       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

      REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC,
                         Appellant,

                                   v.

              FLORIDA POWER & LIGHT COMPANY and
            HOLLYWOOD PROPERTY INVESTMENTS, LLC,
                          Appellees.

                             No. 4D19-1786
                ________________________________________

                         CHRISTINE COOPER,
                              Appellant,

                                   v.

              FLORIDA POWER & LIGHT COMPANY and
            HOLLYWOOD PROPERTY INVESTMENTS, LLC,
                          Appellees.

                            No. 4D19-1787

                             [May 20, 2020]

  Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; David A. Haimes, Judge; L.T. Case No.
CACE17-022161.

  Julie W. Allison of Julie W. Allison, P.A., Hollywood, and Dorothy F.
Easley of Easley Appellate Practice PLLC, Miami, for appellant
Rehabilitation Center at Hollywood Hills, LLC.

   Scott P. Schlesinger and Jeffrey L. Haberman of Schlesinger Law
Offices, P.A., Fort Lauderdale, and Philip M. Burlington and Adam
Richardson of Burlington & Rockenbach, P.A., West Palm Beach, for
appellant Christine Cooper.

   Eric Hoecker of Florida Power & Light Co., Juno Beach, and Stuart H.
Singer and Evan Ezray of Boies Schiller Flexner LLP, Fort Lauderdale, and
Luis Suarez and Mark Heise of Boies Schiller Flexner LLP, Miami, for
appellee Florida Power & Light Co.

WARNER, J.

    In consolidated cases, Rehabilitation Center of Hollywood Hills, LLC
and Christine Cooper, a resident of the Center, appeal the trial court’s
order of dismissal of Cooper’s complaint against Florida Power & Light for
negligence and strict liability. 1 Cooper sued both FPL and the Center,
alleging that after Hurricane Irma, FPL’s failure to restore power to the
Center caused injuries to her. FPL moved to dismiss, arguing that it did
not owe a duty to provide a continuous supply of electricity to the resident
of the nursing home, because she was a member of the general public.
FPL also argued that liability was precluded by its tariff provisions with
the Public Service Commission. The trial court granted the motion and
dismissed the complaint, agreeing that the tariff precluded liability and
that FPL owed no common law duty to the nursing home residents. We
affirm, as we agree with the trial court that FPL owes no common law duty
to the general public to provide and maintain electrical service. Because
there is no duty, we do not reach the question of whether the tariff
precludes liability.

   The sufficiency of a complaint is a matter of law and dismissal of a
complaint is reviewable by the de novo standard. See Siegle v. Progressive
Consumers Ins. Co., 819 So. 2d 732, 734 (Fla. 2002). In reviewing a motion
to dismiss, the appellate court’s “gaze is limited to the four corners of the
complaint.” Goodall v. Whispering Woods Ctr., LLC, 990 So. 2d 695 (Fla.
4th DCA 2008). We therefore glean the facts from those allegations of the
complaint directed at FPL.

   Cooper was a resident of the Center, a skilled nursing facility, located
in Broward County, Florida, when Hurricane Irma hit South Florida on
Sunday, September 10, 2017. The Center lost power, and the air-

1 The Center argues as a threshold matter that it has standing to bring the appeal
because it is a named party and defendant in the proceedings below, and it may
be affected by a holding that FPL is not liable. We agree that the Center has
standing. See S. Puerto Rico Sugar Co. v. Tem-Cole, 403 So. 2d 494, 495 (Fla. 4th
DCA 1981) (defendant has right to appeal judgment exonerating codefendant
where codefendant’s exoneration adversely affects defendant’s rights such as a
right to contribution). See also Holton v. H.J. Wilson Co., 482 So. 2d 341, 343
(Fla. 1986) (holding defendant has the right to appeal a judgment exonerating a
codefendant because the finding of nonliability to plaintiff determines any
contribution and/or indemnity claims between alleged tortfeasors). FPL does not
dispute the center’s standing on appeal.

