Moore v. St. Cloud Utilities, 74--412

• Decision Date: 09 January 1976
• Docket Number: No. 74--412,74--412
• Citation: 337 So.2d 982
• Parties: Erick S. MOORE, a minor, by and through his natural father and legal guardian, Jack H. Moore, and Jack H. Moore, Individually, Appellants, v. ST. CLOUD UTILITIES, an agency, board or commission of the City of St. Cloud, Florida, a Municipal Corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 982

337 So.2d 982

Erick S. MOORE, a minor, by and through his natural father and legal guardian, Jack H. Moore, and Jack H. Moore, Individually, Appellants, v. ST. CLOUD UTILITIES, an agency, board or commission of the City of St. Cloud, Florida, a Municipal Corporation, et al., Appellees.

No. 74--412.

District Court of Appeal of Florida, Fourth District.

Jan. 9, 1976.

Rehearing Denied Feb. 6, 1976.

Arnold R. Ginsberg, Horton Perse & Ginsberg, Miami, and Nance & Cacciatore, Melbourne, for appellants.

Joe B. Weeks, Gurney Gurney & Handley, and Calvin J. Faucett, Orlando, for appellee-St. Cloud Utilities.

Monroe E. McDonald, Sanders McEwan Mims & McDonald, Orlando, for appellees-Cassel, Miller and Pennsylvania Nat. Mut. Cas. Ins. Co.

CROSS, Judge.

Appellant-plaintiffs, Erick S. Moore, a minor, by and through his natural father On March 27, 1970, appellee-defendant, James M. Miller, was driving a pikcup truck owned by appellee-defendant, Arthur L. Cassel doing business as Cassel's Garage, along U.S. 192 in Osceola County, Florida. Approximately eight miles east of Ashton, Florida, Miller lost control of the truck, ran off the side of the road and collided with an electrical power pole erected and maintained by appellee-defendant, St. Cloud Utilities. The collision caused the pole to snap and fall in the direction of the road. The three electrical power lines borne by the pole were not severed, but were brought in close proximity with the road as a result of the pole's fall.

and legal guardian Jack H. Moore, and Jack H. Moore individually, appeal a final judgment apportioning among various tort-feasors liability for damages resulting to the plaintiffs when the minor plaintiff came into contact with a downed live electrical power line. We reverse.

Shortly after the collision, appellee-defendant, David Milliron came upon the scene of the accident in his automobile. Appellant-plaintiff, Erick S. Moore, age 14, was riding as a passenger in the Milliron automobile. Milliron stopped, got out of his automobile and walked to the edge of the road closest to Miller and the pickup truck to inquire if he could be of assistance. Erick accompanied Milliron in this effort. It was decided that Milliron should position his automobile in such a manner as to allow the automobile's headlights to illuminate the accident scene. While Milliron was so positioning his automobile, Erick, who was still standing by the edge of the road, inadvertently came into contact with one of the downed live electrical power lines. As a result, Erick sustained serious injuries.

Thereafter, plaintiffs, Erick S. Moore, a minor by and through his natural father and legal guardian Jack H. Moore, and Jack H. Moore individually, filed suit against St. Cloud Utilities, an agency, board or commission of the City of St. Cloud, Florida, a municipal corporation, Home Insurance Company, St. Cloud Utilities' public liability insurer, Miller, Cassel d/b/a Cassel's Garage, Pennsylvania National Mutual Casualty Insurance Company, Cassel's automobile liability insurer, Milliron, Nationwide Fire Insurance Company, Milliron's automobile liability insurer, and Lumberman's Mutual Insurance Company, Milliron's homeowners insurer. A motion for a summary judgment filed by Nationwide was granted by the trial court as the negligence allegedly attributable to Milliron was not covered by Nationwide's liability insurance policy. Immediately prior to trial the plaintiffs announced a $25,000 settlement with Milliron and Lumberman's Mutual, and said parties defendant were dismissed from the suit.

The cause came on for trial. At the conclusion of the trial, the court submitted to the jury a special verdict form requiring the jury to determine the amount of damages sustained by Erick and by Erick's father as a result of the accident, and also to determine if and to what extent negligence of Erick, Miller, Milliron and St. Cloud Utilities was the legal cause of Erick's injuries. The jury, in returning its verdict, found that Erick sustained $450,000 damages, and that Erick's father sustained $20,000 damages. In addition, the jury found that Erick, Miller, Milliron and St. Cloud Utilities were negligent, and their negligence was the legal cause of the injuries suffered by Erick in the following percentages: Erick 20%; Miller 20%; Milliron 35%; and St. Cloud Utilities 25%. Thereafter the trial court entered final judgment apportioning liability for damages sustained by Erick and Erick's father according to the jury's determination of fault. Miller and Cassel d/b/a Cassel's Garage, were adjudged liable for 20% Of the respective plaintiffs' damages, i.e., to Erick for $90,000 ¹ and to Erick's father On appeal plaintiffs contend that the trial court erred in entering final judgment apportioning, as described above, liability for damages sustained by the plaintiffs.

for $4,000. St. Cloud Utilities was adjudged liable for 25% Of the respective plaintiffs' damages, i.e., to Erick for $112,500, ² and to Erick's father for $5,000. It is from this final judgment that plaintiffs appeal.

In Hoffman v. Jones, 280 So.2d 431 (Fla.1973), the Florida Supreme Court adopted the doctrine of comparative negligence. According...