Courtney v. Florida Transformer, Inc.

• Decision Date: 13 September 1989
• Docket Number: No. 88-2068,88-2068
• Citation: 14 Fla. L. Weekly 2178,549 So.2d 1061
• Parties: 14 Fla. L. Weekly 2178 . FLORIDA TRANSFORMER, INC., a Florida corporation and Choctawhatchee Electric Cooperative, Inc., a Florida corporation, Appellees. District Court of Appeal of Florida, First District
• Court: Florida District Court of Appeals

Page 1061

549 So.2d 1061

14 Fla. L. Weekly 2178

Toni COURTNEY, as Personal Representative of the Estate of Phillip Courtney, Deceased, Appellant, v. FLORIDA TRANSFORMER, INC., a Florida corporation and Choctawhatchee Electric Cooperative, Inc., a Florida corporation, Appellees.

No. 88-2068.

District Court of Appeal of Florida First District.

Sept. 13, 1989.

Stanley Bruce Powell of Powell, Jones & Reid, Niceville, for appellant.

John N. Boggs, Panama City, for appellees.

JOANOS, Judge.

This is an appeal from a final summary judgment dismissing employees of Choctawhatchee Electric Cooperative, Inc. (CHELCO) as co-defendants in a wrongful death action filed by Toni Courtney, wife of decedent Phillip Courtney. The single issue raised in this appeal concerns the propriety of the grant of summary judgment in favor of co-employees of the decedent. We reverse.

On March 11, 1986, appellant filed a complaint for damages against Florida Transformer, Inc., for the wrongful death of her husband, Phillip Courtney. Florida Transformer filed an answer, affirmative defenses, and a third party complaint against CHELCO. CHELCO filed its answer, motion to dismiss, and notice of payment of workers' compensation benefits. On October 27, 1986, CHELCO's motion to dismiss was granted. ¹ The complaint was subsequently amended to include CHELCO employees Jackson, Hobbs, Gainey, Adams, and Bell, as defendants. On July 14, 1987, the individual defendants filed a motion for summary judgment, on the ground that their conduct did not rise to the level of gross negligence required for liability under the provisions of section 440.11, Florida Statutes.

The circumstances which led to Phillip Courtney's death and the lawsuit which is the subject of this appeal occurred on Monday, January 6, 1986, when a six man line crew, consisting of lineman Jackson, apprentice lineman Hobbs, winch truck operators Adams and Caswell, and groundmen Gainey and Courtney, was dispatched by CHELCO to replace a broken utility pole. The pole carried overhead power lines with 7,200 volts of electricity. The broken pole had been discovered on Friday night at which time it was stubbed, rather than replaced, due to wet, boggy conditions in the area around it. The crew supervisor was in a management meeting, and did not accompany the crew to the work site on the morning of the fatal injury. According to the testimony of CHELCO's director of operations, lineman Jackson was in charge on January 6, 1986. However, one of the winch truck operators stated that no one was in charge. Mr. Caswell, senior member of the crew in terms of years with CHELCO, said that it was not unusual for the crew to go on a job without a supervisor. Failure to have a supervisor present is a violation of the National Electrical Safety Code (NESC).

When the crew arrived at the job site, the area around the broken pole was still wet and boggy. After surveying the scene, the crew concluded that they would be unable to get a heavy bucket truck close enough to the pole, so they decided to replace the pole with a light winch truck. Because the insulated bucket truck could not be used, the crew also decided the line should be de-energized. After obtaining clearance to de-energize the three phase line, the crew then decided that with the line de-energized, they could save time and restore customer service sooner, by putting all the materials on the pole before setting it in the lines. They also decided that ground lines should be attached, and laid the lines out ready to be applied.

The breaker switches for de-energizing the lines were located some two to four miles from the work site. Before Caswell left the pole area to throw the breaker switches, he told the crew to put the grounds on the line. After Caswell opened the breakers on the three phase line, he called the crew at the pole by radio to advise that the breakers were open, and again told the crew to ground the lines.

Adams was operating the winch truck, which had been grounded. When the crew received the message that the breakers were open, Adams proceeded to set the pole. Adams gave his rubber gloves to Courtney, who was guiding the pole as Adams raised it with the winch. As the winch truck operator worked the new pole with its cross-arm up through the three phase lines, the pole brushed a line that was still energized, and electricity flowed through Courtney's body.

Caswell was still at the breakers when Courtney was injured. Jackson called Caswell, and asked if the line was dead. Caswell responded that the breakers were open, and Jackson advised him that a man had been injured. When Caswell arrived at the scene, Adams and Hobbs were performing cardiopulmonary resuscitation on Courtney. At that point, Caswell did not check to see if the lines had been grounded. He said he had given instructions to ground the lines because it is common practice, and is required by the safety manual.

Caswell's testimony concerning grounding the lines was corroborated by the depositions of the other employees. In addition, Hobbs testified that it is normal procedure to ground before work is undertaken, and he could offer no reason for the crew's failure to do so in this instance. Gainey said the crew discussed placing the grounds, but decided to place them after the pole was set, because they thought the line would be dead. Lineman Jackson said that although normally the crew would ground the lines, they had worked without grounding on other occasions. Jackson also testified that failure to ground the lines was a violation of a company safety rule. He concluded that if the grounds had been attached, there would have been no electrical flow through the line. Jackson conceded that the crew always grounded lines before working on them when a supervisor was on the scene. Jackson further stated that he had never before worked on a job in which breakers were opened manually, as they had been in this case, and then found the lines had not opened properly so that current still flowed through.

CHELCO operations manager Bell stated that it is a cardinal rule that work crews are always supposed to consider that a line is "hot" unless they have visual verification to the contrary. When Bell arrived at the scene, he observed that everything had been assembled to ground the lines, which indicated that the crew intended to ground the lines after the pole was set. He said that although the procedure followed by the work crew in this case was not preferred, such practice was followed approximately ten per cent of the time. The preferred method is to ground the lines before any other work is begun. According to Bell, the grounds could have been placed in this case by going to an adjacent pole or by moving a bucket truck under the line.

The statement of the registered engineer who reviewed the record on appellant's behalf characterized the conduct of the CHELCO employees as "gross negligence and conscious and wanton disregard of the most fundamental applicable safety rules." In the opinion of this engineer, the gross negligence of the defendant employees resulted in Courtney's electrocution. He further stated that the deposition testimony of the employees demonstrated an intentional and deliberate failure to verify that the overhead distribution lines were actually energized and properly grounded prior to proceeding with the broken pole replacement, and that such failure was a violation of the National Electrical Safety Code Rules and CHELCO Safety Rules.

CHELCO's workers' compensation carrier retained a professional engineer to conduct an in-house investigation concerning the events that resulted in Courtney's death. He testified that he found that the utility and the crew members working for the utility do not follow many of the guidelines established by the National Electrical Safety Code. He also determined that an oil reclosure which was connected to the circuit did not function properly, and therefore did not interrupt current flow as it was expected to do. He noted that the NESC specifies that an employer designate a person to be in charge of the crew, and that such person is charged with the responsibility to see that crew members follow safety guidelines. According to this engineer's testimony, his investigation indicated the employees worked on the assumption that the line was de-energized. In his opinion, it was probable the accident would not have occurred if proper safety procedures, including those outlined in the NESC, had been followed. He described the crew's failure to put grounds on the lines as a clear violation of safety practices, noting that grounding de-energized lines is fundamental. Further violations occurred in failing to test the lines...