson Decl., ¶ 7.) On May 1, 2024, Defendant filed the subject motion concurrently with a separate statement.
Therefore, the Court finds that Defendant has met all procedural requirements.
B.
Motion to Compel Further Deposition
Pursuant to Code of Civil Procedure, section 2025.610: Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.
(Code Civ. Proc., § 2025.610, subd. (a).)
Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition&.
(
Id
., § 2025.610, subd. (b).)
This section does not preclude taking one subsequent deposition of a natural person who has previously been examined under either or both of the following circumstances: (1) The person was examined as a result of that persons designation to testify on behalf of an organization under Section 2025.230.
&
(
Id.,
§ 2025.610, subd. (c)(1).)
Defendant moves for an order compelling Plaintiff to appear for a further deposition and answer questions regarding: (1) Plaintiffs early life in Cambodia from 1962 to 1979, and possible traumatic experiences that could have occurred during that time; (2) Plaintiffs business, her suppliers, and their location, including any possible exposure to contaminants that could have neurological impacts. These subjects were initially raised in Plaintiffs March 14, 2024, deposition, however Plaintiffs counsel instructed Plaintiff not to answer questions on these topics and objected to the questions as an invasion of Plaintiffs privacy. (Johnson Decl., ¶¶ 5-7.) Since Defendant has filed this motion to compel further responses, Plaintiff has the burden to justify each of its objections.
(
Coy v. Superior Court
(1962) 58 Cal.2d 210, 220 - 221.)
Plaintiff argues that further inquiry into these topics is unwarranted because Plaintiff has not placed anything at issue in this car accident litigation that justifies permitting disclosure of information about her childhood and business transactions. (Oppn., p. 2.) Plaintiff also argues that this motion was brought due to Plaintiffs alleged failure to accept Defendants good faith offer to abandon the line of questioning . . .in exchange of Plaintiff dropping her claim of a TBI but that offer was not accepted during a meet and confer during the deposition (
Id;
Johnson Decl., ¶ 8.)
Inquiry into Possible Traumatic Childhood Experiences in Cambodia
Defendants argue that Plaintiff is claiming that the accident caused neurological injuries and has therefore placed into dispute all issues relating to alternative causes for her alleged cognitive problems and mood disorders.
The Court notes that
Plaintiff alleges in the complaint that as a further direct and proximate result of the actions of Defendants & Plaintiff has suffered emotional damages which are believed to be permanent. (Compl., p. 5.)
During this litigation, Defendant served Form Interrogatories on Plaintiff which asked about her damages.
Specifically,
Form Interrogatory No. 9.1
, states:
Are there any other damages that you attribute to the INCIDENT? If so, for each item of damage state:
(a)
the nature;
(b)
the date it occurred;
(c)
the amount; and
(d)
the name ADDRESS, and telephone number of each PERSON to whom an obligation was incurred.
Plaintiffs
Response to Form Interrogatory No. 9.1
, states:
Yes.
(a)-(d) Plaintiff seeks all damages to which she is entitled, both economic and
non-economic. Plaintiff suffered, and continues to suffer physical pain,
mental suffering,
loss of enjoyment of life
, physical impairment, inconvenience,
grief, anxiety
, humiliation,
emotional distress
(emphasis added), and other damages to be proven at trial. As no fixed standard exists for deciding the amount of these non-economic damages, the amount of said damages is a matter for the jury to decide.
Discovery and investigation are ongoing. Plaintiff reserves the right to supplement
and/or amend this response.
(Motion, Exh. A; pp. 19-20.)
A general acquaintance with history informs us that Cambodians suffered greatly under the Khmer Rouge regime in the 1970s.
Undoubtedly, many individuals who grew up in Cambodia during that time experienced significant childhood trauma, which can affect individuals throughout their lives.
If Plaintiff had traumatic childhood experiences, it is possible that symptoms like mental suffering, grief, anxiety, emotional distress, loss of enjoyment of life and permanent emotional damage could have preexisted the accident in this case.
Therefore, the Court will permit limited inquiry into past traumatic experiences in Cambodia, including:
1.
Whether Plaintiff witnessed acts of violence as a child in Cambodia;
2.
Whether Plaintiff was a victim of acts of violence as a child in Cambodia; and
3.
Whether Plaintiff had close friends or family who were victims of violence during her
childhood in Cambodia.
Notwithstanding the above, the Court recognizes that Plaintiff has legitimate privacy interests that must be balanced against Defendants need for information.
Therefore, the Court will not permit any inquiry or disclosure of past traumatic experiences that may have been of a sexual nature.
The Court is not suggesting that Plaintiff experienced such events but is only guarding against that possibility given the prevalence of sexual violence in many societies throughout history.
Inquiry into Plaintiffs Business Dealings
Defendant moves the Court for an order compelling Plaintiff to answer questions about her business dealings.
Plaintiff has operated a business, Nancy Gem Inc., for 24 years. (Motion, Exh. A; Response to FROG No., 2.6.). When asked about where she sources the jewelry for Nancy Gem Inc., Plaintiffs counsel objected. Defendants counsel stated that Plaintiff is making a claim for TBI and loss of cognitive ability. Handling dangerous metals can contribute to cognitive problems. It is relevant. (Motion, Exh. B, p. 47.)
Plaintiff argues that Defendant improperly questioned Plaintiff about her business operations because those matters are irrelevant and private. Plaintiff argues that Defendant offers no compelling purpose for inquiring about Plaintiffs business affairs. The Court agrees.
