Simon v. Tampa Elec. Co.

• Citation: 202 So.2d 209
• Decision Date: 06 September 1967
• Docket Number: No. 67--237,67--237
• Parties: Lorenzo Q. SIMON, as natural mother of Louis L. Calvo, minor deceased child, Appellant, v. TAMPA ELECTRIC COMPANY, a Florida corporation, Raul Bertran and Armonia Bertran, Appellees.
• Court: Court of Appeal of Florida (US)

Page 209

202 So.2d 209

Lorenzo Q. SIMON, as natural mother of Louis L. Calvo, minor deceased child, Appellant, v. TAMPA ELECTRIC COMPANY, a Florida corporation, Raul Bertran and Armonia Bertran, Appellees.

No. 67--237.

District Court of Appeal of Florida, Second District.

Sept. 6, 1967.

Rehearing Denied Oct. 2, 1967.

Paul C. Huck, of Frates, Fay, Floyd & Pearson, Miami, and Joseph Garcia, Tampa, for appellant.

Lucius M. Dyal, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee Tampa Electric Co.

John Bush, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees Raul and Armonia Bertran.

ALLEN, Acting Chief Judge.

Appellant, plaintiff below, has appealed a final order dismissing her complaint for failure to state a cause of action.

On the 30th day of September, 1965, plaintiff's decedent, pursuant to his employment with Pic's T.V. of Tampa, came upon the premises of Raul and Armonia Bertran to install a TV antenna.

The Bertrans, as purchasers of the antenna, requested that it be erected in the rear of their home. In compliance with the request, the decedent and a fellow employee went to the designated area and proceeded with the installation. While the decedent was standing on the ground holding the antenna to place it in position, the top portion of the antenna came into contact with an energized electrical wire, maintained by appellee Tampa Electric Company, causing fatal injuries to decedent.

The sole question involved on this appeal is whether the complaint, as amended, states a cause of action against the appellees.

We note, as the Supreme Court stated in Connolly v. Sebeco, Inc., Fla.1956, 89 So.2d 482, that:

'The purpose of a complaint is to advise the Court and the defendant of the nature of a cause of action Asserted by the plaintiff. The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts Alleged to State a cause of action. For the purpose of passing upon a motion to dismiss the Court must assume all facts alleged in the complaint to be true. Consequently a motion to dismiss a complaint must be decided on questions of law and questions of law only.'

In Russell v. Community Blood Bank, Inc., Fla.App.1966, 185 So.2d 749, Judge Shannon, speaking for this court, said,

'* * * a defendant moving to dismiss a complaint is deemed, for the purpose of ruling on the motion, to have admitted all facts well pleaded in the complaint, as well as all reasonable inferences arising from those facts. * * *'

Assuming all facts alleged in appellant's amended complaint to be true as well as all reasonable inferences arising therefrom, we cannot, as a matter of law, say that the complaint did not state a cause of action against appellee Tampa Electric Company. We feel, however, that based upon our decision in Quinnelly v. Southern Maid Syrup Company, Fla.App.1964, 164 So.2d 240, the motion to dismiss must be affirmed as to the appellees Raul and Armonia Bertran.

The annotation in 69 A.L.R.2d 9, 15, (1960) states:

'While those engaged in generating and distributing electricity are held to a high degree of care for the protection of persons liable to come into contact with this dangerous and subtle force, it is well established that the liability of electric light and power companies for damages for personal injuries is governed, * * * as in the case of personal injuries generally, by the simple rules of negligence.

'An electric power company is clearly liable in damages for an injury proximately resulting from its failure to exercise the proper degree of care, to one to whom it owes the duty of such care. * * *'

The status of the law in this jurisdiction is expressed in the above annotation. In essence we adhered to the position there taken in the case of Ahearn v. Florida Power and Light Company, Fla.App.1961, 129 So.2d 457, at page 461, wherein Judge Kanner, speaking for the court, said:

'The generation and distribution of electrical energy is highly dangerous to life and property. Electricity, the basic commodity of a power company, coursing invisibly through the quiet of uninsulated high tension wires, of itself sounds no warning as to its lethal nature. So it is, those who operate such a facility have the obligation to exercise care and vigilance in proportion to the peril involved.'

Further in the Ahearn case, the opinion discusses two New York cases (pp. 462 and 463) as follows:

'In the Pike v. Consolidated Edison Co. case (303 N.Y. 1, 99 N.E.2d 885, 886) plaintiff's decedent, employed as a steel worker by a construction company, was on a truck manually controlling a cable attached to the boom of a nearby crane and was electrocuted when the cable in his hands made contact with the defendant's high tension wires. The court of appeal held that the electric power company maintaining wires 34 feet above the ground knew that a building 19 feet and 11 inches tall was to be erected in the vicinity of the wires and held that the company was not entitled to actual notice of the time when the 80 foot crane would be operating there but was bound to ascertain when it was to be used so as 'to protect workmen against the danger that was there hidden in its high tension wires--or so a jury could find * * *.' It was pointed out that the electric company, long before the accident, had received for its own use copies of officially approved plans for the construction in progress. The court, stating that under the evidence the use of an 80 foot boom on the occasion in question was not at all extraordinary, held that the company was not unaware of the common use of cranes and booms in the erection of buildings.

'In the Bennett case, (Bennett v. New York & Queens Electric Light & Power Co., 1945, 294 N.Y. 334, 62 N.W.2d 219, 220) the court reversed judgment for the defendant. Plaintiff's decedent was electrocuted when, in the course of excavation upon a sewer project, the boom of a crane moved close enough to a high voltage wire of the defendant to produce a short circuit. The boom of the crane was 40 feet long and the high tension wires were located 34 feet from the ground. The court held that a jury question was presented as to whether the decedent met his death by reason of defendant's failure to take those precautions dictated by the danger to which he was exposed, defendant having knowledge of conditions under which the work was being done. Said the court, 'We cannot say as a matter of law, as has the Appellate Division, that upon the evidence of record before us the defendant was free from actionable fault. The standard of care required of one maintaining a dangerous agency must be commensurate with the risk therefrom reasonably to be foreseen. In the present case the vigilance required of the defendant depended upon the likelihood of danger to which those near its wires would be exposed by reason of the voltage of electricity which those wires carried. That voltage proved to be a death-bearing current which required of the defendant protective measures which, in existing circumstances, were proportioned to the danger which its transmission created.''

It is a general rule of law that the negligence of an electric power company cannot be regarded as the proximate cause of an injury within the law of negligence unless, under all the circumstances, the injury might have been reasonably foreseen by a person of ordinary intelligence and prudence.

This rule was followed in Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P.2d 702 (1959), when the appellate court reversed an action which sustained the defendant's demurrer to the plaintiff's evidence. The action was brought to recover for injuries received by the plaintiff when the arms of a TV antenna, which was being turned, came in contact with or close proximity to the defendant's wire.

The court...