Barnes v. Gulf Power Co.

• Decision Date: 15 December 1987
• Docket Number: No. BL-20,BL-20
• Citation: 517 So.2d 717,12 Fla. L. Weekly 2839
• Parties: 12 Fla. L. Weekly 2839 Robert A. BARNES and Nathan Michael Mashburn, Appellants, v. GULF POWER COMPANY, a Maine Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 717

517 So.2d 717

12 Fla. L. Weekly 2839

Robert A. BARNES and Nathan Michael Mashburn, Appellants, v. GULF POWER COMPANY, a Maine Corporation, Appellee.

No. BL-20.

District Court of Appeal of Florida First District.

Dec. 15, 1987.

Ray P. Pope of Shell, Fleming, David & Menge, Pensacola, for appellants.

D.L. Middlebrooks, M. Robert Blanchard and Charles J. Kahn, Jr. of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellee.

THOMPSON, Judge.

Appellants, plaintiffs below in this personal injury action, seek review of the trial court's entry of summary judgment in favor of the appellee. The judgment was based on the trial court's alternative findings that no duty was owed the plaintiffs by the defendant or that there was a lack of causal connection between any alleged negligence of the defendant and the plaintiffs' injuries. We agree with the trial court's finding that there was no causal connection between the alleged negligence of the defendant and the plaintiffs' injuries, and affirm.

At approximately 8:00 p.m. on December 27, 1983 the plaintiffs, two telephone repairmen employed by Southern Bell Telephone and Telegraph Company, were brutally attacked by unknown assailants at a work-site near downtown Pensacola. Their complaint alleged that Gulf Power was negligent in maintaining its electrical lines and in misrepresenting that it would send out repairmen to repair the lines, thereby delaying the telephone repair job until after darkness fell and proximately causing plaintiffs' injuries.

Assuming the defendant was negligent as alleged, it is not liable to the plaintiffs if there was an efficient, independent intervening cause of plaintiffs' injuries. This is true even if defendant's negligence resulted in the plaintiffs having to work late and that "but for" their having to work late they might not have been attacked. The defendant's negligence, at most, provided the occasion for the attack and the resulting injuries to the plaintiffs. Department of Transportation v. Anglin, 502 So.2d 896 (Fla.1987). Normally causation is a jury question, but when reasonable people could not differ, the issue is one of law for the court. The trial judge correctly found under the facts in this case that the attack upon the plaintiffs by the unknown assailants was an independent efficient intervening cause of the plaintiffs' injuries, and properly entered summary judgment in favor of the defendant. AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, J., specially concurs with written opinion.

ERVIN, Judge, specially concurring.

Were it not for the Florida Supreme Court's recent opinion in Department of Transportation v. Anglin, 502 So.2d 896 (Fla.1987), reversing Anglin v. State of Florida, Department of Transportation 472 So.2d 784 (Fla. 1st DCA 1985), I would have voted to set aside the summary judgment entered in favor of appellee. The rule this court stated in Anglin, subsequently disapproved by the supreme court, was as follows: "Only if reasonable persons could not differ as to the total absence of evidence to support any inference that the intervening cause was foreseeable may the court determine the issue as a matter of law." 472 So.2d at 788. We continued that "the defendants need not have notice of the particular manner in which an injury would occur; it is enough that the possibility of some accidental injury was foreseeable to the ordinarily prudent person." Id. (e.s.)

Our Anglin opinion had been largely influenced by the supreme court's earlier decision in Gibson v. Avis-Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980), pertaining to the issue of whether an intervening cause may supersede the negligence of the original actor. Gibson had stated the following rule: "If an intervening cause is foreseeable the original negligent actor may still be held liable. The question of whether an intervening cause is foreseeable is for the trier of fact." 386 So.2d at 522. The supreme court's opinion in Anglin concluded that we had read Gibson too broadly, because in Gibson the conduct of the original negligent actor--unlike that at issue in Anglin--"set in motion a chain of events which resulted in the plaintiff's injuries." 502 So.2d at 898. The court cautioned that "Gibson did not hold, as suggested by the district court's holding below, that all questions involving an intervening cause present a jury question." Id. at 899.