Defendants counsels questions about purchasing jewelry from China were based on a theory that such jewelry may have contained contaminants which may have contributed to Plaintiffs alleged cognitive impairments.
The Court finds that the stated basis for this line of inquiry is too speculative to allow Defendants to question Plaintiff about her business dealings.
Therefore, the Court finds that Plaintiff cannot be compelled to produce answers to the inquiries about her business transactions or practices.
C.
Sanctions
Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for misuse of the discovery process, which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.
(Code Civ. Proc. § 2023.010.)
If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.
Defendant requests the court to impose a monetary sanction of $2,105.00 on Plaintiff and or/ her counsel for the motion costs and deposition part two. Defendants Counsel, Jerry L. Johnson, a California-licensed attorney, and senior associate at Tharpe & Howell, LLP, states that $1,540.00 was incurred in preparing this motion, based on: (1) his hourly rate of $185.00 being applied to 8 hours to prepare this motion and separate statement; and (2) the $60.00 filing fee. (Johnson Decl., ¶ 10.) Attorney Johnson estimates incurring $555 in additional fees through an estimated 3 hours spent preparing the reply and oral argument, and hearing attendance. (
Id.
)
Defendants motion requests sanctions in the amount of $2,105.00.
However, according to this Courts admittedly questionable math skills, it appears that the total sought is actually $2,095, calculated as follows:
Mot. to Compel Preparation
5 hours at $185.00
$925.00
Separate Statement Preparation
3 hours at $185.00
$555.00
Estimated
Reply Fees
3 hours at $185.00
$555.00
Motion Reservation Fee
$60.00
TOTAL
$2,095.00
The Court declines to award sanctions.
Plaintiffs counsel had substantial justification for objecting to these lines of inquiry during the deposition.
Based upon the deposition transcript, it appears that these objections were made in good faith to protect Plaintiffs privacy.
Further, the Court finds that Plaintiff opposed this motion in good faith.
IV.
CONCLUSION AND ORDER
The Court orders Plaintiff to appear for deposition within thirty days and answer questions as set forth above.
Moving
party to give notice of this ruling.
Dated:
July 15, 2024
JARED D. MOSES
JUDGE OF THE SUPERIOR COURT
Preview
Filing # 177986374 E-Filed 07/21/2023 03:38:20 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50-2022-CA-007412XXXXMB DIV.: AJ CHRISTOPHER ROSSI, Plaintiff, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Defendant. __________________________________/ FLORIDA POWER & LIGHT COMPANY’S ANSWER, AFFIRMATIVE DEFENSES AS TO COUNT I & MOTION TO DISMISS COUNT II OF PLAINTIFF’S AMENDED COMPLAINT & THIRD-PARTY COMPLAINT AGAINST CIVIL SEARCH INTERNATIONAL, LLC Defendant, FLORIDA POWER & LIGHT COMPANY (“FP&L” or “Defendant”), by and through the undersigned counsel, and pursuant to the applicable Florida Rules of Civil Procedure, hereby files this Answer, Affirmative Defenses, and Demand for Jury Trial as to Count I and Motion to Dismiss Count II of Plaintiff’s, CHRISTOPHER ROSSI (“Plaintiff”) Amended Complaint and Third Party Complaint Against CIVIL SEARCH INTERNATIONAL, LLC (“CSI”), and in support thereof, states as follows: ANSWER & AFFIRMATIVE DEFENSES AS TO COUNT I 1. Admitted only that Plaintiff is claiming in excess of the jurisdictional limits of this Court. Otherwise, denied. 2. Without sufficient knowledge, therefore denied. 3. Admitted. 4. Admitted. FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 07/21/2023 03:38:20 PM COUNT I NEGLIGENCE CLAIM AGAINST FP&L 5. FP&L adopts and re-alleges its responses to Paragraphs 1 through 4 above as if set forth fully herein. 6. Denied. 7. Denied as phrased. 8. Without sufficient knowledge, therefore denied. 9. Admitted that FP&L contracted with a non-party for the work that was performed by the Plaintiff. Otherwise, denied as phrased. 10. Denied. 11. Without sufficient knowledge, therefore denied as to the specific work the Plaintiff was assigned to perform. Denied that FP&L was “retained” to activate a “One shot or circuit breaker on the line”. 12. Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied, including all sub-paragraphs. 17. Denied, including all sub-paragraphs. 18. Denied. COUNT II STRICT LIABILITY AGAINST FLORIDA POWER AND LIGHT COMPANY FOR ULTRAHAZARDOUS ACTIVITY Count II and all the allegations contained therein are subject to FP&L’s Motion to Dismiss. See infra. AFFIRMATIVE DEFENSES 1. If Plaintiff has suffered injuries or losses as alleged, these are the proximate result of negligence by or on behalf of the Plaintiff by reason of which Plaintiff’s recovery, if any, must be proportionately diminished under the comparative negligence doctrine. 2. FP&L is not and cannot be held responsible pursuant to Florida Statute § 768.81 for any responsibility/liability on the part of any third-parties and/or parties named in this lawsuit. This Defendant would further state that the negligence/wrongdoing of other individuals/entities, the identity of which is/are unknown at this time, caused, or contributed to Plaintiff’s alleged damages and, pursuant to Florida Statute Section 768.81 and Fabre v. Marin, Defendant is not responsible for any damages caused by the negligence/wrongdoing of any third parties. In accordance with the Florida Supreme Court’s holding in Nash v. Wells Fargo, Defendant reserves the right to amend its Affirmative Defenses as to name any additional parties up to the time of trial. 