Clay Electric Cooperative12/18/2003
Rehearing petition filed: 01/06/04; Rehearing denied: 05/13/2004.
CLAY ELECTRIC COOPERATIVE, INC., ETC., PETITIONER,
v.
DELORES JOHNSON, ET AL., RESPONDENTS.
CLAY ELECTRIC COOPERATIVE, INC., ETC., PETITIONER,
v.
LANCE, INC., ETC., ET AL., RESPONDENTS.
Two Applications for Review of the Decision of the District Court of Appeal - Direct Conflict First District - Case Nos. 1D00-1850 & 1D00-1854 (Duval County)
William T. Stone of Cole, Stone, Stoudemire & Morgan, Jacksonville, Florida, for Petitioner
Stephen J. Pajcic and Thomas F. Slater of Pajcic & Pajcic, P.A., Jacksonville, Florida; William A. Bald of Dale, Bald, Showalter & Mercier, P.A., Jacksonville, Florida; and Dennis R. Schutt of Schutt Humphries, Jacksonville, Florida, for Respondents
Charles T. Wiggins and R. Andrew Kent of Beggs & Lane, Llp, Pensacola, Florida, for Gulf Power Company, Amicus Curiae
Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Florida, for the Academy of Florida Trial Lawyers, Amicus Curiae
Timothy C. Conley and David W. McCreadie of Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, Florida, for Tampa Electric Companyand Edison Electric Institute, Amici Curiae
The opinion of the court was delivered by: Shaw, Senior Justice
We have for review Johnson v. Lance, Inc., 790 So. 2d 1144 (Fla. 1st DCA 2001) (hereinafter "Johnson"), and Lance, Inc. v. Johnson, 790 So. 2d 1163 (Fla. 1st DCA 2001) (hereinafter "Lance"), based on conflict with Martinez v. Florida Power & Light Co., 785 So. 2d 1251 (Fla. 3d DCA 2001) (hereinafter "Martinez"), review granted, 819 So. 2d 137 (Fla. 2002). We have jurisdiction. Art. V, ยง 3(b)(3), Fla. Const.
I.
While fourteen-year-old Dante Johnson was walking to his school bus stop during the early morning darkness on September 4, 1997, he was struck and killed by a truck in an area where a streetlight was inoperative. Dante's grandmother, Delores Johnson, who was Dante's caregiver, came upon the boy's "mangled, bloodied body" at the scene and fainted. She later filed a negligence claim against the following defendants: the truck's driver ("Ganas"), the truck's owner ("Lance"), and the streetlight maintenance company ("Clay Electric"). Dante's estate also filed suit against the same defendants and the two cases were consolidated.
Clay Electric filed an answer to the plaintiffs' complaint and subsequently moved for summary judgment, which was granted:
The undisputed material facts, for purposes of this Order, after all reasonable inferences are resolved in favor of the other parties opposing the pending motion, are as follows:
(A) The decedent, Dante Johnson, was struck by a motor vehicle being driven by Defendant Larry Ganas. The collision occurred while the decedent walked on or near a public street.
(B) The collision occurred during the early morning hours while it remained very dark. The decedent was wearing dark clothing and was walking in the same direction that Defendant Ganas was driving.
(C) Defendant Ganas was alert and operating his vehicle in a prudent manner and his headlights were on and operating properly. His vision was not impaired or obstructed. Despite these facts, he was unable to see the decedent in time to take evasive actions that would have avoided the collision due to the extreme darkness at the site of the collision.
(D) Several years before the subject coll
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