Price v. Florida Power & Light Co., 3354

• Decision Date: 13 December 1963
• Docket Number: No. 3354,3354
• Citation: 159 So.2d 654
• Court: Florida District Court of Appeals
• Parties: Gerald W. PRICE, Appellant, v. FLORIDA POWER AND LIGHT CO., a Florida corporation, Appellee.

Page 654

159 So.2d 654

Gerald W. PRICE, Appellant, v. FLORIDA POWER AND LIGHT CO., a Florida corporation, Appellee.

No. 3354.

District Court of Appeal of Florida, Second District.

Dec. 13, 1963.

Rehearing Denied Jan. 29, 1964.

Michael K. Davis, of Watson, Hubert & Sousley, Fort Lauderdale, for appellant.

Norman C. Roettger, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee.

SMITH, Chief Judge.

This is an appeal from a final judgment in favor of the defendant, Florida Power and Light Company, and against the plaintiff, Gerald W. Price, entered after the court granted the defendant's motion to dismiss the first amended complaint for failure to state a cause of action.

Price alleged facts to the effect that he was an employee of Harlan Electric Company; that Harlan contracted with the defendant, Florida Power & Light Company, to construct and energize an electrical distribution system in a new subdivision by connection with the defendant's high voltage transmission system; and that all poles, lines, and electrical current were owned by the defendant, who placed them in the control of Harlan, its contractor. Price alleged that in the course of such project he was on a pole for the purpose of insulating an electrical wire which was strung from another pole 200 or 300 feet away and attached to the second pole by a standard insulated connection; that at the same time there were also attached to the second pole wires which were energized with high voltage electrical current; and that it was the plan of construction to energize the wire upon which plaintiff was working by connecting it to the existing energized wires on the second pole only when complete installation of all wires and apparatus necessary to a proper and safe electrical circuit were completed, but that while Price was working on pole No. 1, the same was not completed. It was alleged that while Price was so engaged, certain other employees of Harlan climbed to the top of pole No. 2 and proceeded to make preparations for attachment of the energized wire to the wire on which Price was working; that such other employees negligently allowed a jumper wire to touch or come so close as to cause an electrical arc across both wires, thereby energizing the wire on which Price was working and causing the injuries alleged. Price further alleged that the negligence of Harlan's other employees was concurrent with the negligence of Harlan and concurrent with the negligence of the defendant power company.

Price then alleged that Harlan and its employees were exercising control over the poles, wires and electrical current with the knowledge, permission, authorization and consent of the defendant power company; and that his injuries were directly and proximately caused by the negligence of the defendant power company, in that (1) the power company knew of the great danger inherent to work done on or around wires charged with high voltage electricity; (2) it knew that pole No. 2 carried wires so energized and that Harlan's employees would be upon said pole to attach the new wires and energize them with the energized wires existing on pole No. 2; and (3) it knew or should have known that any mistakes made in construction or energization would be likely to cause great peril to employees of Harlan near said new distribution system. It was further alleged that the defendant power company owed to plaintiff a duty to exercise a high degree of care to provide safe working conditions; and that such they was negligently breached, in that (1) the power company allowed and permitted Harlan's employees to go upon pole No. 2 to construct and energize the new distribution system without proper supervision and control by the defendant; (2) the defendant power company negligently failed to provide insulation of wires and to de-energize terminal points so that the terminal connections could be made without danger; and (3) the defendant negligently failed to de-energize the wires on pole No. 2 by means of switches in the distribution system, which would have allowed the work to be performed without danger. Finally, it was alleged that, although the defendant knew or should have known of the great possibility of harm that would be caused by any premature or improper energization of the new distribution system, and although the defendant knew or in the exercise of due care should have known of the circumstances of the construction alleged that made possible the premature and improper energization, the defendant negligently failed to exercise due care in providing safe working conditions for Price, and such negligence was the proximate cause of the injuries suffered by plaintiff.