                                        2
conditioning system failed. While it regained some electricity, there was
no power for air-conditioning and the Center did not have a generator to
power the air-conditioning system. Despite the Center’s assurances to
appellant’s relatives that appellant would receive the proper care, the
residents were kept in sweltering conditions.

   On Wednesday, September 13th, after three days without power,
someone placed a 911 call to report that a resident of the nursing home
was in cardiac distress. Emergency personnel responded and discovered
dozens of elderly residents suffering in the heat. Many residents had died.

   The complaint alleged that FPL bears responsibility as well as the
Center, stating, “FPL knew the grave situation that Rehabilitation Center
residents were made to endure. Yet FPL failed to repair the power lines in
time. FPL’s negligent and reckless conduct caused death and serious
injuries to Rehabilitation Center residents.”

    In Count VII of the complaint (the only count against FPL), Cooper
alleged that “FP&L[] owed a general duty to the public, including Cooper,
to exercise a high degree of care in the operation and maintenance of its
power lines and power grid.” Cooper alleged that FPL violated its duty in
the following respects:

         a. Failure to have the appropriate policies and
         procedures in place as the sole power company
         servicing South Florida;

         b. Failure to have an appropriate plan in place in the
         event of a natural disaster;

         c. Failure to maintain in proper working order, its
         powerlines and power grids;

         d. Failure to adequately and sufficiently trim trees in
         advance in order to prepare for the foreseeable
         hurricane event, resulting in obstructed, downed or
         damaged power equipment which further [d]elayed the
         restoration of power;

         e. Failure to respond timely to an emergent situation;

         f. Failure to make repairs in a timely fashion;

         g. Failure to have sufficient personnel;

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         h. Failure to perform routine inspections of its facilities;
         and

         i. Failure to comply with applicable federal and local
         safety standards.

Cooper alleged no facts to show how these various negligent acts or
omissions contributed to the continued loss of power to the air-
conditioning system. The complaint alleged that these breaches of duty
“were a willful and wanton disregard of the rights of Christine Cooper and
constituted outrageous behavior.” She claimed damages for bodily injury
and emotional distress.

   FPL moved to dismiss the complaint on two bases: 1) its Tariff
provisions precluded liability, and 2) that FPL does not owe a generalized
duty to the public to provide continuous electricity after a hurricane.

    As to the duty issue, FPL argued that it owed no duty to Cooper to
provide continuous electricity after the hurricane. It was not an insurer
of the general public’s welfare. Similarly, FPL also claimed that it owed no
generalized duty to the public to provide continuous electric service, as it
was not an insurer of electricity. Florida case law has not imposed such
a duty owed to the general public. Noting that most cases regarding FPL’s
duty arose from accidents at non-functioning traffic lights due to power
outages, FPL characterized Cooper’s claim as one to maintain the flow of
electricity to the general public.

   Cooper opposed the motion to dismiss the complaint, contending that
FPL owed a duty to her under the “undertaker doctrine” which requires
that any service taken for the benefit of another be performed with
reasonable care. In reply, FPL argued that appellant failed to plead an
undertaking by FPL as to her and only pleaded a generalized duty.

    After a hearing on the motion, the trial court entered an order of
dismissal as to FPL. The court ruled that FPL owed no common law duty
to the residents of the rehabilitation center, citing numerous cases which
hold that power companies do not owe a duty of care to the general public
for power outages. Both Cooper and the Center appeal the dismissal.

   The existence of a duty of care in a negligence action is a question of
law. See Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1110 (Fla.
2005) (citing McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992)).
Whether a duty of care exists is to be determined solely by the court. L.A.

                                      4
Fitness Int’l, LLC v. Mayer, 980 So. 2d 550, 557 (Fla. 4th DCA 2008);
Marriott Int’l, Inc. v. Perez-Melendez, 855 So. 2d 624, 628 (Fla. 5th DCA
2003).

      The principle of “duty” is linked to the concept of foreseeability
      and may arise from four general sources:

         (1) legislative enactments or administration regulations;
         (2) judicial interpretations of such enactments or
         regulations; (3) other judicial precedent; and (4) a duty
         arising from the general facts of the case.

Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003)
(quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla.1992).
“The duty element of negligence focuses on whether the defendant’s
conduct foreseeably created a broader ‘zone of risk’ that poses a general
threat of harm to others.” McCain, 593 So. 2d at 502. It must be an
“unreasonable risk” of harm caused by defendant’s conduct, however.
Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983). And the risk must be
created by the defendant’s conduct which the defendant thus has the
ability to control. See Surloff v. Regions Bank, 179 So. 3d 472, 475 (Fla.
4th DCA 2015); Aguila v. Hilton, Inc., 878 So. 2d 392, 396 (Fla. 1st DCA
2004).

   As the trial court noted, Cooper’s complaint alleges that FPL had a
general duty to the public to maintain and operate the electric grid so that
power is supplied. But in this case, by accepting Cooper’s allegation of
duty, the “zone of risk” would encompass the entire population of persons
and property for which electricity is supplied. We do not think it is
foreseeable that the failure to restore electricity poses an “unreasonable”
risk of harm to the entire population. We have found no case holding that
a utility owes a general duty to the public or noncustomer for a continuous
supply of power. Indeed, the few cases which have touched on the issue
have all determined that no such duty exists. See Arenado v. Fla. Power
& Light Co., 523 So. 2d 628, 629 (Fla. 4th DCA 1988), rev. dismissed, 541
So. 2d 612 (Fla. 1989) (holding utility did not assume duty to general
public to supply electricity to traffic lights); Levy v. Fla. Power & Light Co.,
798 So. 2d 778 (Fla. 4th DCA 2001) (finding utility owed no duty to non-
customer to restore power to traffic light before accident and injury
occurred), Strauss v. Belle Realty Co., 65 N.Y. 2d 399, 482 N.E. 2d 34, 492
N.Y.S. 2d 555 (1985) (holding utility company owed no duty to non-
customer tenant injured in a fall in the common area of apartment building
for negligent failure to restore power after a power outage). Such a duty


                                       5
would make a utility an insurer of the supply of electricity. Even Cooper
and the Center concede that FPL is not an insurer of electricity.

   Cases finding a duty on the part of the power company to third persons
focus on an immediate danger which the power company created by its
acts. In particular, the most common “zone[s] of risk” are the electrified
power lines themselves which pose a “greater-than-usual zone of risk
associated with the business enterprise they have undertaken [the
transmission of electric power].” McCain, 593 So. 2d at 504. See also
Pacheco v. Fla. Power & Light Co., 784 So. 2d 1159, 1162 (Fla. 3d DCA
2001). Yet even with respect to the danger posed by the power lines
themselves, the power company’s duty is not unlimited but depends on
the knowledge of the risk posed to the specific plaintiff. See e.g., Smith v.
Fla. Power & Light Co., 857 So. 2d 224, 233 (Fla. 2d DCA 2003) (“Not
everyone who may be injured by contact with a power line is owed a duty
by the power company to provide protection against injury. A threshold
determination must be made that persons in the circumstances of a
particular plaintiff were as a matter of law within a foreseeable zone of risk
created by the defendant power company.”). These cases do not impose a
duty on behalf of the power company to the general public.

    In Goldberg v. Florida Power & Light Co., 899 So. 2d 1105, 1114 (Fla.
2005), the court found FPL had a common law duty to repair downed
power lines in a non-negligent manner. There, an electrical wire was down
due to weather. To prevent a “backfeed,” FPL turned off the power to a
traffic light at a nearby intersection while making repairs. As a result, an
accident occurred in which the Goldbergs’ daughter was killed. The
parents sued FPL and alleged that the workers had a duty to warn that
they were cutting power to the traffic signal. The supreme court held that
the power company had a duty to warn motorists of a hazardous condition
it created when it deactivated the traffic signal. It acknowledged, however,
that in a large-scale power outage such as after a hurricane or other act
of God, numerous traffic signals may be deactivated rendering it
impractical for FPL to implement safety precautions at all affected
intersections. Thus, the court signaled that a power company may not be
liable where the power outage was caused by a hurricane or other event
beyond the utility’s control. This would be in keeping with McCain’s
explanation that the defendant’s conduct must create the zone of risk,
which is within its ability to control. When an event such as a hurricane
occurs and interrupts power, there clearly is considerably less ability to
control any risk associated with an inability to supply power.

