Florida Power & Light Co. v. Jennings

• Citation: 13 Fla. L. Weekly 39,518 So.2d 895
• Decision Date: 03 September 1987
• Docket Number: Nos. 68593,69069,s. 68593
• Parties: 13 Fla. L. Weekly 39 FLORIDA POWER & LIGHT COMPANY, Petitioner, v. S.B. JENNINGS a/k/a Bryan Jennings, Jr., et al., Respondents. FLORIDA POWER & LIGHT COMPANY, Petitioner, v. Virginia S. ROBERTS, et al., Respondents.
• Court: Florida Supreme Court

Page 895

518 So.2d 895

13 Fla. L. Weekly 39

FLORIDA POWER & LIGHT COMPANY, Petitioner, v. S.B. JENNINGS a/k/a Bryan Jennings, Jr., et al., Respondents.

FLORIDA POWER & LIGHT COMPANY, Petitioner, v. Virginia S. ROBERTS, et al., Respondents.

Nos. 68593, 69069.

Supreme Court of Florida.

Sept. 3, 1987.

Barry R. Davidson, of Steel, Hector & Davis, Miami, for petitioner.

David W. Foerster, of David W. Foerster, P.A., Jacksonville, for respondents.

H. Rex Owen and Bruce Crawford, of Owen & McCrory, and Harry A. Evertz, III, St. Petersburg, and Sheila McDevitt, Tampa, for Florida Power Corp. and Tampa Elec. Co., amici curiae.

Anita L. Shepperd and William H. Chandler, of Chandler, Gray, Lang & Haswell, P.A., Gainesville, for Florida Rural Elec. Cooperatives Ass'n., amicus curiae.

EHRLICH, Justice.

We have consolidated for our review two eminent domain cases, Florida Power & Light Company v. Jennings, 485 So.2d 1374 (Fla. 1st DCA 1986), and Florida Power & Light Co. v. Roberts, 490 So.2d 969 (Fla. 5th DCA 1986), ¹ as both cases involve the identical issue. The district court in Jennings certified the following question of great public importance:

IS EVIDENCE OF THE EXISTENCE OF FEAR AND ITS EFFECT ON MARKET VALUE ADMISSIBLE AS A FACTOR IN PROPERTY VALUATION, IF IT IS SHOWN THAT THE FEAR IS REASONABLE.

485 So.2d at 1379. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We hold that all evidence relevant to the issue of full compensation is admissible in eminent domain proceedings. The public's "fear" as a factor which may be relevant to the issue of just compensation may be utilized as a basis for an expert's valuation opinion regardless of whether this fear is objectively reasonable.

The "fear" at issue here concerns the public's perception of health and safety hazards arising from human proximity to 500,000 volt (500 kV) transmission lines. The petitioner, Florida Power & Light (FPL), initiated condemnation proceedings for a perpetual utility easement for FPL's planned 500 kV transmission lines; these lines are supported by 115-125 foot high structures with 99 foot crossarms. FPL's real estate appraiser testified below that there were no severance damages to the remainder of the landowners' property and further testified that the landowners would still retain some uses of the condemned easements. The property owners presented expert testimony from, inter alia, a professional planning consultant and three real estate brokers and appraisers. These real estate witnesses' testimony covered comparable sales of property in other counties located on either a 500 kV or 240 kV line and opined that the landowners had suffered damages on the taken parcels greater than those claimed by FPL's appraiser and that the landowners had suffered severance damages to their remaining land.

The issue presented here centers on two of the landowners' scientific expert witnesses, Dr. Norgard and Dr. Wertheimer, who testified concerning the adverse health effects of 500 kV transmission lines. Norgard, a professor of electrical engineering, testified about the coupling effect of electrical energy from power lines into the human body. Norgard concluded that there is a long-term chronic effect on humans from exposure to these fields. Wertheimer, an epidemologist, had undertaken field studies of leukemia in children; she had published findings that demonstrated a link between cancer in children and their proximity to power lines. Wertheimer testified below that recent studies from other countries indicate that constant exposure to high voltage electromagnetic fields promotes cancer.