Price contends that his amended complaint stated a cause of action under three theories of law; that is, the amended complaint alleges facts showing (1) negligence on the part of the defendant power company, (2) the defendant power company was vicariously liable for the negligence of Harlan and Harlan's other employees under the dangerous instrumentality doctrine, and (3) the defendant power company was liable for injuries caused by the negligence of the independent contractor Harlan and its other employees because the work being performed was inherently dangerous. Since the lower court's judgment must be reversed, we find it necessary to discuss each of these theories.

The plaintiff first contends on appeal that his amended complaint stated a cause of action because it alleged facts to the effect that the defendant negligently failed to perform its duty to supervise and control its contractor and to exercise due care in providing safe working conditions for the plaintiff. Plaintiff concedes that the general rule is that one who is having work done on his premises by an independent contractor is obligated only to use ordinary care to provide reasonably safe working conditions for the employees of the independent contractor. ¹ Plaintiff, however, relies upon an exception to such general rule, which exception is stated in Ahearn v. Florida Power and Light Company, Fla.App.1961, 129 So.2d 457, 461, as follows:

'* * *. [W]hile a power company is not required to become an insurer or to provide an absolutely safe place to work, it is under a definite requirement to exercise a high degree of care with reference to its invitees.

'* * *. [A]n employee of an independent contractor engaged in performing services pursuant to contract between his employer and a power company is that company's invitee; and this relationship, together with the hazardous work involved, results in a duty by the power company 'to exercise the highest degree of care possible, commensurate with the business engaged in.' Vanlandingham v. Florida Power & Light Co., 1944, 154 Fla. 628, 18 So.2d 678, 679. Further, the law requires of a power company the exercise of a high degree of care to provide safe working conditions for the employees of an independent contractor. What will constitute a discharge of that duty will depend upon the circumstances. Florida Power & Light Co. v. Robinson, Fla.1953, 68 So.2d 406. * * *'

This amended complaint does not allege facts to state a cause of action within the principles of law enumerated in Ahearn and other authority there cited. Such a cause of action must be stated by allegations: (1) that the power company had actual or constructive knowledge of the condition which caused the injury; (2) that the condition constituted a latent danger; and (3) that the plaintiff did not have actual or constructive notice of the danger. While the complaint here does allege facts to the effect that the power company had actual knowledge that the distribution line attached to pole No. 2 was energized and that the power company knew Harlan's employees would be upon said pole to attach the new wires to the energized system, there is no allegation to the effect that it knew this would be done prior to complete installation necessary to a safe electrical circuit. There are no allegations of fact showing that the plaintiff was without actual or constructive knowledge of the danger existing because of the work of his fellow employees on pole No. 2. The amended complaint alleges that the contract required energizing of the line, but there are no allegations of fact from which it may be concluded that the energizing of the line in the manner contemplated in the contract constituted a latent danger; to the contrary, the amended complaint alleges that the plan of construction was to make to new wires safe before energizing.

The plaintiff next contends that his amended complaint stated a cause of action because the defendant's electrical power is a dangerous instrumentality or agency, and the defendant was vicariously liable for the negligence of the defendant's contractor. By this point, the plaintiff in effect says that electrical energy is a 'dangerous instrumentality', and the owner who entrusts it to another should be liable for injury caused to third persons by the negligence of the person to whom it was entrusted, as was held with respect to automobiles operated on the public highways in Southern Cotton Oil Company v. Anderson, 1920, 80 Fla. 441, 86 So. 629. In presenting this point, plaintiff concedes at the outset that he and his negligent fellow employees are employed by Harlan Electric Company and not by the defendant, and that Harlan Electric Company was the independent contractor of the defendant. Plaintiff further concedes that in the ordinary case the employee of an independent contractor does not have a cause of action against an owner contracting with the independent contractor.

Beginning with the decision in the Southern Cotton Oil case, supra, the courts of Florida have consistently held that:

'The general rule applicable to dangerous agencies is that one who keeps in his possession, or employs in his business, that which unless carefully guarded and used, is dangerous to others, is bound to...