Florida Power Corp. v. Taylor

Decision Date28 May 1976
Docket NumberNo. 75--1161,75--1161
Citation332 So.2d 687
PartiesFLORIDA POWER CORPORATION, a Florida Corporation, Appellant, v. Charles F. TAYLOR et al., Appellees.
CourtFlorida District Court of Appeals

Jeffrey S. O'Brien and Sam H. Mann, Jr., of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellant.

Donald V. Bulleit and William T. Atchley, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for Diversacon.

Ralph E. Elliott, Jr., and Frank C. Decker, Jacksonville, for Canal Authority of the State of Florida.

Stephen P. Kanar, of Fishback, Davis, Dominick & Simonet, Orlando, and Russell Troutman, of Troutman & Parrish, Winter Park, for Charles F. and Dolores Taylor.

SCHEB, Judge.

Appellant/Florida Power Corporation contends the trial court erred in entry of summary judgments against it on its third party complaint seeking both indemnity and contribution against the appellee/Canal Authority of the State of Florida and in seeking indemnity against appellee/Diversacon, Inc. We agree and reverse.

Charles Taylor and Dolores Taylor, his wife, sued Florida Power, alleging Mr. Taylor, an employee of Diversacon, undertook to measure the distance between the ground and one of Florida Power's high voltage transmission lines by extending a surveyor's rod into the vicinity of the line, whereupon the electrical current arced from the line to the rod resulting in injury to him. The Taylors further alleged that Florida Power, having Actual or Constructive knowledge of construction activities in the area, should have foreseen that some object might come in contact with or in close proximity to the power line; also, that Florida Power was negligent in maintaining uninsulated power lines so dangerously close to the ground and in failing to warn Taylor of the danger of bringing objects into contact with those wires. Florida Power denied all material allegations of the Taylors' complaint and asserted affirmative defenses.

Florida Power brought its third party complaint against the Canal Authority and Diversacon on the theory that should it be found liable, it would be entitled to contribution 1 and alternatively, since its negligence would be categorized as passive rather than active, it would be entitled to indemnity from both parties as active tortfeasors. Florida Power's claim of indemnity against Canal Authority was additionally based on a provision in a grant of an easement from it to Canal Authority.

The accident occurred during construction of the Cross Florida Barge Canal. The Canal Authority acquired the land where the accident occurred from Florida Power in 1968, by a conveyance wherein Florida Power retained an easement on, over, under, and across a 100-foot strip of land to maintain its electrical transmission lines. The coveyance was subject to a restriction that any roads built under its In one of the summary judgments granted against Florida Power the trial judge reasoned:

power lines would be no closer than 25 feet to those lines. The Canal Authority later made the lands available to the U.S. Army Corps of Engineers which in turn contracted with predecessors of Diversacon 2 to construct the Inglis Spillway and Dam in accordance with the Corps' plan. Sometime between September 1971, and April 1972, under Diversacon's supervision, the road under Florida Power's transmission lines was elevated a distance of six feet in violation of the deed restrictions.

'. . . Florida Power Corporation's liability to the plaintiff, if any, is based on 'active negligence' and not 'passive negligence' which would entitle it to indemnity or contribution from joint tortfeasors.'

It is now well settled that on a motion for summary judgment the burden of proof is on the moving party to show the absence of any genuine issue as to any material fact and all doubts and inferences must be resolved against the movant. Holl v. Talcott, Fla.1966, 191 So.2d 40; Booth v. Mary Carter Paint Co., Fla.App.2d 1966, 182 So.2d 292. Given that rule applicable to summary judgments, we proceed to the principles of law involved here.

INDEMNITY

Foremerly, under Florida law, one of two joint tortfeasors was generally not entitled to recover any reimbursement from the other. However, there developed an exception to this rule, based on the principle of indemnity. The principles of law governing indemnity are set forth in Stuart v. Hertz Corporation, Fla.App.4th 1974, 302 So.2d 187. In discussing the subject in Stuart, as applied factually to the controversy before us, Judge Mager points out that the right to indemnity any arise from either (a) an express contract, or (b) the existence and violation of a duty as between tortfeasors.