3. Plaintiff’s damages and injuries are a result of independent and intervening/superseding acts for which Pike is not liable to Plaintiff for. 4. Any recovery by Plaintiff herein should be diminished by the amounts of all benefits which Plaintiff has received from collateral sources. 5. Any recovery should be reduced or barred by any settlement, judgment, or payment of any kind by any individual or entity in connection with the subject matter of the incident described in the Complaint. 6 Any recovery should be reduced or barred to the extent of available insurance coverage, including benefits available through any guarantee association or other governmental authority, available to any individual or entity which may be wholly or partially responsible for the damages alleged in connection with the subject matter of the incident described in the Complaint. 7. Plaintiff failed to mitigate his damages, if any, and is therefore not entitled to recovery of any damages which could have been mitigated. 8. Defendant is immune from liability for all counts in the Complaint pursuant to the Doctrine of Worker's Compensation Immunity as set forth in Florida Statute Sections 440.10, 440.11, and in Chapter 440, Florida Statutes. 9. As an additional affirmative defense, Defendant affirmatively alleges entitlement to all the protections of Florida’s Tort Reform Bill 837 and SB 836 which became effective before Defendant’s response to this Complaint. These protections include any and all limitations on admissibility of Plaintiff’s past and future medical bills, health insurance payments, reasonable rates for Plaintiff’s medical treatment and costs of same, limitations of the recovery of damages at trial, where applicable and the prohibition of any recovery wherein Plaintiff’s fault for the subject accident is greater than 50%. 10. Defendant reserves its right to amend these affirmative defenses, as discovery continues. DEMAND FOR TRIAL BY JURY FP&L hereby demands trial by jury of all issues triable as a matter of right. MOTION TO DISMISS COUNT II I. Standard of review for Motion to Dismiss. The purpose of a motion to dismiss is to test whether Plaintiff has stated a cause of action. See Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003). “When determining the merits of a motion to dismiss for failure to state a cause of action, the trial court’s consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in light most favorable to the nonmoving party.” Id.; see also Morin v. Fla. Power & Light Co., 963 So. 2d 258 (Fla. 3d DCA 2007). To state a cause of action pursuant to the Florida Rules of Civil Procedure, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. See Fla. R. Civ. P. 1.110(b); MEBA Medical & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4d DCA 2004); Brumer v. HCA Health Servs. of Fla., Inc., 662 So. 2d 1385 (Fla. 4d DCA 1995) (allegations must be pled with specificity) (emphasis added). Moreover, as stated by the Florida courts, “[u]nlike the pleading requirements in the federal courts where notice pleading is the prevailing standard, the Florida Rules of Civil Procedure require fact pleading.” Ranger Construction Industries, Inc. v. Martin Companies of Daytona, Inc., 881 So.2d 677, 680 (Fla. 5d DCA 2004) (emphasis added). As such, it is necessary for Plaintiff to “state [its] pleadings with sufficient particularity for a defense to be prepared.” Horowitz v. Laske, 855 So.2d 169, 173 (Fla. 5d DCA 2003); see also Fla. R. Civ. P. 1.110(b) and 1.140(e) (emphasis added). II. The work at issue is not ultrahazardous as a matter of law, strict liability is inapplicable, and Count II must be dismissed with prejudice. Plaintiff’s claim for strict liability (Count II) appears to be premised on the allegation that “FP&L, a power company, was engaged in an ultrahazardous activity which was the production of power.” Ultrahazardous activities for which strict liability applies are not mutually exclusive to inherently dangerous activities for which non delegable duties applies, power line work is inherently dangerous as a matter of law, and Count II must be dismissed with prejudice. In Florida, an activity is considered inherently dangerous if the “danger inheres in the performance of the work,” such that “in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken.” Am. Home Assurance Co. v. Nat'l R.R. Passenger Corp., 908 So.2d 459, 468 (Fla.2005) (quoting Fla. Power & Light Co. v. Price, 170 So.2d 293, 295 (Fla. 1964)). The focus of the inquiry is on the work to be performed by the particular independent contractor for whose activities the plaintiff seeks to hold the defendant liable. See Nat'l R.R. Passenger Corp. v. Roundtree Transp. & Rigging, Inc., 286 F.3d 1233, 1248 (11th Cir.2002). This “inherently dangerous conduct” legal theory “does not mean that accidents are inevitable or unavoidable,” but instead, it “examines and evaluates risks that create a much higher than usual likelihood of accidents in which there is a much higher than usual likelihood of major loss, injury or damage.” Smyth ex rel. Estate of Smyth v. Infrastructure Corp. of Am., 113 So.3d 904, 911 (Fla. 2d DCA 2013) (emphasis added). If the activity is found to be inherently dangerous, then the “one engaged in or responsible for the performance of [the] work ... is said to be under a non-delegable duty to perform, or have others perform, the work in a reasonably safe and careful manner.” See Nat'l R.R. Passenger Corp., 286 F.3d at 1249. Moreover, Florida courts have analyzed