Case of the Day – Thursday, October 28, 2021


Bamboo – essentially kudzu with cellulose stalks. A report on pandas I saw on some forgettable channel last week reported, among other things, that the anthropomorphic beasts have been eating bamboo for 6 million years.

If that’s so, they certainly have done a lousy job of it.

Bamboo grows at two rates, fast and faster. It invades like the Germans into Russia, a plant so aggressive that landscapers recommend installing a concrete tank in the ground to ensure that its roots don’t go deep and spread into the neighbor’s land. It grows dense and tall, and takes no prisoners.

Florida Power & Light, the defendant in today’s case, considered bamboo a “critical removal” species. When found under FLP lines, bamboo was not to be trimmed. It was to be removed, killed dead, dead, dead.

That didn’t happen in today’s case, and the invasive plant was so high and thick that a teenager climbed it, and died when the bamboo bent over and contacted a live power line.

That’s where the personal injury lawyer came in. PI attorneys are their own type of invasive species. The complaints they file spread far and wide, like bamboo, and can be as aggressive as bamboo itself.

A personal injury case, if successful, results in an award of damages to the plaintiff intended to make him or her whole. You would think that would be straightforward, but the amount is computed by juries, and juries can be fickle. A crying mother who lost her son versus a faceless, soulless electric utility owned by a faceless, soulless holding company sporting a made-up name, Nextera Energy, Inc. That holding company, stock symbol NEE, had net income of $6.6 billion (with a “b”) last year, on total revenues of $16.7 billion.

That’s a lot of money, and it spawns plaintiffs’ attorneys’ arguments I’ve heard many time before: Corporate greed killed the boy, and don’t you think this poor woman deserves at least one half of one percent of FP&L’s obscene profits for her suffering? You, Mr. and Ms. Juror, need to send the defendant a message, and put the other corporate giants like it on notice that it cannot treat people this way.

In today’s case, the jury thought the loss of plaintiff Tricia Dominguez’s son was worth $12.5 million. It seems like a lot to me, but it is not my son who died. The tougher part is that the jury awarded Tricia another $15 million in punitive damages, damages awarded to punish FPL for its greedy and reckless decision to not cut the bamboo.

Punitive damages never made a lot of sense to me. Why should the plaintiff get them? If the object is to be like a fine in a criminal case, shouldn’t the punitive damages be paid to the state? And too often, the punitive damages seem to be as much a penalty imposed on a company for its size or profits as they are for truly abhorrent conduct.

Tricia’s PI attorney used a Florida doctrine known as direct liability, in which a corporation is punished for gross negligence if “there [is] willful and malicious action on the part of a managing agent of the corporation.” It worked, and FPL was socked with $15 million in punitives, despite the fact that the guy who was pilloried for gross negligence was a minor supervisor in a regional office, and despite the fact there was no evidence he even knew about the bamboo stand where the accident occurred.

Last week, a court of appeals threw a healthy dose of reality on the case, and undid the punitive damages.

Florida Power & Light Co. v. Dominguez, 2019 Fla. App. LEXIS 16114 (Ct.App. Fla. 2d Dist., Oct. 25, 2019). In December 2011, 15-year-old Justin Dominguez was climbing a tall stalk of bamboo in his neighbor’s backyard. The stalk bent into a power line, resulting in Justin’s electrocution and death. The boy’s mother, Tricia Dominguez, filed a wrongful death action against Florida Power & Light, arguing FPL was negligent because it ignored its own maintenance and safety standards when it failed to remove the bamboo, a fast-growing and uncontrollable plant, from the area near the line. She further alleged that FPL had been warned about the bamboo at the accident site but still failed to remove it. As a result of this negligence, she argued that FPL created a dangerous safety hazard that claimed her son’s life.

Tricia asked for punitive damages as well as for compensation for her loss, complaining that the accident scene was overgrown with trees so that the power lines were not easily visible in the area around the bamboo. She showed that FPL’s vegetation maintenance procedures explicitly recognized the risk of electrocution posed by foliage encroaching upon powerlines, including the danger to children who climb trees.

Bamboo in particular is a problem because of its aggressive growth rate, so FPL designated it as a “critical removal” species that should be removed outright instead of merely trimmed in the vicinity of power lines. Tricia argued that FPL had been told about the bamboo at the accident site by one of its contractors, who had recommended that it be removed. Despite the recommendation, Tricia alleged, FPL violated industry standards and its own vegetation maintenance policy by not doing so. Tricia asserted that this failure warranted punitive damages because it was the direct result of a corporate policy that prioritized cutting costs and corporate greed over the lives and safety of the general public.

Tricia argued that due to direct liability FPL through the behavior of Barry Grubb, the head of vegetation management for the region in which the accident occurred and the person identified by FPL as being its vegetation management program expert. Tricia ran with that, arguing that Barry was willfully ignorant about the circumstances and hazards surrounding Justin’s death. When answering interrogatories, he claimed that no trimming or other maintenance was necessary at the accident site even though he had never visited the scene himself. At the time of his deposition years later, Grubb [had still not visited the site and had no opinion on the adequacy of the maintenance there. He also testified that he was not familiar with language in FPL’s vegetation maintenance rules about the danger of electrocution from foliage near power lines. In sum, Tricia argued, regional vegetation manager Grubb taken a see-nothing, know-nothing approach. The jury agreed with this assessment and awarded her $15 million in punitive damages.

FPL appealed.

Held: The Court of Appeals upheld the wrongful death judgment, and the $12.5 million in compensatory damages. It reversed, however, on the punitive damages.

Direct liability is one of two theories recognized in Florida through which a corporation may be liable for punitive damages. Under the direct theory, liability for gross negligence is established if the corporation itself engaged in conduct that was “so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct,” and its conduct contributed to the loss of the injured party. Because a corporation cannot act on its own, “there must be a showing of willful and malicious action on the part of a managing agent of the corporation” to establish direct punitive liability.

A “managing agent” is more than just a manager or midlevel employee. Instead, the Court held, a managing agent is an individual like a “president [or] primary owner” who holds a position with the corporation which might result in his acts being deemed the acts of the corporation.

Here, Tricia sought punitive damages under the direct liability theory through the alleged gross negligence of a regional supervisor in FPL’s vegetation management program. At trial, supervisor Grubb was identified as the FPL employee who knew the most about this program, but he was only in charge of the program for a limited geographical area. He also testified that he has a manager himself, and that he does not make policy decisions relating to the program. While his position certainly comes with significant managerial power, Grubb does not qualify as a managing agent of FPL. Overseeing only a portion of FPL’s arborist program, which is itself ancillary to FPL’s primary function of providing electric power, Grubb is at best a midlevel employee more akin to a bank vice president or hotel manager than to a corporate officer or official who could represent FPL as a whole. Because Grubb is not a managing agent for purposes of direct punitive liability, the Court said, the award of punitive damages in this case had to be reversed.

Even if Grubb were a managing agent, punitive damages are only warranted if there is evidence he was negligent “equivalent to the conduct involved in criminal manslaughter.” To be punished by punitive damages, the Court observed, conduct must be “so reckless or wanting in care that it constitutes a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

But in this case, trial testimony established that Grubb was not directly involved with the accident and did not know about the details of Justin’s death until years after the fact. Grubb also seemed unaware of specific FPL safety standards cited by Tricia, despite being identified as the person most knowledgeable about FPL’s vegetation program. Whatever negligence a jury may infer from this evidence, the appellate panel ruled, “it certainly does not rise to the level of ‘reckless disregard of human life’ or an ‘entire want of care, which would raise the presumption of a conscious indifference to consequences’.”

– Tom Root


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