Meeks v. Florida Power & Light Co.

• Decision Date: 22 March 2002
• Docket Number: No. 5D01-1805.,5D01-1805.
• Citation: 816 So.2d 1125
• Parties: Linda MEEKS, Personal Representative of the ESTATE OF Herbert J. MEEKS, Deceased, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, and BellSouth Telecommunications, Inc., Appellees.
• Court: Florida District Court of Appeals

816 So.2d 1125

Linda MEEKS, Personal Representative of the ESTATE OF Herbert J. MEEKS, Deceased, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, and BellSouth Telecommunications, Inc., Appellees.

No. 5D01-1805.

District Court of Appeal of Florida, Fifth District.

March 22, 2002.

Robert P. Avolio and Tracy L. Markham of Avolio & Hanlon, P.C., St. Augustine, for Appellant.

John R. Hargrove and Robert C. Weill of Heinrich, Gordon, Hargrove, Weihe & James, P.A., Fort Lauderdale, for Appellees BellSouth Communications, Inc.

No Appearance for Appellees Florida Power & Light Company, a Florida Corporation.

SAWAYA, J.

Linda Meeks, the personal representative of the estate of her deceased husband, Herbert Meeks, appeals the summary final judgment entered in favor of BellSouth Telecommunications, Inc. (BellSouth) in the wrongful death action she filed after Mr. Meeks was electrocuted by downed Florida Power and Light (FPL) electric wires suspended from a rotted-out pole allegedly owned by BellSouth.¹ She argues, inter alia, that (1) the trial court erred in holding that BellSouth owed no duty to Mr. Meeks where there are questions of fact regarding the existence of a bailment of the pole to FPL and (2) the trial court erred in restricting the surviving minor child's recovery to only those years before he reached the age of 25. We agree.

Factual Background

On December 15, 1997, Mr. Meeks left his home situated on Poa Boy Farms Road to deliver a food platter to his daughter. Not far from his home, his path was blocked by a downed pole with live wires attached to it. The wires held the pole suspended about three feet above the road; the wires themselves drooped to within a foot of the ground. Mr. Meeks stopped his truck 50 to 100 yards from the pole. From his footprints, it was determined that Mr. Meeks got out of his truck and walked to within ten feet of the pole, at which point he was electrocuted. Mr. Meeks was pronounced dead at the scene. He is survived by his wife and by two children from a prior marriage—a daughter who was 28 years old at the time of the accident and a son who had just turned 24.

The parties stipulated that the pole fell across the road because the base of the pole had rotted. They do not agree, however, who was responsible for maintaining and inspecting the pole.

The pole was installed in 1952 by BellSouth's predecessor. As of the date of the 1997 accident, the pole was still tagged with a metal BellSouth tag as pole number 5 and was identified on BellSouth plats as a BellSouth pole. BellSouth claims, however, to have abandoned the pole in 1973 or 1974 by removing its wires from it and all the other poles in that pole line. After BellSouth removed its wires, BellSouth had nothing further to do with the poles; only FPL had wires running on the subject pole line.

FPL's use of BellSouth's poles is governed by their Joint Use Agreement (JUA), a detailed contract covering all aspects of the joint use of poles.² Under the JUA, each company has the right to use the other's poles. The JUA states that the owner of the pole "shall, at its own expense, maintain its joint poles in a safe and serviceable condition." Article IX of the JUA, entitled "Abandonment of Jointly Used Poles," provides that if the owner of a jointly-used pole wants to abandon any jointly-used pole, "it shall give [joint user] notice in writing to that effect at least sixty (60) days prior to that date on which it intends to abandon such pole." The JUA states that if, at the expiration of the sixty-day period, the joint user has attachments to the pole but owner does not, then the pole

thereupon becomes the property of the joint user and the joint user (a) shall indemnify and save harmless [the original owner] from all obligation, liability, damages, cost, expenses or charges incurred thereafter and arising out of the presence or condition of such pole or any attachments thereon, whether or not such liability is due to or caused by, in whole or in part, the negligence of [the original owner]; and (b) shall pay [the original owner] a sum equal to the then value in place of such abandoned pole....

FPL pays BellSouth to use poles not owned by it; the same is true of BellSouth.

When BellSouth removed its wires from the pole line, BellSouth did not notify FPL that it was abandoning the poles, contrary to the requirements of the JUA for abandonment. The written notice is important to FPL because without it, FPL would have no way of knowing whether it was required to assume maintenance of the pole. Neither company has a routine pole inspection program; thus, unless work has to be done on a wire, an individual pole is not visited. FPL does not assume that just because BellSouth has removed its wires, BellSouth has abandoned a pole as FPL has no way of knowing what BellSouth's future intent would be for the pole.