whether a particular risk creates a non- delegable duty as a question of legal duty; and thus, as a question of law. Id. However, the Florida Supreme Court has established an exception to the inherently dangerous doctrine where the person injured was hired to perform the inherently dangerous work as follows: “[L]iability flowing from operation of the doctrines of dangerous instrumentalities and inherently dangerous work is subject to the exception that where the defendant…contracts with an independent contractor for the performance of inherently dangerous work[,] and the latter's employee is injured by a dangerous instrumentality owned by the defendant which is negligently applied or operated by another employee of the independent contractor but wholly without any negligence on the part of the defendant owner, the latter will not be held liable. The incidence of the independent contractor and injury to his employee in the course of the performance of the inherently dangerous work absent any negligence on the part of the contracting owner absolves the latter from liability.” Fla. Power & Light Co. v. Price, 170 So. 2d 293, 298 (Fla. 1964) (emphasis added); see also Holsworth v. Fla. Power & Light Co., 700 So. 2d 705, 707 (Fla. 4d DCA 1997); Pearson v. Harris, 449 So. 2d 339, 343 (Fla. 1d DCA 1984); Scofi v. McKeon Const. Co., 666 F.2d 170, 172 (5th Cir. 1982) (applying Florida law); Horton v. Gulf Power Co., 401 So. 2d 1384, 1386 (Fla. 1d DCA 1981); Patrick v. Faircloth Buick Co., 185 So. 2d 522, 524 (Fla. 2d DCA 1966); Fry v. Robinson Printers, Inc., 155 So. 2d 645 (Fla. 2d DCA. 1963). Notably, the inherently dangerous work principle has been applied in the factual context of where the plaintiff is injured while performing electrical work. See Fla. Power & Light Co. v. Price, 170 So. 2d at 298; see also Christy v. Fla. Power Corp., 232 So. 2d 744, 746 (Fla. 1d DCA 1970); Lemen v. Fla. Power & Light Co., 452 So. 2d 1107, 1108 (Fla. 5d DCA 1984); Gyongyosi v. Miller, 80 So. 3d 1070, 1077 (Fla. 4th DCA 2012) (citing to 5th Circuit case holding that power line work was inherently dangerous in order to demonstrate that the work at issue in this case was not). Finally, the Supreme Court of Florida has also held as follows: The inherent danger of electrically energized wires is well known to all except those of tenderest age, but as we have found in the quoted opinion, the need for successful distribution of so necessary a commodity cannot be defeated by requiring that every conceivable protection be afforded wherever wires carrying it may go, so that anyone who chances to come near may be saved from injury in anything he decides to do, however unpredictable. That would be one extreme. An illustration of the other would be the maintenance of exposed wires low to the ground where children customarity gathered. See Richmond v. FP&L, 58 So. 2d 687, 688 (Fla. 1952). In situations where the “dangerousness” of an activity rises to the level where it can be considered an ultra hazardous or abnormally dangerous activity, Florida courts have applied the strict liability standard for injuries or damages stemming from those activities. See Great Lakes Dredging & Dock Co. v. Sea Gull Operating Corp., 460 So.2d 510, 512 (Fla. 3d DCA 1984). In Florida an activity is deemed ultra hazardous or abnormally dangerous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. Id. Unlike the “inherently dangerous” doctrine, the risk of injury cannot be eliminated by the exercise of reasonable care. See Baltodano v. CTL Distrib., Inc., 820 So.2d 421, 422 (Fla. 3d DCA 2002). “For an activity to be abnormally dangerous, not only must it create a danger of physical harm to others but the danger must be an abnormal one.” See Restatement of the Law of Torts § 520. Florida has fully adopted Restatement of the Law of Torts §§ 519 and 520 for regulating abnormally dangerous activity. See Great Lakes Dredging, 460 So.2d at 512.The Restatement of the Law of Torts § 520 lists six factors that are pertinent when determining whether an activity rises to the level of abnormally dangerous, and thus warrants imposition of strict liability. These six factors are: a) whether the activity involves a high degree of risk of some hardship to the person, land or chattels of others; b) whether the harm which may result form it is likely to be great; c) whether the risk cannot be eliminated by the exercise of reasonable care; d) whether the activity is not a matter of common usage; e) whether the activity is appropriate to the place where it is carried on; and f) the value of the activity to the community. See Restatement of the Law of Torts § 520. Common examples of ultra hazardous or abnormally dangerous activities in Florida include: • Fumingation; 1 • Blasting; 2 • Storage of hazardous materials or refuse; 3 and • Pile-driving. 