General Tel. Co. of Florida v. Choate

• Citation: 409 So.2d 1101
• Decision Date: 27 January 1982
• Docket Number: No. 81-188,81-188
• Parties: GENERAL TELEPHONE COMPANY OF FLORIDA, Appellant, v. David Cline CHOATE, Appellee.
• Court: Florida District Court of Appeals

Page 1101

409 So.2d 1101

GENERAL TELEPHONE COMPANY OF FLORIDA, Appellant, v. David Cline CHOATE, Appellee.

No. 81-188.

District Court of Appeal of Florida, Second District.

Jan. 27, 1982.

Rehearing Denied Feb. 24, 1982.

F. Ronald Fraley, Charles P. Schropp and Raymond T. Elligett, Jr., of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellant.

Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., and Larry Klein, West Palm Beach and McKeown & Gamot, Palm Beach, for appellee.

CAMPBELL, Judge.

Appellee, a lineman, was awarded damages for personal injuries he sustained when he fell from a power pole and his back struck appellant's telephone pedestal terminal located next to the pole. The record is devoid of any evidence to support liability on the part of appellant to appellee for his injuries based solely on the location of appellant's pedestal terminal in relation to appellee's employer's power pole as constituting the proximate or legal cause of those injuries. We, therefore, reverse the jury verdict and direct entry of a directed verdict as moved for by the appellant.

David Cline Choate had been a lineman for Peace River Electrical Cooperative (PREC) for eighteen years before the accident. When a power outage was reported, Choate was assigned to correct the problem. After clearing the area around PREC's pole, Choate used climbing hooks and a safety belt to ascend the pole to a height of fifteen feet. A gust of wind blew Choate from the pole and, as he fell, he struck appellant's pedestal terminal which was less than three feet from the "working side" ¹ of PREC's pole.

Choate sued appellant General Telephone (GTE) for his injuries, alleging that it had been negligent in placing the pedestal too close to the pole from which Choate fell. At trial appellee's expert witness testified that if the pedestal in this case had been placed three feet away from the adjacent power pole, Choate would not have struck it when he fell. In our opinion, the latter assumption is sheer speculation. If the pedestal had been located three feet away instead of where it was, Choate, instead of striking his back and being injured, might have struck his head and been killed.

Appellant's safety director testified as an expert witness that of the falls incurred by its employees, there were no recorded instances of anyone striking a pedestal terminal. Appellant also presented testimony by a representative of Southern Bell Telephone that pedestals are usually placed six inches to one foot away from poles so they will be less likely to be knocked over by lawnmowers or other vehicles. Finally, an employee of Florida Power & Light was called to confirm that, at the time the pedestal was installed, the prevailing practice was to place such pedestals approximately one foot away from the adjacent pole. It was also this witness' opinion that a pedestal would constitute no more of a hazard to a falling lineman than the ground would.

It is not necessary to indulge in the process of speculation as to what would have been the safest distance for appellant's terminal to have been located in relation to PREC's pole. Appellee's complaint contains but a single allegation of negligence on the part of appellant. That allegation was that appellant

negligently placed the aforesaid telephone pedestal terminal in a position which the Defendant knew or should have known was dangerous and constituted a hazard to service linemen, such as the Plaintiff, who must climb said electrical power pole and further, that the positioning of the aforesaid telephone pedestal terminal was in violation of the standards of the industry which the Defendant knew or should have known existed, which required that said telephone pedestal terminals be located no less than four (4) inches from the adjacent power pole, or in a larger arcing circle, no closer than six (6) feet from the adjacent power pole. (Emphasis added.)

Appellant presented unrebutted evidence that PREC's pole which appellee was climbing at the time of the accident was not the original pole which was in place when the pedestal was installed. The evidence shows that when replacing a pole it is common practice to erect the new pole next to the original one and then transfer the lines to the new pole. Thus, there is no evidence that the distance between the present pole and the pedestal is the same distance as it was from the pedestal to the original pole when appellant installed the pedestal. Therefore, there is no evidence to support appellee's sole allegation that appellant "placed" or "positioned" its terminal adjacent to PREC's pole. On the contrary, the sole evidence is that the pole appellee was climbing was "placed" or "positioned" by PREC adjacent to appellant's previously installed terminal.

According to the record, the pedestal was installed adjacent to the original pole on April 3, 1969, and the adjacent pole was replaced with a new pole on June 3, 1970. The record fails to denote the location of the original pole. Recognizing the practice testified to of leaving the original pole in place until the lines may be transferred to the new pole, there is no evidence to show what the distance separating the two was in 1969.

Nevertheless, even if the evidence showed that the new pole was placed the same distance from the pedestal, appellant would still not be negligent because the pedestal was not the proximate cause of Choate's injuries. Determination of proximate cause should rest on whether the defendant should be under a duty to protect the plaintiff against the event which did in fact occur. W. Prosser, Law of Torts 244 (4th Ed. 1971). If the defendant has created only a passive, static condition which made the damage possible, the defendant should not be liable. Id. at 247. See Note, Tests of Causation and The Florida Jury Instructions-The Current Conflict and the Need for a Change, 32 U.Fla.L.Rev. 308, 320-24 (1980).

In Florida, proximate cause exists only when there is a natural, direct and continuous sequence between the defendant's act and the plaintiff's injury so that it may be said that but for the act the injury would not have occurred. ² Sardell v. Malanio, 202 So.2d 746, 747 (Fla.1967); Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla. 1st DCA 1960) aff'd 127 So.2d 441, 443 (Fla.1961). See also Greene v. Flewelling, 366 So.2d 777 (Fla.2d DCA 1978).

In Biltmore Terrace Associates v. Kegan, 130 So.2d 631 (Fla.3d DCA 1961), the Third District Court of Appeal reversed a jury verdict for a minor who sustained injuries when he dove from a four foot wall owned by the defendant hotel and struck the ocean bottom in very shallow water. The wall was constructed to separate the hotel's pool area from the ocean. Due to the extreme weather...