Padgett v. West Florida Elec. Co-op., Inc.

• Decision Date: 29 July 1982
• Docket Number: No. AI-12,AI-12
• Citation: 417 So.2d 764
• Parties: R. J. PADGETT, as Personal Representative of the Estate of Tommy Allen Padgett, Deceased, Appellant, v. WEST FLORIDA ELECTRIC COOPERATIVE, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 764

417 So.2d 764

R. J. PADGETT, as Personal Representative of the Estate of Tommy Allen Padgett, Deceased, Appellant, v. WEST FLORIDA ELECTRIC COOPERATIVE, INC., a Florida corporation, Appellee.

No. AI-12.

District Court of Appeal of Florida First District.

July 29, 1982.

Charles J. Kahn, Jr., of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellant.

Richard Smoak of Isler, Brown, Smoak, Harrison & Nabors, Panama City, for appellee.

ERVIN, Judge.

Tommy Padgett's act of hitting a utility pole and becoming enmeshed in electrical wires that electrocuted and burned him was an intervening cause of his death. There are inferences of material fact that suggest that the appellee and defendant below, West Florida Electric Cooperative, could have foreseen this intervening cause, thereby making it a question of fact whether acts of the appellee constituted the proximate cause of Tommy Padgett's death. Paradoxically, these same inferences of material fact preclude the lower court's summary judgment for the appellee. We reverse and remand.

Young Padgett was driving home in the dark of early morning in rural Washington County. He apparently failed to negotiate a curve to the left in the roadway, because a post-accident investigation indicated that his car left the road, traveling 200 feet down into a ditch, hitting a clump of bushes, and continuing on until hitting and severing from the ground a utility or telephone pole. The car traveled another 96 feet before stopping. Padgett left his car, ran 33 feet and came into contact with three downed electrical wires, which caused his death by electrocution. His father filed suit, charging that the power company's negligence in maintaining its power pole and electrical line safety equipment was the proximate cause of his son's death. Implicit in this contention is the argument that the appellee was also negligent in placing the power pole in the location where it had been placed.

In granting summary judgment for the appellee, an affidavit before the court reveals that, as to the placement of the pole, an experienced professional electrical engineer stated that the defendant had negligently placed the pole on the outside of the curve of the roadway. Other than this statement the exact location of the pole is unknown, although the appellee asserts that it was placed 45 feet from the pavement. ¹ Concerning the defendant's negligence as to the maintenance of the electrical wires, there is evidence to suggest that two of the wires came into contact with each other, thereby tripping a circuit breaker that de-energized them. Deposition testimony suggested that the circuit breakers were designed to operate within seconds of contact between two wires, but it is questionable whether this occurred, because there is evidence suggesting that the wires were fused together. A third wire was apparently still "live" and somehow suspended in mid-air. The engineer opined that the electric company not only had a duty to provide a reasonable safety system for downed power lines for the purpose of protecting the public, but that the power company had negligently breached its duty.

As a general rule, utilities have "a duty to exercise care, both in the location or construction and in the use and maintenance of its lines," poles, and equipment. Peninsular Telephone Co. v. Marks, 144 Fla. 652, 198 So. 330, 332 (1940); Gibson v. Garcia, 96 Cal.App.2d 681, 216 P.2d 119, 120 (1950). "Although those engaged in transmitting current for domestic use are not insurers ..., they are held to a high degree of care." Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911, 915 (1938) (emphasis in original; cites omitted). They must " 'do all that human care, vigilance, and foresight can reasonably do, consistent with the practical operation of its plant to protect those who use its electricity.' " Rice v. Florida Power & Light Co., 363 So.2d 834, 838 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979). ²

There is evidence in the record suggesting that the appellee could have breached its duty by negligently placing and maintaining the power pole, as well as by negligently operating the circuit breaker safety system. Whether this purported negligence was the proximate cause of Tommy Padgett's death is another matter, because a power company is not under "a continuing duty to protect against any and all activity, however unlikely ...." Rice, supra, at 839.

In essence the case at bar creates a classic case of intervening causation. "This presents the question whether the asserted negligence in the placement of the pole is to be considered as the proximate cause, or whether the operation or movement of the colliding vehicle may be said to be the real cause, the collision with the pole being merely incidental." Injury to Traveler From Collision With Privately Owned Pole Standing Within Boundaries of Highway, 3 A.L.R.2d 6, 56 (1949). Thus, liability is recognized by the courts as generally turning upon: (1) location of the pole, e.g., is it so close or dangerously positioned as to pose a hazard, and (2) maintenance of the pole, as well as the circuit breaker system. Id. at 9.

Whether any negligence has occurred in carrying out either of the two foregoing considerations, so as to sustain a recovery, turns on whether such negligence can be considered the proximate cause of the accident. In turn, whether the negligence was the proximate cause rests on questions as to whether an unreasonable risk of harm occurred and upon traditional tort concepts of foreseeability, ³ because "[f]oreseeability is the measuring stick by which proximate cause is determined." Bryant v. School Board of Duval County, 399 So.2d 417, 421 (Fla. 1st DCA 1981), aff'd. in part and rev'd in part sub nom., Rupp v. Bryant, 417 So.2d 658, (Fla., 1982).

The appellee argues that decedent's injuries were proximately caused by the extraordinary exigencies of his car going out of control and striking the power pole, and, because of such unusual circumstances, the resulting death must be deemed unforeseeable. The law is clear that for the maintenance and placement of the pole and/or the unsafe operation of the electrical transmission system to be the proximate cause of the death, the death must have stemmed in a natural and continuous sequence from the placement and maintenance of the pole, the electrical transmission system and safety equipment. Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 229 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961). Since the evidence reveals that Padgett in all probability lost control of his car in order to have hit the pole, his actions constitute an intervening cause. Cf. Bryant, supra, 399 So.2d at 421; Gibson v. Garcia, supra, 216 P.2d at 121. Notwithstanding the fact that such actions are considered an intervening cause, if they were reasonably foreseeable the defendant's acts of maintaining and placing the pole and operation of the circuit breaker safety system may still be deemed to be a proximate cause of Padgett's death. Id.

The crux of the appellee's argument is that it was an extraordinary occurrence for the decedent's car to have gone out of control and traveled such a great distance, ending in Padgett's death. However, the method and extent of the injury is irrelevant, if the power company could have reasonably foreseen the occurrence of the injuries. Braden v. Florida Power and Light Co., 413 So.2d 1291, 1292 (Fla. 5th DCA 1982); Crislip v. Holland, 401 So.2d 1115, 1117 (Fla. 4th DCA 1981); Broome v. Budget Rent-A-Car of Jax., Inc., 182 So.2d 26, 29 (Fla. 1st DCA 1966). In other words, whether an intervening cause is reasonably foreseeable is dependent on whether the harm that occurred is within the scope of danger or risk attributable to the power company. Bryant, supra, 399 So.2d at 421.

We have observed in another case that there are at least three different ways in which the harm that has occurred may be determined to be within the scope of danger:

First, the legislature may specify the type of harm ... Second, if the same type of harm has occurred previously due to the same type of negligent conduct, and the tortfeasor has actual knowledge of this, liability can be established .... Third, liability can be made out if the negligence complained of has resulted in harm so frequently "in the field of human experience" that harm may be expected to happen again.

Bryant, supra, 399 So.2d at 421 (cites omitted); see also Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522-523 (F...