4 However, the Florida Supreme Court has also emphasized that “a danger that is merely ‘inherent’ does not give rise to strict liability.” See Midyette v. Madison, 559 So.2d 1126, 1128 (Fla.1990); see also Graziuso v. Ocean Reef Club Inc., Case No. 06-10085-CIV, 2007 WL9702421, *2 (S.D. Fla. Jan. 18, 2007) (citing to Florida caselaw and ruling “Florida draws a distinction between ‘ultrahazardous’ activities and activities which are merely inherently dangerous, and do not result in strict liability.”). Note that the determination of whether an activity is ultra hazardous or abnormally dangerous is decided by the court, not a jury. Id. In deciding whether an activity is inherently dangerous as opposed to ultra hazardous, one court underwent the following instructive analysis: Here, the Court finds that the danger involved in the sale of propane can easily be eliminated by the exercise of reasonable care by use of proper handling and dispensing procedures such as employing properly trained attendants and performing routine inspections. Additionally, factors (d), (e), and (f) of Restatement § 520 are easily satisfied in this case. The Court notes that the sale of propane at a filling station, such as Defendant's, is a rather common activity, and therefore considered of common usage. Lastly, the sale of propane is widely used, unlike the impounding of phosphatic slime. After reviewing the factors of the Restatement of the Law of Torts § 520, the allegations in Plaintiffs' Amended Complaint, as a matter of law, do not rise to the level of ultrahazardous or abnormally dangerous to warrant strict liability. Thus, the Court finds Plaintiffs' argument that Defendant should be strictly liable for the sale of propane unpersuasive. 1 Old Island Fumigation, Inc. v. Barbee, 604 So.2d 1246 (Fla. 3d DCA 1992) 2 Poole v. Lowell Dunn Co., 573 So.2d 51, 52 (Fla. 3d DCA 1991) 3 Cities Service Co. v. State, 312 So.2d 799 (Fla. 2d DCA 1975) 4 Hutchinson v. Capelletti Brothers, 397 So.2d 952 (Fla. 4th DCA 1981) See St. Cyr, et al. v. Flying J Inc., 2006 WL 2175665, Case No. 3:06–cv–13–J–33TEM, *4 (M.D. Fla. July 31, 2006) (citing to Florida law). Here, Plaintiff’s claim for strict liability (Count II) appears to be premised on the allegation that “FP&L, a power company, was engaged in an ultrahazardous activity which was the production of power.” See Plaintiff’s Amended Complaint, at Count II, attached hereto as Exhibit “A”. Plaintiff’s Complaint then misguidedly alleges he was not actually injured by the ultrahazardous work, but because there was no one shot activated by FP&L to de-energize the line after Plaintiff came into contact with it (during the performance of the ultrahazardous work). Id. Notably, the Complaint is devoid of any allegations to support the factors of ultrahazardous work in order to properly plead a claim for strict liability. Id. As addressed supra, work on power lines is inherently dangerous as a matter of law, which is wholly distinct from the ultrahazardous work requiring application of strict liability – these two legal principles are not mutually exclusive and are not interchangeable. See Fla. Power & Light Co. v. Price, 170 So. 2d at 298; Christy v. Fla. Power Corp., 232 So. 2d at 746; Lemen v. Fla. Power & Light Co., 452 So. 2d at 1108; Gyongyosi v. Miller, 80 So. 3d at 1077; Midyette v. Madison, 559 So.2d at 1128; see also Graziuso v. Ocean Reef Club Inc., Case No. 06-10085-CIV, 2007 WL9702421, at *2. A thorough review of Florida case law confirms no court in Florida has found work on power lines to be ultrahazardous work, which is not surprising when applying factors set forth in Restatement § 520. See Restatement of the Law of Torts § 520. For one, as Plaintiff strenuously argues in his Complaint, the danger associated with the subject work can be eliminated by the exercise of reasonable care; power lines are literally everywhere, and correspondingly, power line work is very common; and the value of having power line work conducted and providing power for millions of customers across the country is clearly exponential. See Id.; Exhibit A; see also St. Cyr, et al. v. Flying J Inc., 2006 WL 2175665, Case No. 3:06–cv–13–J–33TEM, at *4. In sum, the power line work that Plaintiff was engaged in at the time of the subject accident was inherently dangerous and not ultrahazardous as a matter of law. Accordingly, Count II should be dismissed with prejudice. WHEREFORE, FP&L respectfully requests that this Honorable Court grant its Motion to Dismiss Count II of Plaintiff’s Amended Complaint, and to provide any additional relief this Honorable Court deems just and proper. THIRD-PARTY COMPLAINT Third-Party FLORIDA POWER & LIGHT COMPANY (hereinafter “FP&L”), by and through undersigned counsel, and pursuant to the applicable Rules of Florida Procedure, hereby files its Third-Party Complaint against CIVIL SEARCH INTERNATIONAL, LLC (“CSI”) and demands a jury trial, and in support thereof, states as follows: 1. Based upon the allegations set forth in the operative pleadings filed by PLAINTIFF, CHRISTOPHER ROSSI, against FP&L, i.e. Plaintiff’s Amended Complaint (“the operative pleading”), this is a Third-Party Claim for damages in excess of Fifty-Thousand Dollars ($50,000.00), exclusive of interest, attorney’s fees, and costs. 2. At all times material, FP&L was a corporation authorized to conduct business and was conducting business in the State of Florida. 3. At all times material, CSI was a corporation authorized to conduct business and was conducting business in the State of Florida. 4. Based upon the allegations set forth in the Third-Party Complaint, venue is proper in Palm Beach County, Florida as the subject accident is alleged to have occurred within this County. 5. On or about August 1, 2022, PLAINTIFF filed a Complaint seeking damages related to an accident wherein PLAINTIFF was shocked while working on FP&L’s power lines, which occurred on or about August 3, 2018 (“Subject Accident”). PLAINTIFF subsequently filed an Amended Complaint on July 4, 2023 seeking damages related to the Subject Accident. 6. At the time of the subject accident, PLAINTIFF was working with FP&L’s subcontractor, Third-Party, PIKE ELECTRIC, LLC (“PIKE”), within the scope of PLAINTIFF’S employment with CSI pursuant to a contract that CSI has in place with PIKE (“the Contract”). See Contract Between Pike and CSI, which will be filed under separate cover. 7. FP&L contends that if PLAINTIFF is bringing claims against FP&L, PIKE’S customer, that arise out of, are related, and result from to the performance of service under the Contract, then CSI is obligated to indemnify and defend FP&L. COUNT I: CONTRACTUAL INDEMNIFICATION AGAINST CSI 8. FP&L re-alleges and incorporates the allegations set forth in paragraphs 1-7 above as if fully set forth herein. 9. PIKE and CSI entered into a valid contract whereby CSI intentionally agreed that the contract would primarily and directly benefit FP&L as follows: 8. INDEMNIFICATION. TO THE FULLEST EXTENT ALLOWED BY LAW, CONTRACTOR SHALL DEFEND (BUT ONLY IF SO ELECTED BY COMPANY IN ITS SOLE DISCRETION), INDEMNIFY AND HOLD HARMLESS COMPANY, ITS AFFILIATES, JOINT VENTURE PARTNERS, SUBSIDIARIES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES, AND CUSTOMERS (COLLECTIVELY, "COMPANY INDEMNIFIED PARTIES") FROM AND AGAINST ALL PROCEEDINGS, CLAIMS, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND EXPENSES INCURRED BY A COMPANY INDEMNIFIED PARTY IN DEFENDING THE FOREGOING OR INCURRED IN ENFORCING CONTRACTOR'S INDEMNIFICATION OBLIGATIONS HEREUNDER) (COLLECTIVELY, "DAMAGES"), IN ANY MANNER ARISING OUT OF, RELATED TO, OR RESULTING FROM THE PERFORMANCE OF THE SERVICES HEREUNDER, PROVIDED THAT ANY SUCH DAMAGES ARE CAUSED IN WHOLE OR IN PART BY ANY ACT OR OMISSION OF CONTRACTOR, ANY CONTRACT PERSONNEL, ANY SUBCONTRACTOR, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE FOR WHOSE ACTS ANY OF THEM MAY BE LIABLE, INCLUDING, BUT NOT LIMITED TO ANY NEGLIGENT, GROSSLY NEGLIGENT OR WILLFUL ACTS OR OMISSIONS, AND REGARDLESS OF WHETHER OR NOT (A) ANY SUCH DAMAGES ARE CAUSED IN PART BY THE CONCURRENT NEGLIGENCE OF A COMPANY INDEMNIFIED PARTY OR ANY OTHER ACTS OR OMISSIONS (INCLUDING, WITHOUT LIMITATION, ANY NEGLIGENT ACTS OR OMISSIONS) OF A COMPANY INDEMNIFIED PARTY OR (B) A COMPANY INDEMNIFIED PARTY WOULD OTHERWISE BE LIABLE FOR SUCH DAMAGES UNDER A STATUTORY OR COMMON LAW STRICT LIABILITY STANDARD…CONTRACTOR SHALL NOT BE OBLIGATED TO INDEMNIFY ANY COMPANY INDEMNIFIED PARTY HEREUNDER TO THE EXTENT ANY DAMAGES RESULT FROM THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF A COMPANY INDEMNIFIED PARTY. See Contract Between Pike and CSI, which will be filed under separate cover, at page 2. (emphasis supplied) 10. FP&L, as a third party beneficiary to this contract provision, has demanded CSI to defend and indemnify FP&L; however, CSI has failed to accept its contractual obligations and is in material breach of the Contract. 11. To the extent PLAINTIFF is successful in prosecuting his claims against FP&L, CSI has further materially breached the Contract for its failure to indemnify FP&L. 12. Furthermore, FP&L has suffered damages and will continue to suffer damages for CSI’s breach of contract and for all other damages arising out of Plaintiff’s claims to the extent permitted by this Court. WHEREFORE, Third-Party PLAINTIFF, FP&L, demands judgment for all damages, against Third-Party Defendant, CSI, for its reasonable attorneys’ fees and costs, which may be adjudged against FP&L and in favor of PLAINTIFF that are attributable to CSI, together with such other relief as this Court deems just and proper. COUNT II: COMMON LAW INDEMNITY AGAINST CSI 13. FP&L re-alleges and incorporates the allegations set forth in paragraphs 1-12 above as if fully set forth herein. 14. At all material times, a special relationship existed between FP&L and CSI. 15. PLAINTIFF has alleged that he was injured while he was working within the scope of his employment with CSI, pursuant to the Contract. 16. FP&L is wholly without negligence or fault that is the legal cause of the alleged bodily injuries sustained by PLAINTIFF in this case. 17. However, to the extent FP&L is held liable to PLAINTIFF for any damages relating to the Accident, which is the subject of the Complaint, FP&L’s liability is entirely vicarious, derivative, or technical, as FP&L is entirety without fault for the claims asserted by PLAINTIFF. 18. Accordingly, CSI is liable to FP&L for common law indemnity for all damages PLAINTIFF may recover from FP&L. WHEREFORE, Third-Party PLAINTIFF, FP&L, demands judgment for all damages, against Third-Party Defendant, CSI, for its reasonable attorneys’ fees and costs, which may be adjudged against FP&Land in favor of PLAINTIFF that are attributable to CSI, together with such other relief as this Court deems just and proper. COUNT III: CONTRIBUTION AGAINST CSI 19. FP&L re-alleges and incorporates the allegations set forth in paragraphs 1-18 above as if fully set forth herein. 20. PLAINTIFF has alleged that FP&L is liable for the subject accident. 21. While FP&L denies these allegations, PLAINTIFF has alleged that he was injured while he was working within the scope of his employment with CSI, pursuant to the Contract. 