FPL had filed a motion in limine to exclude these scientific experts from testifying. FPL argued that Casey v. Florida Power Corp., 157 So.2d 168 (Fla. 2d DCA 1963), represented the law in Florida on this issue and that such evidence was inadmissible unless a property appraiser could testify that his valuation opinion is based on the fact that potential purchasers of real property in the relevant county are knowledgeable about the alleged adverse effects and that these buyers would depreciate the land adjacent to a power line before they would buy it. The landowners responded to FPL's argument by pointing out that within the previous eighteen months, numerous articles had been published concerning the adverse effects of high voltage transmission lines. Consequently, the landowners argued, the public is aware of the issue and the market place reflects this fact. The landowners intended on introducing comparable sale studies, including one from another 500 kV line located in Hernando County; the landowners argued that the scientific experts' testimony was necessary to show the causes of the depreciation in value which the comparable sales studies would reflect.

The trial court denied FPL's motion and ruled that the scientific testimony was admissible; the court ruled this evidence was relevant not only to the issue of damages to the taken property but was also relevant to the issue of severance damages. The jury returned verdicts for each of the taken parcels which was greater than the valuation given by FPL's appraiser and also awarded severance damages for each parcel.

On appeal, the district court affirmed and rejected FPL's assertion that it was error for the trial court to refuse to follow Casey. While holding that admitting the testimony of the landowners' scientific experts was not an abuse of discretion by the trial court, 485 So.2d at 1379, the district court rejected the reasoning employed in Casey which held that "opinion evidence as to value in a condemnation case, based upon fear of a steel tower and high voltage transmission lines, is too speculative and conjectural to be considered as an element of damage to adjacent land." Casey v. Florida Power Corp., 157 So.2d at 170. Sub judice, the district court opted for what was characterized in Casey, 157 So.2d at 170, as the intermediate rule Under this rule, evidence of the existence of fear and its effect on market value may be admitted into evidence as a factor or circumstance to be considered by the trier of fact in a property valuation proceeding, so long as it is shown that the fear has a reasonable basis.

485 So.2d at 1379.

At the outset, we agree with the district court's rejection of Casey. Casey was premised, at least in part, on a characterization by the court that a potential buyer who would offer less than the "true value" for the property because of transmission lines and towers would do so because of timidity or ignorance, 157 So.2d at 170, and that such "ignorance and fear" cannot serve as the basis for a jury award. Id. at 171. We reject Casey for two reasons. First, the above quoted language referring to a potential buyer who would offer less than the "true value" of the property because of fear or ignorance is a conclusory and contradictory statement. The issue in eminent domain proceedings is a determination of what is the "true value" of the land taken for a public purpose. ² The second reason flows from the first. If potential buyers entertain fears concerning transmission lines and towers and would, therefore be willing to pay less for the property in question, then Casey's rationale excludes evidence which is extremely relevant to the central issue of what is full compensation to the landowner.

The district court's endorsement of the so-called intermediate rule which allows fear to be considered by the jury if the fear is reasonable has superficial appeal. We perceive the court's concern with the reasonableness of the public's fear to be based on an assumption that a jury award based upon an objectively unreasonable fear would in effect allow the jury to base its award on speculation and conjecture, which of course it may not do. See, e.g., Walters v. State Road Department, 239 So.2d 878, 882 (Fla. 1st DCA 1970) (a jury verdict based on such factors is in derogation of constitutional guarantee of full compensation). FPL and amici argue that the district court's rejection of Casey and its adoption of the intermediate rule with its requirement of a reasonable basis for fear, in fact exacerbates the problem of speculative jury awards, because it allows the jury to compensate a landowner for an inherently subjective and speculative element. We reject petitioner's argument in this context because its premise is unsound: The scientific testimony below was purportedly admitted to show one of the reasons why land adjacent to transmission lines decreases in value. As stated, the scientific testimony was deemed admissible evidence by the trial court because it would explain the decrease in land value which the landowner's comparable sales evidence would show. Contrary to petitioner's characterization, therefore, this scientific testimony concerning the alleged adverse health effects of a 500 kV transmission line was not introduced on the theory that the jury could consider the adverse health effects of these lines as an additional and independent basis for compensation.

We do, however, find merit in FPL's other arguments against the intermediate rule, and, therefore, we disapprove the district court's adoption of the intermediate rule. We reject as irrelevant the requirement that the landowner must prove to the jury that the public's fear of the alleged adverse health effects from these transmission lines has a reasonable scientific basis. Adverse health effects vel non is not the issue in eminent domain proceedings: full compensation to the landowner for the property taken is....