The L.E. Myers Company v. Young, ___ So. 3d ___, 40 Fla. L. Weekly D541 (Fla. 2d DCA February 27, 2015)
FPL hired a general contractor to replace four 85 foot power poles, weighing 21,000 pounds apiece. While the work was in progress, a motorist, who was “traveling at 91 miles per hour in a 40-mile-per-hour zone and weaving in and out of oncoming traffic[,] [w]ithout breaking, . . . slammed into the back of [a] stopped car,” inflicting fatal injuries upon its driver. Prior to the trial of the estate’s wrongful death case, the trial court entered summary judgment against the contractor determining that it was not entitled to a setoff, based upon the negligence of its subcontractors, because the contractor was engaged in an inherently dangerous activity. The trial court also granted the estate’s motion to amend its complaint to add a claim for punitive damages. The jury returned a verdict for $1.2 million in compensatory damages and $9.8 million in punitive damages, but the trial court reduced the award of compensatory damages, based upon the negligence of the rear ending driver, and reduced the award of punitive damages to $3.6 million, based upon Section 768.73(1)(a), Florida Statutes, which limits punitive damages to three times the amount of compensatory damages. The appellate court reversed because (1) the issue whether the contractor was engaged in an inherently dangerous activity presented a question of fact for the jury rather than one of law for the court, and (2) the contractor’s negligence, if any, was insufficient to support an award of punitive damages. (1) When the accident occurred, the flat bed truck that delivered the replacement power poles to the worksite was “parked on the shoulder of the road with its load intact. Although this scenario was not inherently dangerous, other circumstances created an issue of fact on the issue of inherent danger; namely, a trailer tire was partially within the roadway, a corner of the tractor-trailer may have impeded the flow of traffic, and a crane may have been lifting a pole when the accident occurred. (2) “However, there [was] simply no view of the evidence presented by the Estate that would support a conclusion that [the contractor’s] conduct was of a gross or flagrant character that evinced a reckless disregard of human life. Arguably, there was some evidence from which a jury could have found that [the contractor] was negligent in how it handled the traffic flow around the work site at the time leading up to the accident. However, the evidence as a whole showed that the danger from the parked flatbed trailer was open and obvious and the collision itself was a freak accident unexpectedly set in motion by an excessively speeding driver who was apparently completely oblivious to the road construction ahead of him. If anything, the evidence would have supported a claim for punitive damages against [the driver.] But there was no evidentiary basis for an award of punitive damages against [the contractor].” Although disputed, plausible evidence existed that the contractor “[had] traffic cones or warning signs in place at the time of the accident,” and, if so, this constituted a traffic plan, even if it may have been inadequate. The estate contended that the contractor attempted to cover up its alleged negligence after the accident occurred, but there was no evidence of an attempt to cover up the hazard before the accident occurred, and this was the relevant issue.
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