Florida Power & Light Co. v. Morris

• Decision Date: 18 October 2006
• Docket Number: No. 4D04-4884.,4D04-4884.
• Citation: Florida Power & Light Co. v. Morris, 944 So.2d 407 (Fla. App. 2006)
• Parties: FLORIDA POWER & LIGHT COMPANY, Appellant, v. James MORRIS, Appellee.
• Court: Florida District Court of Appeals

944 So.2d 407

FLORIDA POWER & LIGHT COMPANY, Appellant, v.James MORRIS, Appellee.

No. 4D04-4884.

District Court of Appeal of Florida, Fourth District.

October 18, 2006.

Rehearing Denied January 8, 2007.

Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Cheryl A. Kempf of Florida Power & Light Company, Juno Beach, for appellant.

Patrice A. Talisman of Hersch & Talisman, P.A., Coconut Grove, and Feinstein & Sorota, P.A., Miami, for appellee.

STONE, J.

Florida Power and Light (FPL) appeals a personal injury judgment.The plaintiff, Morris, aggravated a knee injury while "shooing cows" that had wandered onto his property from adjacent property owned by FPL.

The cows were owned by Jose Ruiz who occupies the FPL property under a written license from FPL containing the following provisions:

4.Company's Rights: . . . Licensee's use of the Land shall always be subordinate to Company's rights in the Land.Company reserves the right to enter upon the Land at any time, for its purposes. . . .Company and its contractors will not be responsible or liable for any damage or loss to Licensee resulting from Company's use thereof for such purposes.Further, Company may at its discretion install or permit others to install upon the Land overhead or underground facilities.

5.Restrictions on Use: Licensee shall not use the Land in any manner which, in the opinion of Company, may tend to interfere with Company's use of the Land or may tend to cause a hazardous condition to exist.Specifically, Licensee shall not perform any excavation on the Land, except such excavation necessary for generally accepted agricultural practices, installing and maintaining an irrigation system, and for the construction and maintenance of fencing . . . without prior written permission of Company.Licensee shall keep the land clean and clear of debris so as to prevent it from becoming unsightly and shall not store materials and will see to it that no debris or trash is dumped or deposited thereon.Licensee shall drill no well on the Land nor construct or erect any building, structure, fixture, shelter, attachment, or other improvement, whether the same be permanent or temporary, without prior written permission of Company in accordance with Company specifications.

7.Fencing: Fences may be installed on, over or across the Land upon obtaining prior written permission from Company, provided Licensee installs gates of adequate size to provide Company vehicles with ingress and egress to its facilities at all times.Such gates shall be provided at all locations where the fences cross Company patrol and finger roads and at all locations otherwise specified by Company.Fences and gates are to be grounded according to Company's specifications.

9.Compliance with Laws: Licensee agrees ... to comply with all laws . . . for the purpose for which this license is granted and for the protection of the land.

The two properties are separated by a wire and post fence.There is no evidence that FPL was engaged in any active use of the property.At the time Ruiz took over the property, the fence was in good condition.Ruiz testified that the fence had been cut on several occasions since he put his cows on the land, allowing some to wander beyond the fence; each time, he fixed the fence at his own expense.Ruiz stated that it is his responsibility to keep the cows within the fenced area.

Meeker, of FPL's land management department, who negotiated the license for FPL, testified in deposition that, typically, the livestock licensee maintains the fence.However, another witness, a FPL real estate representative, testified that he did not know who bore the responsibility to maintain the fence.FPL real estate manager, Douglass, when asked in deposition who was responsible for the maintenance of the fence, stated, without further explanation or application to the facts of this case, "If the fence is our fence and it's on our land, not an easement, then it would be ours."We note, however, that Douglass' testimony was in response to a hypothetical Morris' counsel posed and is out of context.The witness testified in context, as follows:

Q: As you sit here today, as the project manager of FPL, who is responsible for the maintenance of the fencing on the property?

A: I don't know.

In an earlier appeal in this case, we reversed a trial court order that had dismissed Morris' case.The complaint alleged that both Ruiz and FPL had a duty to maintain the fence in a safe condition.The trial court had dismissed the complaint with prejudice on the ground that the complaint failed to state a cause of action against FPL, reasoning that a landowner that neither owned nor had control of livestock had no duty to erect or maintain a fence and no liability for injuries caused by the livestock.Morris v. Florida Power & Light Co.,753 So.2d 153(Fla. 4th DCA2000)(Morris I).

