Florida Power & Light Co. v. Roberts

• Decision Date: 05 June 1986
• Docket Number: 85-431 and 85-765,Nos. 85-430,s. 85-430
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 1275 FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellant, v. Virginia S. ROBERTS, et al., Appellees.

Page 969

490 So.2d 969

11 Fla. L. Weekly 1275

FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellant, v. Virginia S. ROBERTS, et al., Appellees.

Nos. 85-430, 85-431 and 85-765.

District Court of Appeal of Florida,

Fifth District.

June 5, 1986.

Rehearing Denied July 3, 1986.

Darrey A. Davis & Barry R. Davidson of Steel, Hector & Davis, Miami, for appellant.

David W. Foerster, P.A., Jacksonville, for appellees.

COBB, Chief Judge.

Florida Power & Light Company (FPL) appeals from a final judgment based on a jury verdict in a condemnation action which awarded taking value and severance damages to appellees, Virginia S. Roberts and Richard K. Whitehead, Sr. FPL brought a condemnation action against appellee Roberts in order to acquire a 60-acre parcel of land for a substation site, and against Whitehead and Roberts in order to acquire an electric transmission easement across various parcels of their land for the construction, operation and maintenance of 500,000 volt (500 kV) transmission lines linking coal-fired electric plants in Georgia with Florida. The cases were consolidated for trial on the compensation issues.

Section 73.071(3)(b), Florida Statutes (1983), allows the jury to determine not only the value of the property sought to be appropriated, but also "[w]here less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking...." Here, appellees sought to show that the electromagnetic fields associated with high power electric transmission lines would create an adverse effect on adjacent remaining property by presenting the expert testimony of John Norgard, an electrical engineer, and Nancy Wertheimer, an epidemiologist. Both testified that the construction and operation of 500 kV transmission lines by FPL would pose a health hazard to people living on land adjacent to the lines, resulting in devaluation of those lands. FPL had filed motions in limine prior to trial objecting to the qualifications of these expert witnesses and to the propriety of their testimony on the ground that the alleged adverse effects did not have any relationship to the value of land adjacent to those lines in Putnam County. The motions were heard as objections during the trial and were denied. The primary issue with which we are concerned on appeal is the admissibility of this "scientific" evidence.

FPL argues that Casey v. Florida Power Corp., 157 So.2d 168 (Fla. 2d DCA 1963), mandates reversal of the severance damages in this case. As in the instant case, Casey was a proceeding to condemn an easement for an electrical transmission line. The Second District upheld the trial court's exclusion of the profferred testimony of an expert that the electric transmission lines would reduce the value of the remaining land due to public apprehension of the hazard. The court noted that there were three divergent views on this issue (the majority, intermediate and minority rule), but adopted what the condemnor in that case considered was the majority rule--that opinion testimony as to value in a condemnation case, based upon fear of high voltage transmission lines, is too speculative and conjectural to ever be considered as an element of damage to adjacent land. The court stated:

That a prospective purchaser of the land of the respondents will be so timid or so ignorant that he either will not buy at all or will offer less than the true value because of the transmission lines and towers is too highly speculative in regard to this particular land to be taken into consideration. This court, like the majority of other courts, recognizes the owners' right to full and just compensation; but when a jury must base its award upon ignorance and fear, we must draw the line; such a basis cannot possibly result in fair and just compensation. This court will go with what the petitioner calls the majority rule and hold that no error has been made to appear in the ruling of the trial court. For authority on this point see 49 A.L.R. 702; 124 A.L.R. 407; 5 Nichols on Eminent Domain, 3d Ed., Sec. 16.103(1); and Institute on Eminent Domain, Southwest Legal Foundation, 1960 Ed., pp. 104, 105.

157 So.2d at 170-71.

The "majority rule" adopted in Casey holds that there will be no compensation for alleged diminution of value of property due to the fears of prospective purchasers. This view assumes that the fears concerning electric transmission lines are generally unjustified and founded upon ignorance and superstition and, therefore, are too speculative and...