Jones v. Florida Power & Light Co.
| Decision Date | 15 November 1989 |
| Docket Number | 87-2959,88-0798 and 88-0799,Nos. 87-2958,s. 87-2958 |
| Citation | 552 So.2d 284,14 Fla. L. Weekly 2641 |
| Court | Florida District Court of Appeals |
| Parties | 14 Fla. L. Weekly 2641 Vivian JONES, as Personal Representative of the Estate of Harry Jones, Jr., deceased, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Emma E. Weidenmuller, and Asplundh Tree Expert Company, a corporation, Appellees. |
Jack H. Vital, III, of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellant.
Paul R. Regensdorf of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee-Florida Power and Light.
Mitchell L. Lundeen of George, Hartz & Lundeen, P.A., Fort Lauderdale, for appellee-Asplundh Tree Expert Co.
This is an appeal from two final summary judgments and two cost judgments entered in favor of Florida Power and Light and Asplundh Tree Expert Company in a negligence action. We sua sponte consolidate those appeals, reverse and remand.
The Asplundh Tree Expert Company, under a contract with Florida Power and Light Company, trimmed some Norfolk pines that were close to a power line in a residential area of Broward County. However, instead of topping the tree off, only the branches close to the power line were trimmed. At the time Asplundh was trimming the tree, the owner of the property requested that the tree be trimmed symmetrically. The tree trimmers, who were performing the contract, said that in accordance with the contract with Florida Power and Light they trimmed only branches directly interfering with the power lines. Therefore, they declined to do further trimming.
Several months later the owner of the property hired the decedent, an experienced but unlicensed tree trimmer, to top off the remainder of the tree. In doing so, a branch from the portion being taken down fell on the power line and in attempting to remove that branch, the decedent was electrocuted and killed. The appellant, on behalf of decedent's survivors, brought suit against Florida Power and Light and Asplundh alleging among other things that the appellees had a duty to properly trim the tree in question, which duty it breached. The appellees moved for summary judgment, attaching affidavits which attested to the fact that the power lines were properly installed and maintained and that the tree branches were at least ten feet from the power line. Further, they introduced deposition testimony which showed that the decedent knew where the power lines were and was warned of the danger of the power lines. In contravention to these affidavits, the appellant filed an affidavit of a horticulturist who testified that within a reasonable degree of probability at the time of the accident, the tree branches would have been approximately six feet from the power line. Further, appellant offered the affidavit of an electrical engineering consultant who testified that Florida Power and Light had failed to require the tree service to cut the trees below the energized live conductors and in doing so violated several National Electric Safety Code Rules. This, he opined, was the proximate cause of the incident which resulted in the death of the decedent. The engineer also submitted an affidavit in which he stated that Asplundh had failed to follow industry standards in several respects in trimming the tree. No affidavits were submitted by Asplundh, which relied instead solely on the Florida Power and Light affidavits. Based upon this record, the trial court granted summary judgment.
We believe that there still remains an issue of material fact with respect to the issues of negligence and breach of duty in this case. There is a conflict between the affidavits regarding the application and meaning of the safety code provisions. In view of this conflict, it cannot be said that there is an absence of issues of material fact with respect to the code obligation which would establish the duty alleged to have been breached. With respect to Asplundh, the only affidavit offered stated that its tree trimming fell below industry standards. The issue of breach of duty is a question for the jury unless only one reasonable conclusion may be drawn from the facts in evidence. Florida Power and Light Co. v. Lively, 465...
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