Norris v. City of Miami

• Decision Date: 30 January 1979
• Docket Number: 77-2416,Nos. 77-2415,s. 77-2415
• Court: Florida District Court of Appeals
• Parties: Claboen NORRIS et ux., Appellants, v. CITY OF MIAMI and Florida Power & Light Company, Appellees.

Page 1038

367 So.2d 1038

Claboen NORRIS et ux., Appellants, v. CITY OF MIAMI and Florida Power & Light Company, Appellees.

Nos. 77-2415, 77-2416.

District Court of Appeal of Florida, Third District.

Jan. 30, 1979.

Rehearing Denied March 16, 1979.

Alldredge & Gray and James H. Gray, Jr., Miami, for appellants.

George F. Knox, Jr., City Atty. and Clinton J. Pitts, Asst. City Atty., Steel, Hector & Davis and Norman A. Coll, Miami, for appellees.

Before HAVERFIELD, C. J., and HENDRY and HUBBART, JJ.

HENDRY, Judge.

Appellants/plaintiffs take this consolidated appeal from a "summary final judgment" entered in favor of appellee/defendant Florida Power & Light Company, and from a "order granting summary final judgment" entered in favor of appellee/defendant City of Miami, in a negligence action.

Appellant Claboen Norris is an independent contractor in the business of cutting and trimming trees. Mr. Norris was hired by Eddie and Shirley Cohn to trim certain trees on their property. Ordinance No. 8301 of the City of Miami required that a permit be obtained from the City permitting the cutting and removal of their trees. Norris began to cut the trees on the Cohn property without the required permit. Shortly thereafter, an inspector from the City of Miami came by and ordered Norris to stop working. Shirley Cohn was informed by the inspector that a permit was needed to proceed with the work. On August 4, 1976, a permit was applied for and obtained by Shirley Cohn pursuant to the aforementioned ordinance and Norris completed the job.

Some time after Norris had completed the job authorized by the permit, Mr. Cohn employed Norris to cut the branches of a number of trees located on an adjacent City of Miami right of way. While the trunks of the trees were situated on the City's property, certain branches overhung onto the Cohn property creating a hazard to a guesthouse structure thereon. Various power lines owned and maintained by Florida Power & Light Company, were located on the City of Miami's right of way. In his deposition, Mr. Cohn testified that he had made repeated demands on both the City and Florida Power & Light to trim the trees prior to the date of the accident, August 11, 1976. It was Cohn's testimony that both appellees repeatedly neglected his demands to obviate the hazardous situation.

Pursuant to Mr. Cohn's instructions, Norris proceeded onto the City of Miami's property, climbing over a fence dividing the Cohn property from the right of way. As Norris inspected the trees to be cut, he observed Florida Power & Light's overhead power lines. While severing one of the overhanging limbs from the tree trunks, Norris sustained an electric shock when one of the branches allegedly came into contact with a power line which Norris claims was camouflaged by foliage and tree growth.

Thereafter, appellant filed his complaint for damages against both Florida Power & Light and the City of Miami. As to the City, the following allegations of negligence were pled:

"9. At the abovementioned time and place the defendant, CITY OF MIAMI, was negligent in the following particulars:

"a) In creating and permitting to exist a dangerous and hazardous condition on its property, to wit: large trees growing up into the area of the aforesaid electrical power lines with the limbs of such trees overhanging the adjoining private property.

"b) In failing to take any steps whatsoever to correct the said hazardous condition when it knew or should have known through the exercise of reasonable care that such condition constituted an extreme danger of electrical shock to anyone in the vicinity.

"c) In failing to take any steps to correct the said condition after the abutting land owner had made repeated demands upon the defendant to do so prior to August 11, 1976.

"d) In failing to properly and adequately inspect its property to determine the existence of the said dangerous and hazardous condition."

As to Florida Power & Light, appellant alleged the following:

"1. At the abovementioned time and place the defendant, FLORIDA POWER AND LIGHT COMPANY, INC., was negligent in the following particulars:

"a) In creating and permitting to exist a highly dangerous condition, to wit: electrical power lines running through and in such close proximity to large trees that same constituted a hazard to anyone in the vicinity.

"b) In failing to take any steps whatsoever to correct the said hazardous condition when it knew or should have known through the exercise of reasonable care that such condition constituted an extreme danger of electrical shock to anyone in the vicinity.

"c) In failing to take any steps to correct the said condition after the abutting land owner had made repeated demands upon the defendant to do so prior to August 11, 1976.

"d) In failing to properly and adequately inspect its electrical power lines to determine the existence of the said dangerous condition."

Appellees answered the complaint by denying negligence and alleged affirmative defenses. After discovery was completed, motions for summary judgment were filed by appellees. Those motions were granted and judgments were entered in favor of appellees giving rise to this consolidated appeal.

After a careful review of the record we are of the opinion that summary final judgment was proper as to the City of Miami. Section 59-2 of the Miami City Code (in force at the time of the accident) provides as follows:

"Sec. 59-2. Permits-Required-To prune, plant or remove from public land.

"It shall be unlawful for any person to trim or prune any tree, shrub or plant or to remove any tree, shrub or plant from any dedicated street, alley, highway, public right of way or easement, public land lying between property lines on either side of a public street, highway, alley, public parking strip, public street, sidewalk or divider, public median strip or planting strip or other land or public place owned by the city without first applying for and obtaining a permit from the director of public works or his authorized representative, with the approval of the city manager."

Neither appellant nor his employers (the Cohns) sought or was issued a permit to cut the trees located on the City of Miami right of way. The record affirmatively demonstrates that appellant realized that a permit was necessary to cut trees on City of Miami property. Further, it appears that appellant was familiar with the procedure of the City in issuing its permit, i. e., first the City would inspect the tree to be trimmed in order to determine whether or not such trimming could be completed without damage to the tree itself and second, if upon examination, the City's inspector discovered Florida Power & Light's powerlines dangerously near the branches to be cut, he would contact the power company to either de-energize the wires or have the power company cut the limbs off the tree. There does appear to be some doubt as to whether or not appellant was cognizant of the fact that the trees were located on City of Miami property; however, the record does reveal that appellant realized that the trees to be cut were on property other than the Cohns'.

Thus, by appellant's failure to receive permission of the landowner (City of Miami) to enter upon the property and cut the trees (via a permit) and his awareness of the fact that the trees were not located on the Cohn property, appellant was clearly a trespasser as to the City of Miami. See Roberts v....