In Morris I,we concluded that "[a]lthough plaintiff may not ultimately be able to prove a case against FPL, his complaint should not have been dismissed with prejudice for failure to state a cause of action against FPL at this early juncture,"because the terms of the license were not in their complaint.Id. at 154.We cited and discussed Bowen v. Holloway,255 So.2d 696(Fla. 4th DCA1971), andDavidson v. Howard,438 So.2d 899(Fla. 4th DCA1983), rev. denied,450 So.2d 486(Fla.1984), as the two cases primarily relied on by the parties, and stated:

We conclude that the trial court's dismissal as to FPL was premature in light of the fact that the terms of the agreement between Ruiz and FPL are not, so far as this record shows, known.If there were an agreement, and if the agreement required Ruiz to maintain the fence and not FPL, FPL would not be liable according toDavidson.The complaint does allege that Ruiz complained to FPL that the fence was in disrepair, which suggests that FPL may have agreed that it would maintain the fence.If FPL did, it may be liable.

Id. at 154-55(emphasis added).

Essentially, Morris I applied this court's Davidson opinion adversely to Morris, but recognized that FPL could be found liable if it had agreed to maintain the fence.Following our remand, Morris filed an amended complaint, adding a count of nuisance against FPL.The case went to trial and the jury found both FPL and Ruiz liable.The court denied FPL's motions for directed verdict and new trial.

The question of whether a defendant in a negligence action owes a duty to the plaintiff is one of law.Robert-Blier v. Statewide Enter., Inc.,890 So.2d 522, 523(Fla. 4th DCA2005).

Morris asserts that the law of general premises liability with respect to a landowner's duty applies:¹

Although a landowner will not be responsible for injuries caused solely by the lessee's actions, the owner may be liable to a third party if, under the terms of the lease, he retains responsibility for maintenance and inspection, or where if the owner retains a possessory interest in the property.Thus, it is not ownership of the property which determines the duty of care, but rather, the failure of a person who is in actual possession and control (be it the owner, an agent, a lessee, a construction contractor, or other possessor with authority or control), to use due care to warn or to exclude, licensees and invitees from areas known to the possessor to be dangerous because of operations or activities or conditions.

Worth v. Eugene Gentile Builders,697 So.2d 945, 947(Fla. 4th DCA1997)(internal citations omitted).Generally, control and responsibility are issues of fact to be resolved by the jury.Thompson v. Gallo,680 So.2d 441, 443(Fla. 1st DCA1996)(citation omitted).

A landlord's duty in livestock fencing cases, rather than focusing on a foreseeable zone of risk analysis, is governed by what FPL deems a "unique set of statutory and common law rules establishing legal duties."In Davidson,the plaintiff was killed when his truck hit a cow.438 So.2d at 900.The cow was owned by Weiser and Freidheim, Inc.Id.The Collier Company, who owned the land upon which the cow was grazing, had leased the property to W.D. Ranch for grazing purposes; W.D. Ranch allowed Weiser and Freidheim, Inc. to graze cattle on the property.Id.Under the lease agreement, Weiser and Freidheim, Inc. were to maintain the fences around the property; in addition to Weiser and Freidheim's cattle grazing, W.D. Ranch also used the property for recreational purposes.Id.

The plaintiff brought suit against Collier, W.D. Ranch, and Weiser and Freidheim, Inc.In Davidson,we said:

During the trial the parties were primarily concerned with applicability of Chapter 588, Florida Statutes(1975).A portion of this chapter, Sections 588.12-588.26(Chapter 25236, Laws of Florida(1949)), is known as the Warren Act whereby the legislature in 1949 declared it necessary to have a statewide uniform livestock act embracing all public roads.§ 588.12, Fla. Stat.It was the purpose of the act to place a duty upon all owners of livestock to prevent their stock from running at large or straying upon the public roads of this state.§ 588.14, Fla. Stat.If an owner of livestock either willfully, intentionally, carelessly, or negligently allowed his stock to run at large or stray upon public roads he became liable for any damage to persons or property.§ 588.15, Fla. Stat.The act defines an "owner" of livestock as any person "owning or having custody of or in charge of livestock."§ 588.13(2), Fla. Stat.

Confusion has prevailed in this case because the plaintiffs have proceeded upon the theory that Section 588.11, Florida Statutes(Chapter 25357, § 7, Laws of Florida(1949)), which reads as follows:

The owner of legally enclosed land shall maintain in reasonable good condition the fence or enclosure around such land and shall maintain in legible condition any and all posted notices as required by §§ 588.09,588.10, but a substantial or...