  Cooper argues that the undertaker doctrine creates liability for FPL.
The trial court rejected its application and we agree. In Clay Electric

                                      6
Cooperative, Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla. 2003), the
supreme court approved the doctrine: “[w]henever one undertakes to
provide a service to others, whether one does so gratuitously or by
contract, the individual who undertakes to provide the service—i.e., the
‘undertaker’—thereby assumes a duty to act carefully and to not put
others at an undue risk of harm.” Where a third person is involved, the
court adopted the Restatement (Second) of Torts § 324A (1965) for
assessing liability:

      One who undertakes, gratuitously or for consideration, to
      render services to another which he should recognize as
      necessary for the protection of a third person or his things, is
      subject to liability to the third person for physical harm
      resulting from his failure to exercise reasonable care to protect
      his undertaking, if

          (a) his failure to exercise reasonable care increases the risk
      of such harm, or

          (b) he has undertaken to perform a duty owed by the other
      to the third person, or

         (c) the harm is suffered because of reliance of the other or
      the third person upon the undertaking.

    The Clay court used the doctrine to hold that an electric company
which had a contract to maintain streetlights owed a duty of care to a child
who was killed while walking on a darkened road to a bus stop. Clay
Electric Cooperative had entered into a contract to maintain the
streetlights but had failed to inspect for some time or replace the particular
lights where the child was hit by an automobile. Based upon the facts and
circumstances of the case, the court held that the electric company
“assumed a specific, legally recognized duty to the plaintiffs to act with due
care in maintaining the streetlights.” Id. (emphasis supplied.) The court
ruled that both the “increased risk” and “reliance” subsections of the
Restatement were implicated. The maintenance company’s failure to
exercise due care in maintaining the lights caused the roadway to be dark
and increased the risk that a driver would not see the decedent. The
child’s caretakers could have relied on the fact that the boy’s path to the
school bus stop would be lighted in permitting him to walk to the bus stop.
Thus, the facts established a duty owed by Clay under the doctrine. See
also Dolan v. Fla. Power & Light Co., 872 So. 2d 274 (Fla. 4th DCA 2004).



                                      7
   In Clay, the company had agreed by contract to provide a specific
service – maintenance of streetlights. Similarly, in other cases the
undertaking has been narrow and specific, not a general obligation to
furnish services. For instance, in Union Park Memorial Chapel v. Hutt, 670
So. 2d 64 (Fla. 1996), the court applied the doctrine to find a duty on the
part of a funeral home director to act non-negligently when voluntarily
leading a funeral procession, during which an accident occurred to one of
the participants. We applied the doctrine in Vendola v. Southern Bell
Telephone & Telegraph Co., 474 So. 2d 275 (Fla. 4th DCA 1985), to find a
duty on the part of Southern Bell when it traced a 911 call negligently, the
result of which was that the person making the call bled to death before
help could arrive. We said, “[w]hen it undertook the service of tracing these
calls, Southern Bell exposed itself to that venerable principle of law that
an action undertaken for the benefit of another, even gratuitously, must
be performed in accordance with an obligation to exercise reasonable
care.” Vendola, 474 So. 2d at 278. Again, this was a discrete and narrow
specific undertaking, not the generalized wide-ranging undertaking of
supplying continuous power to the entirety of South Florida. The
application of the undertaker doctrine to the facts of this case would make
FPL the insurer of power, something the courts have never authorized.

