Opinion
Case No. 3D03-1753.
Opinion filed March 24, 2004.
An Appeal from the Circuit Court for Miami-Dade County, Jeri B. Cohen, Judge, Lower Tribunal No. 02-6789.
Deutsch Blumberg and James C. Blecke, for appellant.
Hicks Kneale and Mark Hicks, for appellee.
Before COPE, GODERICH and FLETCHER, JJ.
The plaintiff, Theresa Felsen, appeals from an adverse final summary judgment. We reverse.
Felsen brought suit against Florida Power Light Company [FPL]. Felsen alleged in her amended complaint that "FPL was involved with supplying and maintaining . . . the overhead lighting on a wooden FPL pole over the first row of the parking area located in [a] metered parking lot" in the City of Miami Beach. Felsen also alleged that "FPL negligently inspected, repaired and/or maintained a light located in the metered parking area described above so as to cause [her] to trip and fall due to inadequate lighting, which created a dark and dangerous condition . . .;" that FPL negligently created or allowed a dangerous condition to exist, namely, a non-operative light; and that FPL failed to warn her of the dangerous condition. Further, Felsen alleged that FPL had "a duty which extended to the users of the aforementioned area . . . to maintain the lighting in a good working and operative condition."
In its answer to the amended complaint, FPL admitted that it provided lighting to the parking area located in the metered parking lot but denied the rest of the allegations. As affirmative defenses, FPL alleged the plaintiff's contributory negligence and the negligence of other third parties.
FPL filed a motion for summary judgment stating that the facts that give rise to this action are as follows: that FPL installed the streetlight in question at the request of the City of Miami Beach in 1951; that FPL had no involvement in the lighting design, placement, fixture, wattage or illumination of the streetlight; that the streetlight is located on a directional arm that faces away from the parking lot and illuminates an adjacent alleyway; that although the streetlight is owned and maintained by FPL, it was placed in that position at the City's request; that the streetlight is located in a City-owned curb that also holds parking meters that face into the parking lot; and that the parking lot was installed sometime after 1963, at least twelve years after the streetlight was installed. These factual representations are supported by citations to deposition testimony and other exhibits. Lastly, FPL states, "the lighting experts in this case concur that the required illumination in this lot should be 1.0 candlepower and plaintiff fell in an area which was below that requirement with or without the benefit of the streetlight." However, this statement is not supported by any citation to the record.
FPL argued that it was entitled to summary judgment based on this Court's opinion in tc "Martinez v. Florida Power Light Company, 785 So.2d" \f o" Martinez v. Florida Power Light Co., 785 So.2d 1251 (Fla. 3d DCA 2001) (holding that an electric company under contract to make repairs and maintain streetlights has no common law duty to third persons who are injured), review granted, 819 So.2d 137 (Fla. 2002). Alternatively, FPL argued that it has no duty to a plaintiff who fell in a parking lot that it does not own, control or maintain, and that the plaintiff failed to show negligent maintenance of the streetlight as there is no evidence to show how long the streetlight was non-operative or that FPL had notice of its condition. Further, FPL argued that it had no control over or involvement with the design of the parking lot itself, the lighting design therein, or compliance with illumination standards.
In opposition, Felsen argued that FPL admitted that it undertook the duty to inspect and maintain the streetlight, that FPL owed Felsen a duty of care, and that FPL's failure to maintain the streetlight increased the risk and created a foreseeable zone of risk.
The trial court granted final summary judgment in favor of FPL relying on Martinez v. Florida Power Light Co., 785 So.2d 1251 (Fla. 3d DCA 2001). Felsen's appeal follows.
During the pendency of this appeal, the Florida Supreme Court quashed Martinez v. Florida Power Light Co., 785 So.2d 1251 (Fla. 3d DCA 2001), because it expressly and directly conflicted with Clay Electric Cooperative, Inc. v. Johnson, Nos. SC01-1955 SC01-1956, 2003 WL 2296277 (Fla. Dec. 18, 2003). Martinez v. Florida Power Light Co., 863 So.2d 1204 (Fla. 2003). Therefore, Felsen contends that we must reverse on that basis.
In contrast, FPL contends that the trial court nevertheless properly entered final summary judgment because Felsen has failed to state a premises liability action against FPL because it is uncontroverted that FPL did not own, operate or control the City's parking lot where Felsen fell. We agree but note that Felsen's complaint does not allege premises liability but rather negligent maintenance. Next, FPL argues that under the analysis dictated by Clay Electric, it did not assume any duty to the plaintiff as a matter of law. Upon carefully reviewing the record before us, we reverse and remand for further proceedings.
In Clay Electric, the Florida Supreme Court set out the "undertaker's doctrine" as follows:
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 — ie., the "undertaker" — thereby assumes a duty to act carefully and to not put others at an undue risk of harm.
Clay Electric, slip op. at 3.
Further, the Florida Supreme Court explained that the "undertaker's doctrine" applies to both governmental and nongovernmental entities and not just to parties in privity with one another but also to third parties. Clay Electric, slip op. at 3. The Florida Supreme Court then adopted section 324A of the Restatement (Second) of Torts as the standard for assessing liability in such cases:
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 a third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement Second of Torts § 324A (1965).
Clay Electric, slip op. at 3.
In the instant case, FPL has admitted that it undertook the duty to inspect and maintain the streetlight in question. However, in assessing liability, there are genuine issues of material fact that remain. For example, should FPL have recognized that the maintenance of the streetlight was necessary for the protection of a third person such as Felsen because "the streetlight may have fortuitously cast a certain amount of light on parts of the lot," did FPL fail to exercise reasonable care in inspecting and maintaining its streetlight, and if so, did this failure to exercise reasonable care increase the risk of harm to the plaintiff? Clay Electric, slip op. at 3 (quoting Restatement Second of Torts § 324A (1965)).
There may not have been an increased risk of harm to Felsen if as FPL states in its motion for summary judgment, "the lighting experts in this case concur that the required illumination in this lot should be 1.0 candlepower and plaintiff fell in an area which was below that requirement with or without the benefit of the streetlight." However, this statement was not supported by any citation to the record.
Because genuine issues of material fact remain, we reverse and remand for further proceedings consistent with this opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.