Florida Power & Light Co. v. Price, 33362

• Decision Date: 21 December 1964
• Docket Number: No. 33362,33362
• Citation: 170 So.2d 293
• Parties: FLORIDA POWER AND LIGHT CO., a Florida corporation, Petitioner, v. Gerald W. PRICE, Respondent.
• Court: Florida Supreme Court

Page 293

170 So.2d 293

FLORIDA POWER AND LIGHT CO., a Florida corporation, Petitioner, v. Gerald W. PRICE, Respondent.

No. 33362.

Supreme Court of Florida.

Dec. 21, 1964.

Fleming, O'Bryan & Fleming and Norman C. Roettger, Jr., Ft. Lauderdale, for petitioner.

Michael K. Davis of Watson, Hubert & Sousley, Ft. Lauderdale, for respondent.

PER CURIAM.

We are petitioned for a writ of certiorari to review the decision of the District Court of Appeal, Second District, in this case, reported in 159 So.2d 654 (Fla.App.2d, 1963).

The plaintiff, Respondent here, instituted an action at law in the Circuit Court against the defendant Florida Power and Light Company, the Petitioner here, to recover damages for injuries sustained while he was working as an employee of Harlan Electric Company. The latter, an electrical contracting company, entered into a contract with the defendant to construct an electrical distribution system in a new subdivision, which would be connected with defendant's electrical transmission system. Plaintiff alleged that while on a power pole a fellow employee of Harlan Electric Company on another pole several feet away negligently allowed a 'jumper' wire to come close enough to cause an electrical arc which energized the wire on which plaintiff was working on the first pole, causing plaintiff's injuries. The plaintiff alleged the defendant knew of the danger inherent to work done on or around wires charged with high voltage electricity; that defendant knew pole No. 2 carried wires so energized and owed to plaintiff a high degree of care to provide safe working conditions; and that defendant allowed Harlan's employees to energize the new distribution system without proper supervision and control by defendant. The Circuit Court dismissed plaintiff's first amended complaint and final judgment was entered against plaintiff.

On appeal to the District Court of Appeal, Second District, plaintiff, as appellant, contended his amended complaint stated a cause of action showing: (1) negligence on the part of defendant; (2) the defendant was vicariously liable for the negligence of Harlan and its other employees under the dangerous instrumentality doctrine and (3) the defendant was liable for injuries caused by the negligence of the independent contractor Harlan and its other employees because the work being performed was inherently dangerous.

The District Court of Appeal rejected plaintiff's contention that the complaint alleged facts indicating negligence on the part of the defendant, stating:

'* * * There are no allegations of fact showing that the plaintiff was without actual or constructive knowledge of the danger existing because of the work of the fellow employees on pole No. 2. The amended complaint alleges that the contract required energizing of the line, but there are no allegations of fact from which it may be concluded that the energizing of the line in the manner contemplated in the contract constituted a latent danger; to the contrary, the amended complaint alleges that the plan of construction was to make the new wires safe before energizing.'

It agreed, however, that the amended complaint stated a cause of action against the defendant because the complaint alleged defendant's electrical power is a dangerous instrumentality or agency and that the defendant was vicariously liable for the negligence of the defendant's independent contractor or the latter's employees. The decision of reversal is predicated upon a line of cases in our state beginning with Southern Cotton Oil Co. v. Anderson, 1920, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255.

The District Court of Appeal also agrees with plaintiff 'that the defendant power company, having employed an independent contractor to perform the inherently dangerous work of constructing and energizing an electrical power distribution system, was liable for injuries caused by the negligence of the independent contractor in the performance of the work. This is a further exception to the general rule as to independent contractors, and is closely related to the 'dangerous instrumentality doctrine.' This exception comes into play where the work which the independent contractor is to perform is inherently or intrinsically dangerous. As to such work, liability cannot be evaded by employing an independent contractor--unless proper precautions are taken. The taking of these precautions, it is said, ia a non-delegable duty owing to third persons who may sustain injuries from the work; and in such instances, the contractor is considered an agent or servant for whose act his employer is responsible. Whether work of a given character is to be regarded as inherently or intrinsically dangerous is to be determined by applying the test of whether danger inheres in the performance of the work [Emphasis theirs]; and it is sufficient if there is a recognizable and substantial danger inherent in the work, even though a major hazard is not involved. 57 C.J.S. Master and Servant § 590. We are of the view that a jury would be justified in finding that danger was inherent in the energizing of the system under the facts alleged in the complaint. The inherent danger of this work is quite similar to the work held to be inherently dangerous in Person v. Cauldwell-Wingate Company, 2nd Cir.1949, 176 F.2d 237. This work was of such a nature that in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken. In such a case, an owner is liable for injuries caused by the failure of an independent contractor to exercise due care in respect of the performance of the work. This principle of law is no less controlling in actions brought by an employee of the independent contractor than in actions brought by a third party [Emphasis ours]. See Annotation, 23 A.L.R. 1084, at 1129, and cases there cited. See aso Greer v. Callahan Const. Co., 1925, 190 N.C. 632, 130 S.E. 739. The amended complaint stated a cause of action within this principle of law.'

The above quotations appear to us to be in direct conflict with Gulf Refining Co. v. Wilkinson, 1927, 94 Fla. 664, 114 So. 503, where this Court quoted from 25 C.J. 197, as follows:

'By the weight of authority it seems that a principal is not liable for the negligence of an independent contractor, although the work to be done is intrinsically dangerous, so long as no negligence can be imputed to him in employing such contractor, and the work itself is lawful, and will not necessarily result in injury to another. There is, however, considerable authority to the contrary * * *.'

Inasmuch as the District Court of Appeal specifically concluded plaintiff's amended complaint contained 'no allegations of fact showing that the plaintiff was without actual or constructive knowledge of the danger existing because of the work of his fellow employees on pole No. 2' its reversal conflicts with Florida Power & Light Co. v. Robinson, 68 So.2d 406 (Fla.1953), in which it is stated:

'* * * 'A person who is having work done on his premises by an independent contractor, and has actual or constructive knowledge of latent or potential dangers on the premises, owes a duty to give warning of, or use ordinary care to furnish protection against, such dangers to employees of the contractor and subcontractor who are without actual or constructive notice of the dangers.' * * *'

In Vanlandingham v. Florida Power & Light Co., 154 Fla. 628, 18 So.2d 678, and Florida Power & Light Co. v. Brinson (Fla.), 67 So.2d 407, it is held that a power company is not an insurer but is only required to exercise that degree of care commensurate with the circumstances of the occasion.

Even if some of the conflicting language in the above decisions may be dicta, it is sufficiently conflicting with the decision under review to warrant or assuming certiorari jurisdiction.

We pass to the merits. It is our view that the District Court of Appeal failed to take into consideration exceptions to the doctrines upon which it predicates defendant's liability.

We make special reference to cases where the plaintiff was an employee of an independent contractor and sued the owner of the dangerous instrumentality or agency, or sued one for whom inherently...