22. Moreover, notwithstanding FP&L’s denial of these allegations, in the event that FP&L is found liable and is required to pay more than its share of the common liability, FP&L is entitled to contribution pursuant to Fla. Stat. §768.31 against CSI for all sums paid by FP&L in excess of its pro-rata share of common liability. WHEREFORE, Third-Party PLAINTIFF, FP&L, demands judgment for all damages, against Third-Party Defendant, CSI, which may be adjudged against FP&L and in favor of PLAINTIFF that are attributable to CSI, together with such other relief as this Court deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was electronically served via the Florida Court’s e-Filing Portal system on this 21st day of July, 2023 to counsel of record listed on the attached Service List. KUBICKI DRAPER Counsel for Defendant One Datran Center 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 Direct Line:(305) 982-6774 PSB-KD@kubickidraper.com (eService Only) BY: /s/Raquel L. Loret de Mola PETER S. BAUMBERGER, ESQ. Florida Bar No.: 117803 PSB@kubickidraper.com (Direct) RAQUEL L. LORET DE MOLA, ESQ. Florida Bar No.: 117533 RLL@kubickidraper.com (Direct) SERVICE LIST Calvin Robinson, Esq. THE ROBINSON LAW GROUP, PLLC 2650 1st Avenue North St. Petersburg, Florida 33713 Email: 813Litigation@gmail.com Email: 813InjuryLaw@gmail.com Counsel for Plaintiff . EXHIBIT A Filing # 176668040 E-Filed 07/04/2023 01:01:48 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR, PALM BEACH COUNTY, FLORIDA CHRISTOPHER ROSSI, CASE NO: 50-2022-CA-007412XXXXMB DIV.: AJ Plaintiff, vs. FLORIDA POWER AND LIGHT COMPANY, a Florida Corporation, Defendant. AMENDED COMPLAINT COMES NOW, Plaintiff CHRISTOPHER ROSSI, by and through HIS undersigned counsel, and sues Defendant FLORIDA POWER AND LIGHT COMPANY, a Florida Corporation, and states as follows: GENERAL ALLEGATIONS COMMON TO ALL COUNTS 1. This is an action for damages by the Plaintiff, CHRISTOPHER ROSSI, against Defendant FLORIDA POWER AND LIGHT COMPANY, for negligence, ultrahazardous activity, and damages in excess of the minimum jurisdictional amount of Fifty Thousand and 00/100 Dollars ($50,000.00), exclusive of costs, interest and attorneys’ fees. 2. CHRISTOPHER ROSSI, is a Citizen and Resident of Sarasota County, Florida. 3. Defendant FLORIDA POWER AND LIGHT COMPANY (hereinafter “FP&L”) was and is a Florida Corporation, functioning as an electrical service utility engaged in the business of designing, manufacturing, and installing electrical service systems to transmit, distribute, and sell electrical energy and was licensed to and doing business in the State of Florida, including Palm Beach County, and maintains its principle address and registered agent at 700 Universe Boulevard in Juno Beach, Palm Beach County, Florida. 4. Venue is appropriate and proper in Palm Beach County pursuant to Florida Statute §47.011 because FP&L is based and located at 700 Universe Boulevard in Juno Beach, Palm Beach County, Florida. COUNT I NEGLIGENCE CLAIM AGAINST FP&L 5. Plaintiff Christopher Rossi adopts and realleges paragraphs one (1) through four (4) as though fully set forth herein. 6. At all times material hereto, FP&L owned, maintained, controlled, operated, and/or supervised certain utility poles and overhead high voltage uninsulated distribution lines located at or near Delray, Florida in Palm Beach County, Florida, (hereinafter “subject work area”) including high voltage uninsulated distribution lines. 7. At all material times hereto, FP&L contracted with non-party contractors to perform various power and communication line and related structures construction and maintenance on the aforementioned overhead high voltage uninsulated distribution lines including, without limitation, the transfer of high voltage lines and fuses, lightning arresters, underground risers, low voltage street lighting, and secondary lines and poles. 8. At all times material hereto, Christopher Rossi was an employee of the contractor/subcontractor responsible for performing the work in the subject work area on August 3, 2018. 9. At all times material hereto, FP&L had actual and/or constructive knowledge of the work contracted to be performed by the non-party contractor/subcontractor under the relevant contract. 10. At all material times hereto, FP&L owed a non-delegable duty to the Plaintiff to use reasonable care to protect, prevent, and warn of dangerous conditions related to the overhead high voltage uninsulated distribution lines by implementing a “One shot” or circuit breaker on the line and advising if it was functioning improperly. 11. On August 3, 2018, the Plaintiff was assigned to work on an overhead volt uninsulated distribution line while energized. The assigned work required him to transfer older facilities from a pre-existing wooden pole to a new one and involved extremely complex and dangerous work for which they retained FP&L to activate a “One shot” or circuit breaker on the line. 12. The assigned work, effectively, had the Plaintiff working amidst a “spider web” of dangerous and live power lines. Working this complex work “live” presented a clear and forseeable danger necessitating a “One shot” or circuit breaker on the power line to be functioning properly as operated by FP&L. 13. The overhead uninsulated lines at issue could have been temporarily de- energized with little to no interruption of electric service to FP&L customers. But, at the very least, could have had the properly functioning “One shot” or circuit breaker attached to the line. 14. Further, the circuit breaker, which was called in by the subcontractor to FP&L, was set, maintained and implemented by FP&L which did not function properly. 15. As a result of failing to temporarily de-energize and/or properly implement the circuit breaker, the Plaintiff experienced multiple electric contacts with the high voltage lines during the assigned work and was electrocuted for a prolonged period of time, as supported via witness affidavit (See Exhibit A). 