One common example of the principle which allows indemnity to tortfeasor is where an automobile owner is held vicariously liable for damages caused by a negligent driver of his vehicle. Fincher Motor Sales, Inc. v. Larkin, Fla.App.3d 1963, 156 So.2d 672; Hutchins v. Campbell, Inc., Fla.App.2d 1960, 123 So.2d 273. But, the rule has applicability beyond the context of vicarious liability. Thus, when the active or primary negligence of one tortfeasor and the passive or secondary negligence of another combine to proximately cause an injury to a third party, the passively negligent tortfeasor becomes entitled to indemnity from the actively negligent one. Maybarduk v. Bustamante, Fla.App.4th 1974, 294 So.2d 374.

Generally, the mere failure to discover an unsafe or dangerous condition created by a joint tortfeasor constitutes passive negligence and does not bar indemnity against the tortfeasor whose active or primary negligence created the dangerous condition. See Restatement of Law of Restitution, § 95; Kansas City Southern Railway Co. v. Payway Feed Mills, Inc., Mo.1960, 338 S.W.2d 1; United Airlines, Inc. v. Wiener, 9th Cir. 1964, 335 F.2d 379; Booth-Kelly Lumber Co. v. Southern Pacific Co., 9th Cir. 1950, 183 F.2d 902; Chicago Great Western Railroad Co. v. Casura, 8th Cir. 1956, 234 F.2d 441; Cobb v. Southern Pacific Co., 1967, 251 Cal.App.2d 929, 59 Cal.Rptr. 916. This principle was discussed in Winn-Dixie, Inc. v. Fellows, Fla.App.1st 1963, 153 So.2d 45, as modified, Winn-Dixie Stores, Inc. v. Pepsi-Cola Bottling Co. of Jacksonville, Inc., Fla.1964, 160 So.2d 102, where one of Winn-Dixie's customers was injured when a carton of beverages fell to the floor as a result of a negligently In the case now before us, there is a dispute as to when Florida Power first gained actual knowledge that Diversacon had raised the road. It is undisputed, however, that the day before Taylor's accident, Florida Power had been notified that the boom on a truck traveling on this elevated road had come into contact with one of its power lines. Florida Power then deemed it advisable to measure the height of the lines and sent someone from its company to check on this. Mr. Penny, its engineer, discussed the problem with Taylor on that same day. The following day Taylor extended his surveyor's rod to accomplish the needed measurement. The proof is in conflict as to the method Taylor was requested or directed to employ to measure the height of the lines from ground level. Florida Power contended he was to calculate the distance by triangulation; however, it is undisputed that Taylor extended his surveyor's rod upward and made a direct measurement. When the rod came into the vicinity of the power lines, the current arced and caused injuries to Taylor.

constructed display. There the plaintiff recovered verdicts against both Winn-Dixie and Pepsi-Cola. Winn-Dixie sought indemnity from Pepsi-Cola contending its (Winn-Dixie's) liability to the plaintiff resulted only from its secondary or...

To continue reading

Request your trial
26 cases
  • Christiani v. Popovich
    • United States
    • Florida District Court of Appeals
    • August 10, 1978
    ...3d DCA 1976); First Church of Christ Scientist v. City of St. Petersburg, 344 So.2d 1302 (Fla. 2d DCA 1977); Florida Power Corp. v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976); Leesburg Hospital Ass'n, Inc. v. Carter, 321 So.2d 433 (Fla. 2d DCA 1975); Steak Enterprises, Inc. v. Claus, 345 So.2......
  • Pacheco v. Power & Light Co., No. 3D99-3060
    • United States
    • Florida District Court of Appeals
    • March 14, 2001
    ...Co-op., Inc., 417 So.2d 764 (Fla. 1st DCA 1982); Norris v. City of Miami, 367 So.2d 1038 (Fla. 3d DCA 1979); Florida Power Corp. v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976); Florida Power & Light Co. v. Barrs, 127 So.2d 896 (Fla. 3d DCA 1961); Bush v. Alabama Power Co., 457 So.2d 350 Instea......
  • Hanscome v. Perry
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1987
    ...(1951) (emphasis added in both quotations). See also Traylor v. Gray, 547 S.W.2d 644, 658 (Tex.Civ.App.1977); Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla.App.1976); 41 Am.Jur.2d Indemnity, § 20; but compare Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 370 (1951); Sir......
  • Eastern Refractories v. Forty-Eight Insulations
    • United States
    • U.S. District Court — Southern District of New York
    • April 13, 1987
    ...— "active negligence" distinction. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490, 493 (Fla.1979); Florida Power Corporation v. Taylor, 332 So.2d 687, 690 (Fla.Dist.Ct.App.1976). Thus, the mere failure to discover an unsafe or dangerous condition created by a joint tortfeasor constitu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT