Rice v. Florida Power & Light Co.

• Decision Date: 03 October 1978
• Docket Number: No. 77-1676,77-1676
• Citation: 363 So.2d 834
• Parties: Arleen S. RICE, Personal Representative of the Estate of Brian Rice, Deceased, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, and University of Miami, a Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 834

363 So.2d 834

Arleen S. RICE, Personal Representative of the Estate of Brian Rice, Deceased, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, and University of Miami, a Florida Corporation, Appellees.

No. 77-1676.

District Court of Appeal of Florida, Third District.

Oct. 3, 1978.

Rehearing Denied Nov. 15, 1978.

James B. Denman & Associates, Ft. Lauderdale, for appellant.

Greenberg, Traurig, Hoffman, Lipoff & Quentel, Daniels & Hicks and Sam Daniels, Preddy, Kutner & Hardy, Miami, and Robert J. Bogdanoff, for appellees.

Before PEARSON, BARKDULL and KEHOE, JJ.

KEHOE, Judge.

By this appeal, Arleen Rice, plaintiff below, contends the trial court erred in granting summary final judgments in favor of appellees, University of Miami (U.M.) and Florida Power & Light Company (FPL), two of multiple defendants in a wrongful death action predicated on negligence. We disagree and affirm the judgments of the trial court.

Brian Rice, appellant's decedent, was a twenty-eight year old geology student at the University of Miami who was electrocuted in an accident which occurred on November 22, 1975. He and his friend, Richard Eisenberg, also a student at the university, had decided to fly a model airplane over an open field owned and maintained by the University of Miami, which was frequently used as a general recreation area.

Although the field had large open spaces away from power lines, the two men took the plane and its accouterments to a place in the field just north of three uninsulated power lines which traversed the field overhead, and set about preparing the model for flight. Mr. Eisenberg's girlfriend, Rebecca Columbus, accompanied by Rice's three year old son, arrived shortly after Rice and Eisenberg. The two men worked for about an hour at their pre-flight preparations. Then, while Eisenberg held the plane, Rice worked the controls, and activated the model. It was controlled from the ground by two fifty foot metal wires which ran from a control handle to one wing. The plane took off and flew less than half a circle before hitting the power lines. Rice dropped to the ground and died.

When the accident occurred, both Mr. Eisenberg and Ms. Columbus were present. Their deposition testimony indicated that the day was clear and sunny and that, while neither noticed the overhead power lines prior to the accident, the wires were clearly visible once one looked up a them. Appellant, however, contends there existed an illusory spacial perception of the overhead wires as they related to lines running along the edge of the field. Prior to the flight, neither Mr. Eisenberg nor the deceased looked up to see whether or not there were any overhead power lines.

The three lines which traversed the filed were a 120 volt multiple street light conductor, a neutral wire, and a 7,620 volt primary conductor. At the place where the accident occurred, these lines were, respectively 18k feet, 20k feet, and 27k feet above ground. The elevation of the primary conductor was nearly twice the 15 foot clearance requirement specified in the National Electrical Safety Code, the industry "Bible." Yellow paint from the plane was found on the 7,620 volt line, and a portion of the plane's metal control wire had burned off near the wing.

The deposition of Mr. Eisenberg indicates that the control handle which Brian Rice had assembled and was holding had a warning sticker on it which read:

"Danger of electrocution. Do not fly model airplane near electrical power lines."

Brian Rice knew of the potential dangers of electricity, was an "A" student, and had worked part time flying into hurricanes to record meteorological data.

In 1976, Rice's widow filed suit pursuant to the Florida Wrongful Death Act against the University of Miami, the Florida Power and Light Company, and other defendants not affected by this appeal. ¹ In 1977, after a hearing on U.M. and FPL's separate motions, the trial court executed two orders granting summary final judgment in favor of both appellees. These orders are the subject of this appeal.

We deal first with the judgment in favor of FPL. It is fundamental that unless the defendant was able to show that, as a matter of law, there was no negligence on its part, or that decedent's negligence was the sole proximate cause of the injury, summary judgment would be inappropriate. Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977); Fla.R.Civ.P. 1.510(c). We direct our attention to the first proposition: Was FPL able to show conclusively that it breached no duty owed to decedent?

The power lines were installed initially in 1955 under permits and franchises granted by the city of Coral Gables, and were located in an easement granted to FPL. Uncontradicted evidence shows that the lines were placed in accordance with acceptable engineering practice to serve the existing and anticipated needs of the community.

Appellant contends that a change in the use of the underlying property from the time the lines were installed to the time of the accident, from one of expanding residential growth to one serving primarily recreational purposes, coupled with a change in the service provided by the uninsulated distribution wires, created genuine issues of material fact as to whether FPL should have re-located the lines, insulated them, elevated them still higher, or warned users of hazards. ²

The field has been used in recent years for general recreational purposes by students of the university and nearby residents. Affidavits in opposition to defendants' motions for summary judgment indicate that a model airplane attached to a hand control instrument has been flown over the field at least once prior to the accident, but nothing in the record shows that FPL had any actual notice of that fact. (Indeed, the accident appears to be the first in FPL's history in which an injury resulted from flying a model airplane into a power line.) Affidavits also indicate that kites, and model planes, with or without hand controls, had been flown over the field. Again, there is no indication that FPL had notice of this.

An electric company "is under an obligation to 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," but it is not an insurer against all possible accidents. Escambia County Electric Light & Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83, 91 (1911). Accord, Florida Power Corporation v. Willis, 112 So.2d 15 (Fla.1st DCA 1959).

As noted by the Supreme Court of Florida long ago:

"(E)ven where the highest degree of care is demanded, . . . the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight. . . . '(I)f men went about to guard themselves against every risk . . . which might . . . be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.' "

Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 332 (1925).

The fact that the high voltage lines exceeded the clearance specifications of the National Electrical Safety Code is not conclusive of the absence of negligence. Florida Power Corporation v. Willis, supra. But the mere maintenance of uninsulated overhead power lines above land which the power company has the right to use is not, in itself, a negligent act. Reardon v. Florida West Coast Power Corp., 97 Fla. 314, 120 So. 842 (1929). A manufacture of electricity is neither required to insulate wires wherever they are strung nor to maintain useless warning signs, Richmond v. Florida Power & Light Company, 58 So.2d 687 (Fla.1952), for the propriety of the use of exposed wires depends on their location. Hardware Mutual Casualty Company v. Tampa Electric Company, 60 So.2d 179 (Fla.1952).

Therefore the key to a determination of whether the trial court was correct in rendering summary judgment in favor of FPL is whether or not it would be reasonable to conclude that the changed use of the land underlying the uninsulated, but clearly visible, power lines, was such a circumstances as would impose upon the utility company a continuing duty to foresee and protect against the type of injury herein at issue, in the absence of actual notice.

Prior decisions in the area are not necessarily dispositive of...