The supreme court's opinion in Anglin serves to clarify a point that may have been obfuscated by certain language in Gibson--the fact that the injury actually suffered may have been remotely or possibly foreseeable, despite the existence of an intervening cause, does not necessarily subject the original actor to liability. This position is strongly supported by the Restatement (Second) of Torts (1965) [hereinafter Restatement ]. Section 434(1), thereof, relating to functions of court and jury, states in part:

(1) It is the function of the court to determine

(a) whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff....

Once the court decides from the facts presented whether an issue exists that should properly be submitted to the jury on legal causation, it is next the jury's function to resolve "whether the defendant's conduct has been a substantial factor in causing the harm to the plaintiff...." § 434(2)(a) (e.s.). As further explained in comment c to the above section:

The question of what actually occurred in any particular case is for the jury, ... unless the testimony is so undisputed and uncontradictory that there is only one inference which reasonable men could draw from it. If this is the case, the court must determine whether the actor's conduct is a substantial factor in bringing about the plaintiff's harm, unless this question is itself open to reasonable difference of opinion, in which case it is for the jury.

(e.s.) Thus, as the above section and comments make clear, not all questions regarding whether an intervening cause is foreseeable are required to be decided by the trier of fact. It is rather the duty of the trial court to decide initially from the evidence presented whether the defendant's conduct is a substantial factor in producing the injury.

The specific reason that the Department of Transportation (DOT) was relieved from any liability to the plaintiffs in Anglin--notwithstanding that its negligence may have factually contributed to the harm suffered--was because of the highly extraordinary conduct of the intervening third person. As the supreme court observed:

While it may be arguable that petitioners [the original negligent actors], by creating a dangerous situation which caused the respondents to require assistance could have reasonably foreseen that someone may attempt to provide such assistance, it was not reasonably foreseeable that DuBose [the intervening third person] would act in such a bizarre and reckless manner. Petitioners' negligent conduct did not set in motion a chain of events resulting in injuries to respondents; it simply provided the occasion for DuBose's gross negligence.

502 So.2d at 899-900. The court concluded that the "policy of the law" would not extend tort liability to DOT's conduct under the circumstances presented. Id. at 899.

If I understand Anglin correctly, the court did not consider it unforeseeable that a third person would go to the aid of the motorist who was stranded as a result of the DOT's negligent design of the roadway, causing water to accumulate. It was not, however, reasonably foreseeable that the third person who rendered assistance would carry out his rescue mission in the bizarre fashion that actually occurred. The supreme court in essence decided that the intervening conduct of DuBose was so highly extraordinary as to relieve the DOT from liability. In so doing, it quoted with approval the following comments made by the Third District Court of Appeal in Stahl v. Metropolitan Dade County, 438 So.2d 14, 19 (Fla. 3d DCA 1983):

Florida courts, in accord with courts throughout the country, have for good reason been most reluctant to attach tort liability for results which, although caused-in-fact by the defendant's negligent act or omission, seem to the judicial mind highly unusual, extraordinary, bizarre, or, stated differently, seem beyond the scope of any fair assessment of the danger created by the defendant's negligence. Plainly, the courts here have found no proximate cause in such cases based solely on fairness and policy considerations, rather than actual causation grounds.

The above statements are consistent with section 435(2) of the Restatement, which asserts: "The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm." (e.s.) As stated at section 443, comment c of the Restatement, relating to normal intervening forces:

[I]f the actor's negligent conduct puts another in peril, the fact that a third person who intervenes to avert it should realize his incompetence to give safe aid does not necessarily relieve the actor from responsibility for the harm caused by the third person's interference. On the other hand, if the third person officiously intervenes when his incompetence is so great that any ordinary person would realize the grave danger of meddling with the situation, his interference may be regarded as so extraordinary as to relieve the actor from liability.

(e.s.)

In determining whether an intervenor's conduct is so highly extraordinary as to prevent the actor's negligence from being a legal cause of the injury suffered, the court must evaluate the event--not from the perspective of the actor at the time the injury occurs, but...