Tennessee Corp. v. Lamb Bros. Const. Co., s. 71--312

• Decision Date: 02 August 1972
• Docket Number: 71--331 and 71--378,Nos. 71--312,s. 71--312
• Citation: 265 So.2d 533
• Parties: TENNESSEE CORPORATION and Hartford Accident and Indemnity Company, Appellants, v. LAMB BROTHERS CONSTRUCTION COMPANY, Inc., a Florida corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 533

265 So.2d 533

TENNESSEE CORPORATION and Hartford Accident and Indemnity Company, Appellants, v. LAMB BROTHERS CONSTRUCTION COMPANY, Inc., a Florida corporation, et al., Appellees.

Nos. 71--312, 71--331 and 71--378.

District Court of Appeal of Florida, Second District.

Aug. 2, 1972.

Calvin A. Pope of Pope & Burton, Tampa, for Hartford Accident and Indemnity Co.

Thomas L. Clarke, Jr., of Langston & Massey, Lakeland, for Tennessee Corp.

Wallace L. Storey, Bartow, for Lamb Brothers Constr. Co., Inc.

McNULTY, Judge.

These consolidated cases involve a negligence action brought by appellant Tennessee Corporation against Lamb Brothers Construction Company, and the latter's third party action for possible indemnification and for suit monies over against its own liability carrier, Hartford Accident and Indemnity Company, which had disclaimed coverage. After a non-jury trial judgment was entered in favor of defendant Lamb Brothers as against Tennessee Corporation on the negligence aspect of the case, and further in favor of Lamb Brothers for expenses, attorneys' fees and costs against Hartford for its failure to defend on behalf of Lamb Brothers.

Considering the negligence aspect of the case first, the relevant undisputed facts are these: Tennessee Corporation owned and operated an anhydrous (ammonia) plant in Tampa. Florida Gas Company, a supplier of natural gas, furnished gas to be used both as fuel for Tennessee's manufacturing operation and for raw materials used in the finished product. The natural gas supplied by Florida Gas originated in south Texas and was transmitted across the Gulf of Mexico and several states to Florida. Thence, via a pipeline, it was carried through several Florida counties, one of which was Suwannee County wherein the accident involved herein occurred. The pipeline terminated in Tampa where the gas was distributed to the various Tampa customers of Florida Gas, Tennessee Corporation being among them. Coincidentally, Florida Gas and Tennessee Corporation had agreed by written contract that in the event of any shortage in the natural gas supply available for distribution by Florida Gas then Tennessee Corporation would be considered a low priority customer, and service and delivery to Tennessee would be discontinued prior to discontinuance of service to many other customers of Florida Gas.

Lamb Brothers, meanwhile, was a land clearing company; and at the time of the accident herein it was engaged in a land clearing operation in Suwannee County in close proximity to the natural gas pipeline referred to above and which supplied Florida Gas. A terrific explosion occurred, resulting in the eruption of some 800 feet of the pipeline and also, of course, interruption in the flow of gas to Florida Gas. Ultimately, Florida Gas was unable to supply Tennessee and pursuant to their contract aforesaid terminated service. Tennessee was forced to close down its plant, thereby suffering consequential loss of business and profits for which it seeks recovery in this suit.

It is alleged, and the evidence tended to show, that the explosion was caused by the negligent operation of a bulldozer owned by Lamb Brothers and operated by one of its employees in the land clearing operation aforesaid. No one witnessed the explosion, save perhaps the bulldozer operator who was found dead lying behind the bulldozer, but circumstantial evidence otherwise supported Tennessee's version of events. In any case, the trial judge found it unnecessary to expressly determine the question of negligence. He found as the trier of fact, however, that Assuming negligence, such negligence was not the proximate cause of Tennessee's damages. We cannot say, as a matter of law, that he could not so find.

To constitute actionable and proximate causation in a negligence action there must be such a Direct, and Continuous sequence of events flowing between the negligent act and the injury complained of that it can reasonably be said that the result was a natural and probable consequence of the act. ¹ Stating the rule, our Supreme Court said in Cone v. Inter County Telphone and Telegraph Co. ² that:

'. . . when the loss is not a Direct result of the negligent act complained of, or does not follow in Natural ordinary sequence from such act but is merely a possible, as distinguished from a natural and probable, result of the negligence, recovery will not be allowed. . . . 'Natural and probable' consequences are those which a person by prudent human foresight can be expected to anticipate as likely to result from an act, because they happen so frequently from the commission of such act that in the field of human experience they may be expected to happen again.' (Italics supplied)

Certainly, a trier of fact could have found here that the damages complained of were too indirect, were not in continuous natural sequence and were therefore not reasonably 'foreseeable' by a person of prudent human foresight. Given these conclusions, then, they would to too remote under Florida law. ³ Put another way, if we are to upset the trial judge's finding of remoteness, we would have to say as a matter of law, assuming the negligence, that not only was the explosion foreseeable as a result of the negligent operation of the bulldozer, and that the interruption of supply to Florida Gas was a natural and probable consequence thereof, all of the which would probably be so, but following this that it was also foreseeable that the explosion would unduly deplete the volume of a common supply of natural gas in the hands of Florida Gas, which would then result in the interruption of service to a low priority contract customer of Florida Gas (Tennessee) who, in turn, was a commercial user and who ultimately suffered consequential business loss. Furthermore, even though time and distance are certainly relevant factors to be evaluated in ascertaining foreseeability, we would have to conclusively visit such clairvoyance upon a bulldozer operator in Suwannee County when the damages complained of were suffered more than 100 miles away in Tampa. We cannot thus contradict the finding of remoteness and, at the same time, recognize the proper function of the trier of fact in evaluating the evidence with a view toward concluding therefrom whether the injuries complained of are the 'natural and probable consequences' spoken of in Cone, supra, which a person of 'prudent human foresight' would have been expected to anticipate as 'likely to result' because they happen so frequently that in the 'field of human experience' it should have been expected that they would happen again. ⁴

Notwithstanding, Tennessee has asked us to apply the 'but for' test in resolving the question as a matter of law to the contrary. However, we have not overlooked, and in fact concede, that that which occurred would not have occurred 'but for' the explosion. Indeed, it can be said in any case in which there are intervening or collateral factors which contribute to the ultimate result that 'but for' the first act the result would not have occurred. But that doesn't mean necessarily that the first act is the proximate cause. As an example otherwise, of course, if an intervening cause is an Independent, efficient means of producing the result the initial act is not the proximate cause even though 'but for' such act the intervening cause would not or could not have come into play. We think, therefore, that the 'but for' test is conceptually unsound as a solution in most of these cases, whether there is an intervening, independent efficient cause or not because the damages could flow either from such intervening cause, if one exists, or, as found here, be an indirect and non-sequential unforeseeable consequence. In neither case does the 'but for' test afford a viable solution.

Similarly, we reject the ...