16. At all times material hereto, FP&L failed to reduce or mitigate the risk or high voltage electrical shock by breaching the following duties which constitutes negligence and creating dangerous and/or extremely hazardous conditions and unreasonable risk of harm to the Plaintiff by failing to properly perform the task in which they were requested, being: a. Failing to temporarily de-energize the overhead high voltage uninsulated distribution lines at issue due to the complexity of the work being performed; b. Failing to ensure that all high voltage re-closing devices were set to non-reclose to prevent multiple re-energizations at the subject work area in the event of an accidental contact with high voltage lines during the assigned energized work, via an implemented “One shot” or circuit breaker; c. Failing to approve requests from the FP&L contractor/subcontractor to set all high voltage re-closing devices to “non-re-close” as well as requests to temporarily de-energize the transfer work so it could be done more quickly and safely; d. Failing to maintain the aforementioned overhead high voltage uninsulated distribution lines and utility poles in a reasonably safe condition, so as to prevent said distribution lines and/or electrical arcs from said distribution lines from coming into contact with persons such as the Plaintiff; e. Providing the Plaintiff with inherently unsafe and extremely complex tasks to complete with the “One shot” and circuit breaker not functioning properly; and f. Any further negligent acts or omission that have yet to be discovered. 17. As a direct and/or proximate result of the negligent acts and/or omissions of Defendant FP&L, CHRISTOPHER ROSSI suffered life altering injuries when he experienced multiple electrical contacts with the overhead high voltage uninsulated distribution lines during the assigned work in the subject area on August 3, 2018. FP&L is responsible for his injuries and damages as set forth below: a. Bodily injury; and/or b. Great physical pain and suffering; and/or c. Disability, inability and loss of capacity to lead and enjoy a normal life; and/or d. Inconvenience; and/or e. Physical impairment; and/or f. Disfigurement and scarring; and/or g. Mental anguish; and/or h. Loss of or diminution of earning or earning capacity; and/or i. Permanent injury within a reasonable degree of medical probability; and/or j. Medical and related expenses, past and future, incurred in seeking a cure for his injuries. 18. These severe injuries are not the result of an inherently dangerous job, but the direct failure of FP&L staff on the aforementioned date. To activate the “One shot” or circuit breaker on the overhead line. COUNT II STRICT LIABILITY AGAINST FLORIDA POWER AND LIGHT COMPANY FOR ULTRAHAZARDOUS ACTIVITY 18. The General Allegations in paragraphs 1-4 are realleged as if set forth fully herein. 19. At all times hereto, the Defendant, FP&L, a power company, was engaged in an ultrahazardous activity which was the production of power, while not activating the “One shot” or circuit breaker to the line that was being worked on as requested by the subcontractor. Thus causing Plaintiff, CHRISTOPHER ROSSI to be electrocuted for a prolonged period of time after coming in contact with the powerline. 20. At all times material hereto, the risks associated with production of power include, but are not to limited electrocution. With that being said, the injury was not due to the dangerous job performed, but the negligence of FP&L leading to Plaintiff, CHRISTOPHER ROSSI’S continued electrocution after coming into contact with the power line not properly implementing the “One shot” or circuit breaker activated by FP&L (supported by affidavit and e-filed with the court). 21. As a direct and proximate cause of the failure and/or improper handling of the “One shot”/ circuit breaker, CHRISTOPHER ROSSI was continuously electrocuted. FP&L managed, directed, controlled and/or implemented this and is strictly liable for all of the damages and injuries caused to the Plaintiff, as a result of him being electrocuted for a prolonged period of time. 22. As a direct and proximate cause of the strict liability of the Defendant, FP&L, through the ultrahazardous activity they were engaged in, the Plaintiff, CHRISTOPHER ROSSI, was injured in and about his body, and has suffered inconvenience, loss of enjoyment of life, mental anguish, mental pain and suffering, disfigurement, disability, lost wages, loss of earning capacity and Plaintiff has incurred medical expenses in the past, and will incur medical expenses and other expenses over the Plaintiff’s remaining life expectancy and such damages, are permanent within a reasonable degree of medical probability. Wherefore, Plaintiff, CHRISTOPHER ROSSI, demands judgment for all damages as allowed under Florida law against the Defendant, FLORIDA POWER AND LIGHT COMPANY for compensatory damages and consequential damages in excess of the minimum jurisdictional limits of this Honorable Court of FIFTY THOUSAND ($50,000.00) 00/100 DOLLARS including interest on all liquidated damages, attorneys’ fees pursuant to any applicable offer of judgment statute and/or rule, taxable costs, and further demands trial by jury as to all issues. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on the 4th day of July, 2023 the foregoing document is being served to: to all parties on the attached service list: in the manner specified by Rule 2.516 or in some other authorized mail consistent with Rule 2.516(b)(2). [s] Calvin Robinson, Esquire CALVIN ROBINSON, ESQUIRE Attorney for Plaintiff THE ROBINSON LAW GROUP, PLLC 2650 1ST AVENUE NORTH ST. PETERSBURG, FLORIDA 33713 FLORIDA BAR #15683 813Litigation@gmail.com 813InjuryLaw@gmail.com Attorney for Plaintiff