The trial court granted summary judgment in favor of BellSouth. The trial court ruled that even though BellSouth owned the pole, it did not owe Mr. Meeks a duty of care because a bailment relationship existed between BellSouth and FPL concerning the pole, thereby relieving BellSouth of any liability. The trial court also ruled that any damages that may have been recoverable on behalf of Mr. Meeks' minor son under section 768.21(3), Florida Statutes (1997), are measured up to the time the child reaches the age of 25. We will address first the issue of duty of care.

Duty Of Care

The existence of a legal duty of care owed by the defendant to protect the plaintiff from unreasonable risk of harm is an essential element of a cause of action based on negligence. Stevens v. Jefferson, 436 So.2d 33 (Fla.1983). The extent of that duty of care is dependent on the scope of the anticipated risks to which the defendant exposes others. Id. The Florida Supreme Court recognized long ago that telephone companies know that wooden telephone poles deteriorate over time and that they have a duty to inspect and maintain them in a reasonably safe condition. In Peninsular Telephone Co. v. Dority, 128 Fla. 106, 174 So. 446 (1937), the supreme court specifically held:

The defendant telephone company is held to take notice and have knowledge that wooden telephone line poles with one end in the ground do rot beneath the surface of the ground, and that such decay does not happen suddenly.... [T]herefore it is the duty of the company using such poles for its telephone wires to exercise all ordinary and reasonable care and diligence to maintain the safety of the poles by appropriate and sufficient examination and inspection of the condition of the poles being so used, including the parts of the poles that are below the surface of the ground as well as the portion that is above ground.

Id. at 450³; see also Webb v. Glades Elec. Co-op., Inc., 521 So.2d 258, 259 (Fla. 2d DCA 1988) (noting that utilities have a duty to, among other things, exercise care in the maintenance of their poles) (citations omitted). Simply put, a pole owner has a duty to maintain its poles to protect against the reasonably foreseeable harm that can befall the traveling public from rotted-out poles.

In the instant case, in 1952, BellSouth's predecessor installed the pole that fell and caused Mr. Meeks' death. As noted above, when the accident occurred in 1997, the pole had a metal BellSouth tag attached to it which designated it as pole number five. Moreover, the pole was identified on BellSouth's plats as a BellSouth pole. We conclude, as owner of the pole, that BellSouth has a duty to inspect and maintain it in a reasonably safe condition. Moreover, absent a contract providing to the contrary, the fact that other utilities have wires strung on the pole is generally not a basis to relieve the owner of the pole of the duty to maintain it in a reasonable safe condition.

The trial court found, however, that "[w]hile BellSouth may still have owned the utility pole in question, it clearly created a bailment relationship with Florida Power and Light...." In these proceedings, BellSouth argues in support of the application of the law of bailments.⁴ Establishing a bailment relationship with FPL is undoubtedly attractive to BellSouth because, as a general rule, when a bailment occurs, the bailor is not liable for injuries to third persons caused by the negligence of the bailee in the use of the bailed property. See Moessinger v. Johnson, 292 So.2d 606 (Fla. 2d DCA 1974). Thus we must next address the issue whether the trial court properly found that a bailment was created between FPL and BellSouth that relieved BellSouth of its duty of care.

Bailment

In S & W Air Vac Systems, Inc. v. Department of Revenue, State of Florida, 697 So.2d 1313 (Fla. 5th DCA 1997), this court generally defined "bailment" as "a contractual relationship among parties in which the subject matter of the relationship is delivered temporarily to and accepted by one other than the owner." Id. at 1315 (citation omitted). As a general rule, delivery of the item to the bailee must give him or her the right to exclusive use and possession of the item for the period of the bailment. S & W; see also Monroe Sys. for Bus., Inc. v. Intertrans Corp., 650 So.2d 72 (Fla. 3d DCA 1994), rev. denied, 659 So.2d 1087 (Fla.1995); 8A Am.Jur.2d Bailments § 42 (1997) (noting, "In order to constitute a sufficient delivery of the subject of a bailment, there must be such a full transfer, actual or constructive, to the bailee as to exclude the possession of the owner and all other persons and give to the bailee, for the time being, sole custody and control thereof.") (footnote omitted).

A bailment, being a contractual relationship, may result from either an express contract or one implied by the law. 8A Am.Jur.2d Bailments § 28 (1997). A contract for bailment generally requires delivery by the bailor and acceptance by the bailee. Id.; see also S & W. In the instant case, it is not clear whether there was a "...