Should utility companies be held liable to individual citizens for harm those citizens suffer from faulty management of utilities, even when government contracts don't specifically establish such liability and where there is no explicit legal precedent for imposing it?

Yes, according to three Florida Supreme Court justices up for retention on the November ballot: Barbara Pariente, R. Fred Lewis, and Peggy Quince.

Although the justices are insisting that voters should ignore their rulings when they head to the polls, and consider only whether these jurists have ever committed a crime, their critics and other legal scholars say otherwise -- i.e., that it is absolutely relevant to their retention that voters consider whether these justices are interpreting relevant law according to its original public meaning, or whether they are activists who ignore the law and impose their own personal moral philosophy on cases that come before them.

(For the last several weeks Sunshine State News has reached out to the three justices [who are traveling around the state to sit down with newspaper editorial boards] to interview for this series. In September, we were notified by a representative of their joint campaign that they are specifically refusing to interview with the News.)

In 1997 in Jacksonville, a 14-year-old boy on his way to school was accidentally struck and killed by a truck driver in the early hours of the morning, when it was still dark outside. The nearby streetlight, managed by Clay Electric Cooperative Inc., was inoperative, and had been for some time before the accident.  The victim’s grandmother and estate took Clay Electric to court, arguing that it should be held civilly liable for negligence, since its failure to properly maintain the streetlight contributed to the accident.

The trial court found that the truck driver “was alert and operating his vehicle in a prudent manner and his headlights were on and operating properly,” that “if the [streetlight] had been operating properly, [the driver] would have seen the decedent in time to avoid the collision,” that “[t]he light nearest the site of the collision was not illuminated and it had not been illuminated for [some time] prior to the collision, and that “Clay Electric, although being contractually obligated to maintain the light and having been paid to do so, failed to maintain the light.” But the issue in the case was not whether the electric company had acted negligently in its maintenance of the light, but whether it owed a legal duty to the general public, and not simply to the city of Jacksonville.

The trial court found that no such duty to the general public existed, and so dismissed the claim against the company; this decision was reversed by an appeals court.

In 2003, the Florida Supreme Court heard the case (“Clay Electric Cooperative Inc. v. Johnson”), and in a 5-2 decision – joined in by Justices Pariente, Lewis, and Quince -- ruled that Clay Electric did owe a special duty of care to citizens generally, and not simply to the city. The court based its ruling on an application of the common law “undertaker’s doctrine”:

“Whenever 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.”

Applying this doctrine to the instant case, the court majority found that “Clay Electric assumed a specific, legally recognized duty to [the general public] to act with due care in maintaining the streetlights.”

Justice Raoul G. Cantero authored a dissent from the majority’s opinion, which was joined by Justice Charles T. Wells. In it, Cantero noted that this application of the “undertaker’s doctrine” to a public utility was completely without precedent in Florida law. Before the majority’s ruling in Clay Electric, utilities had only ever been found to have assumed a duty of care to the general public when their contracts with the government had explicitly specified as much.

As Cantero put it:

“As has been the law of this state for nearly a hundred years, for a utility to assume a duty to the public arising from a contract with a municipality, the contract must specifically establish an intent to compensate the public in the event of a default. Whether a utility assumes a duty to the public when it contracts with a municipality to provide streetlights will depend on the contract’s terms. ... As other states almost universally hold, the maintenance of streetlights is a benefit. Withholding it does not ‘launch[] a force or instrument of harm.’ It is at most ‘a refusal to become an instrument for good.’ The withholding of a benefit breaches no duty.” (Emphasis added)

It was unfair, Cantero suggested, to retroactively impose a legal burden on Clay Electric, which it could not have anticipated because its contract with the city did not contain such a duty and case precedent did not suggest one either.

Cantero also warned of the potentially disastrous public policy implications of this ruling:

“I fear that the majority has imposed a load too heavy to carry, and one that will grow increasingly burdensome and unpredictable. It will be the ratepayers who will ultimately suffer, once utilities calculate the costs of this new duty. Moreover, the court’s holding will produce an effect opposite of the one intended: our streets will not become safer. Rather, municipalities and utilities will ponder carefully before installing any new streetlights, especially in rural areas (where they are most needed) as it will only increase their potential liability.”

Cantero’s fears were never realized, thanks to the Florida Legislature, which responded to this ruling two years later with legislation that is presently incorporated into Section 768.1382 of the Florida statutes. These legislative provisions protect streetlight providers from lawsuits arising from the malfunction or failure of lights, so long as they a) inform the public of procedures in place to respond to reports of nonworking lights, and b) the lights are repaired within 60 days of notice to the companies of the malfunction.

Readers can review the majority’s ruling, and the dissent, for themselves. Did the ruling in this case represent a proper application of the original public meaning of then-existing Florida law to the case at hand? Or did the justices – including Pariente, Lewis, and Quince – invent a new law in order to reach a desired conclusion for the family of the victim of a tragic accident?



Reach Eric Giunta at egiunta@sunshinestatenews or at (954) 235-9116.