A utility operator's personal liability for re-energizing downed lines

Attorney Answer

Possibly, and the first thing that decides it is who owns the utility you work for. If it is a city-owned or other government utility, Florida law generally bars suing you personally for an act within the scope of your job unless you acted in bad faith, with malicious purpose, or with wanton and willful disregard of safety; the claim runs against the utility instead. If it is an investor-owned company, an employee who personally commits a negligent act can be held liable for it even while doing the job, although the employer is ordinarily answerable as well.

Which kind of utility you work for. Florida's utility law names three kinds of electric utility. Fla. Stat. § 366.02(4):

(4) “Electric utility” means any municipal electric utility, investor-owned electric utility, or rural electric cooperative which owns, maintains, or operates an electric generation, transmission, or distribution system within the state.

Calling a company a “public utility” does not settle which kind it is. Whether a cooperative or a utility authority is treated like a government body for this purpose is a question for a lawyer who knows how yours is organized.

A government utility. Fla. Stat. § 768.28(9)(a) provides:

(9)(a) An officer, employee, or agent of the state or of any of its subdivisions may not be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

The same paragraph makes a suit against the government entity the exclusive remedy unless the act was committed in bad faith, with malicious purpose, or with wanton and willful disregard of human rights, safety, or property. The state's “subdivisions” include counties and municipalities, and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities (§ 768.28(2), Fla. Stat.).

A private utility. A Florida appeals court has held that a company's officers and agents are personally liable for torts they personally commit, even when acting within the scope of their employment: White-Wilson Medical Center v. Dayta Consultants, Inc., 486 So. 2d 659 (Fla. 1st DCA 1986). The Florida Supreme Court has said that power companies, while not insurers, must shoulder a greater-than-usual duty of care in proportion to the greater-than-usual zone of risk of their business: McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992). That case concerned a company's duty, not an individual operator's. The same decision explains that a duty arises where conduct creates a foreseeable zone of risk, while whether the particular injury was foreseeable is a question of proximate cause, ordinarily for the jury.

The company's procedure. A written company directive is a fact a court would weigh, but how much it would count depends on what the procedure required and on the circumstances of a particular close. That question needs a lawyer with the procedure in hand. Your employer will ordinarily be answerable as well for negligence in the course of your work, and you can ask it whether it defends and indemnifies employees for claims arising from their work.

What you can do

1. Find out how your employer is organized: a city or county utility, an investor-owned company, a cooperative, or an authority.

2. Get a copy of the written switching procedure that calls for the fourth close, and keep it.

3. Ask your employer whether it defends and indemnifies employees for claims arising from operating decisions made under company procedure.

4. If you are represented by a union, ask your representative how the contract treats claims against operators.

5. Raise any safety concern about closing a locked-out breaker through your supervisor or the company's safety program.

6. Even if you are handling this yourself, you would be best served by a brief phone consultation with a local Florida attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court actually handles this — is worth more than any general guidance, including this page.

⏱ Time limits apply. For an injury on or after March 24, 2023, a negligence claim must be brought within two years under § 95.11(5)(a), Fla. Stat. A claim against a government utility also requires presenting the claim in writing to the agency within three years after it accrues, and a denial, before suit under § 768.28(6)(a). If you are ever named in a claim, the papers carry their own deadline to respond, so contact your employer and a lawyer at once.