Smith v. Florida Power and Light Co., 2D02-1883.

• Decision Date: 22 August 2003
• Docket Number: No. 2D02-1883.,2D02-1883.
• Parties: Michael SMITH, Appellant, v. FLORIDA POWER & LIGHT CO., and FPL Group, Inc., Appellees.
• Court: Florida District Court of Appeals

857 So.2d 224

Michael SMITH, Appellant, v. FLORIDA POWER & LIGHT CO., and FPL Group, Inc., Appellees.

No. 2D02-1883.

District Court of Appeal of Florida, Second District.

August 22, 2003.

Rehearing Denied October 22, 2003.

Theodore C. Eastmoore and Alan W. Roddy of Matthews, Eastmoore, Hardy, Crauwels & Garcia, P.A., Sarasota, for Appellant.

Robert E. Boan of Florida Power & Light Co., Miami, and Ralph O. Anderson, Mark Hicks and Gary A. Magnarini of Hicks, Anderson & Kneale, P.A., Miami, for Appellee Florida Power & Light Co. No Appearance for Appellee FPL Group, Inc.

CANADY, Judge.

Michael Smith appeals the entry of a final summary judgment in favor of Florida Power & Light Co. (FPL) on a negligence claim against FPL by Smith. Because we conclude that the facts of the case presented by Smith do not establish the basis for imposing a legal duty on FPL to protect Smith from the injury he suffered, we affirm the final summary judgment in favor of FPL.

I. FACTS OF THE CASE

Smith's claim against FPL arose from injuries occasioned by an electrical shock he received at a construction site when power passed from an uninsulated overhead power transmission line through the boom of a crane while Smith was working below ground and touching the cable of the crane. Smith was working on the construction site as an employee of a general contractor which had entered into a contract with a municipality to install a culvert/drainage system under certain public streets within the municipality.

Prior to entering into the contract, the contractor participated in a prebid meeting attended by other prospective bidders and by an employee of FPL, who had previously—at the request of the municipality— identified the location of FPL's poles and overhead and underground lines in the area of the project. At the prebid meeting, the subject of FPL's overhead lines was discussed and the municipality took the position that the prospective bidders should include the cost of rerouting those lines if the bidder determined that they could not work around the lines. There was deposition testimony that FPL's representative stated that FPL would charge as much as $20,000 to relocate the power lines at the construction site.

The winning bidder, Smith's employer, determined that its employees could safely work around the overhead lines and, therefore, decided not to pay for the relocation of those lines. The contractor's representative testified that "we felt like we could do the job without having to encroach within ten feet," although "we did want FPL to take the lines down too." Applicable safety requirements called for maintaining a minimum clearance of ten feet between the overhead lines and any equipment that might be used around those lines. See 29 C.F.R. § 1910.333(c)(3)(iii)(A) (setting forth federal Occupational Safety and Health Act regulation requiring that "[a]ny vehicle or mechanical equipment capable of having parts of its structure elevated near energized overhead lines shall be operated so that a clearance of 10 ft. (305 cm) is maintained").

Subsequent to the award of the contract, a preconstruction meeting was held to discuss various issues, including the potential impact of the project on existing utilities. At this meeting, a representative of FPL once again identified its power lines in the area of the project. The minutes of the meeting reflect that the contractor "does not anticipate any difficulty regarding clearance from the overhead lines and they will hand excavate in the vicinity of the underground lines." The FPL representative who attended the preconstruction meeting testified in deposition that he had no knowledge concerning the "methodology of construction that the contractor planned to use," that he had no understanding regarding "how closely the construction company was going to be working to" the power lines at the project site, and that he had no knowledge that cranes were to be used in the project. The FPL representative further testified: "The lines are visible. The lines were shown on the construction drawings. There was no contact between myself or the contractor indicating that there was any problem with clearances." Smith submitted no evidence contradicting the testimony of the FPL representative.