   Were we to apply the undertaker doctrine, the complaint does not make
sufficient allegations to support it. There must be an undertaking, either
voluntary or for consideration. The complaint makes no allegation that
FPL had any contractual obligation or that it had agreed to immediately
provide power to the air-conditioning units at the Center. It alleges simply
that FPL had a general duty to the public to maintain and operate its
electric grid. At best, it states that FPL knew of the situation at the Center
and failed to restore power in time, yet it does not allege that FPL made
any specific agreement to restore power immediately to the Center or in
the three days that passed before the discovery of the residents’ conditions.
Thus the complaint does not allege a narrow and specific undertaking. 2

   Prior to the decision in Clay, in Levy v. Florida Power & Light Co., 798
So. 2d 778 (Fla. 4th DCA 2001), Judge Gross discussed the duty of a power
company with respect to the foreseeability of harm and quoted from
Vaughan v. Eastern Edison Co., 48 Mass. App. Ct. 225, 719 N.E. 2d 520
(1999):

2 The Center suggests that we allow an amendment to the complaint as there may
be additional facts which could support an undertaking, but Cooper did not
request leave to amend either at the trial level or on appeal. Furthermore, our
ruling applies to a non-customer. Other considerations would affect FPL’s
liability to a customer.

                                      8
      We appreciate that relieving the electric company of liability
      may leave the “loss on the shoulders of the individual plaintiff,
      who may be ruined by it.” Ibid. “But the imposition of tort
      liability on those who must render continuous service of this
      kind to all who apply for it under all kinds of circumstances
      could [also] be ruinous and the expense of litigation and
      settling claims over the issue of whether or not there was
      negligence could be a greater burden to the rate payer than
      can be socially justified.” [PROSSER & KEETON, TORTS § 93,
      at 671].

Levy, 798 So. 2d at 780. He then expounded on the policy nature of
determinations of common law duty:

      The decision in this type of case is policy driven. The finding
      of a legal duty or a jury question here would change an electric
      utility’s conduct when faced with power outages. If appellant’s
      allegations are true, that might be a change for the better.
      However, imposing liability would shift the cost for many
      traffic accidents [or hurricane related injuries and losses] to
      the utility and, presumably, to the rate payer through
      increased power rates.

      ....

      The drastic shift in policy which Levy seeks is more properly
      made on a statewide basis by the supreme court or by the
      legislature, the branch of government best suited to weigh and
      allocate social costs.

Id. at 781-82.

   We recognize that in Clay, the court eschewed the consideration of
public policy without an adequate record of what the ruling would mean
to utility rates. Yet, in McCain, the court recognized that legal duty is
imbued with public policy considerations. McCain, 593 So. 2d at 503
(considering public policy when distinguishing between foreseeability
relating to legal duty and proximate cause foreseeability).          Courts
frequently use public policy in discussing whether a legal duty of care
exists. See Champion v. Gray, 478 So. 2d 17 (Fla. 1985), receded from on
other grounds, Zell v. Meek, 665 So. 2d 1048 (Fla. 1995) (invoking public
policy to set limits on foreseeability rule); Knight v. Merhige, 133 So. 3d
1140 (Fla. 4th DCA 2014) (applying public policy to limit foreseeability

                                     9
analysis of duty). Similarly, in this case, as in Levy, FPL owed no duty to
Cooper, a noncustomer, who was injured by FPL’s failure to restore power
before her injury occurred. Were we to find such a duty, it would open up
public utilities to enormous liability for every conceivable injury, both
personal and property, which may occur during a power outage. And to
have a jury assess the adequacy of FPL’s plans and performance during
an event, such as an outage due to a hurricane, would interfere with the
extensive regulation of public utilities already required through the Public
Service Commission. See Fla. Chapter 366, Public Utilities. Such a “drastic
shift” of liability to a public utility is more properly made by the legislature
or Public Service Commission.

   Because we conclude that under the facts as alleged in the complaint
the court properly determined that FPL owed no duty to a non-customer
as part of the general public, we affirm the final judgment of dismissal.

FORST, J., and WALSH, LISA S., Associate Judge, concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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