The evidence before the trial court was also uncontroverted that FPL's uninsulated overhead power lines at the project site complied with all applicable safety codes, rules, and ordinances regarding construction, location, and height. The lines were clearly visible and in plain view of the workers at the site, including the crane operator. There was testimony that the workers were aware the lines were energized, but Smith testified that he believed the power lines were not energized. Moreover, those responsible for the operation of the crane knew that a minimum ten-foot clearance from the energized lines had to be maintained. The operator of the crane himself testified that the crane bore placards regarding the ten-foot clearance requirement.

On the date of the accident causing Smith's injuries, the crane was being used to lift and set box culverts in a trench and to move the "tugger"—a piece of equipment used to pull the box culverts together in the trench. Smith was underground in one of the culverts assisting in the placement of the tugger. Smith's last memory before suffering his injury was of holding the crane cable. As the operator of the crane attempted to move the tugger, the cable coming from the top of the crane's boom came too close to the energized power lines overhead. As a result, current from the lines flowed through the cable into Mr. Smith, causing him devastating injuries.

There was testimony that FPL vehicles visited or passed by the construction site during the construction project. An employee of the contractor testified that on one occasion an FPL vehicle came by the construction site at a time when the crane was present. According to his testimony, however, there was no work being done "in close proximity to the overhead power lines" and the boom of the crane was pointed away from the lines when the FPL vehicle was present.

In opposition to FPL's motion for summary judgment, Smith filed the affidavit of an electrical engineer expressing the opinion that "FPL could have avoided this accident" in at least three different ways: 1) by placing reusable sleeves or insulators on the power lines; 2) by opening switches on the power poles immediately adjacent to the project site; or 3) by switching power from the "outer line nearest the crane" to the middle line located on the power poles at the site. In addition, Smith presented evidence that FPL on occasion used rubber "eels" to protect FPL employees and others working in the vicinity of FPL's power lines.

Smith's complaint against FPL alleged that FPL owed Smith a duty to ensure that: "a. electricity did not flow from and/or through the power lines, b. the power lines were shielded, c. the power lines were properly secured, d. the flow of electricity was rerouted, e. the power lines were safe, and/or f. appropriate actions were taken regarding the power lines." FPL moved for summary judgment and argued that "there is no recognized duty which has been breached by [FPL], and that FPL's allegedly negligent conduct was not the proximate cause of the harm suffered by Smith." After conducting a hearing and considering the affidavit and deposition testimony filed by the parties, the trial court determined that there was no "genuine issue of material fact ... on the duty issue, given the apparently conceded fact that nobody involved needed Florida Power & Light to do anything."

II. STANDARD OF REVIEW

A final order granting a motion for summary judgment is subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). "When reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party." Garden St. Iron & Metal, Inc. v. Tanner, 789 So.2d 1148, 1149 (Fla. 2d DCA 2001). In a negligence case, the de novo review of a summary judgment is guided by the principle that "[s]ummary judgments should be cautiously granted." Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985). Summary judgment is only appropriate if the moving party has met the burden of conclusively proving the nonexistence of "genuine triable issues." Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966).

III. ANALYSIS

A. The Framework for Establishing a Legal Duty

The starting point for our analysis of this case is the decision of the Florida Supreme Court in McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992), where the court provided a "restatement of the law of negligence," Whitt v. Silverman, 788 So.2d 210, 218 (Fla.2001), in the context of a case involving the issue of power company liability for injuries sustained from contact with an underground power cable. McCain is particularly pertinent here both because of the general principles it articulates concerning the duty element in tort actions and because of the fact pattern present in the case. Those general principles govern our analysis of the dispositive issue, while the facts of McCain stand in contrast to the facts of this case. Central to McCain's treatment of duty is the concept of "zone of risk"—a concept earlier articulated by the supreme court in Stevens v. Jefferson, 436 So.2d 33 (Fla.1983), and Kaisner v. Kolb, 543 So.2d 732 (Fla.1989). Under the framework set forth by the supreme court, the zone of risk created by a defendant defines the scope of the defendant's legal duty and the scope of the zone of risk is in turn determined by the foreseeability of a risk of harm to others. "The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader `zone of risk' that poses a general threat of harm to others. See Kaisner, 543 So.2d at 735 (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983))." M...