Wallent v. Florida Power Corp.

Decision Date13 August 2003
Docket NumberNo. 2D01-4336.,2D01-4336.
Citation852 So.2d 339
PartiesJoseph WALLENT, Appellant, v. FLORIDA POWER CORPORATION; Dunedin Electric Co., Inc.; and Serendipity Mobile Homeowners, Inc., Appellees.
CourtFlorida District Court of Appeals

Hendrik Uiterwyk of Abrahamson & Uiterwyk, Tampa; and Ralph O. Anderson and Gary A. Magnarini of Hicks, Anderson & Kneale, P.A., Miami, for Appellant.

Richard J. McCrory, St. Petersburg; and Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa, for Appellee Florida Power Corporation.

No appearance for Appellees Dunedin Electric Co., Inc., and Serendipity Mobile Homeowners, Inc.

ALTENBERND, Chief Judge.

Joseph Wallent appeals a judgment entered in his favor in a personal injury action against Florida Power Corporation. Mr. Wallent argues that he was entitled to a directed verdict on the issue of comparative negligence and that the jury was required to return a larger award for future medical expenses. After a full review of the record, we reject his second argument. However, we find merit in his claim that the trial court improperly submitted the issue of comparative negligence to the jury. We reverse the judgment and require entry of judgment on the verdict without a reduction for comparative negligence.

Mr. Wallent sued both Florida Power and Serendipity Mobile Homeowners, Inc. (Serendipity), the owner of a mobile home park, for injuries he sustained when electric wires in an outdoor main circuit breaker box shorted as he was attempting to open the door to the box. He was opening the box to reset the main circuit breaker in order to restore power to his friend's mobile home. He maintained that the accident happened as a result of a bad splice in the power line inside the circuit breaker box. He claimed that either one or both defendants were responsible for the defective splice.

Florida Power raised the defense of comparative negligence. At the close of the case, the trial court reserved ruling on Mr. Wallent's motion for a directed verdict on this issue. The jury found in favor of Serendipity. It found against Florida Power, which, as an electrical utility, had the highest duty of care commensurate with the circumstances. See Fla. Power & Light Co. v. Brinson, 67 So.2d 407, 410-11 (Fla.1953); Fla. Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911, 915 (1938). The jury awarded total damages of $80,466.60, including $18,399.00 for future medical expenses to cover a six-year period. However, the jury found that Mr. Wallent was ninety percent comparatively negligent. Ultimately, after denying posttrial motions, the trial court entered judgment against Florida Power on this verdict for a total award to Mr. Wallent of approximately $8,000.00.

At trial, Florida Power presented no witnesses during its case and introduced only a few photographs of the electrical circuitry and mobile home. To establish comparative negligence, it relied primarily on cross-examination. Florida Power argued that Mr. Wallent was negligent either because he had pulled too hard on the box when he attempted to open it or because he was elderly and inexperienced and should not have opened the door to a standard circuit breaker box in order to flip the switch on the circuit breaker. It is noteworthy that the expert hired by Serendipity admitted that Mr. Wallent had not done anything improper and that the electrical short could have been caused by a very slight movement of the pedestal. Florida Power bore the burden of proof on this affirmative defense, see Hough v. Menses, 95 So.2d 410 (Fla.1957), and we conclude that it failed in that proof.

The evidence that relates to the issue of comparative negligence can be explained in greater detail as follows: In December 1997, Mr. Wallent was seventy-nine years old and lived in a rented mobile home in the Serendipity Mobile Home Park in Clearwater, Florida. His good friend, Johanna Downs, lived in another rented mobile home a few blocks away in the same park. On December 30, the night before the incident, Mr. Wallent and Ms. Downs were watching television in her mobile home at approximately 8 p.m. when the power went out.

Mr. Wallent and Ms. Downs did not know how to restore power to the mobile home, so Ms. Downs called Florida Power Corporation. Ms. Downs testified that a representative of Florida Power told her to check the main circuit breaker inside the mobile home. They checked this breaker, but it had not tripped and was still in the on position. Ms. Downs reported this information to the Florida Power representative, who suggested that Ms. Downs go outside and check the main circuit breaker. Ms. Downs explained that she was elderly and asked for help. Although Florida Power was not contractually obligated to send someone to reset the outside circuit breaker,1 the representative made arrangements for someone to go to the mobile home.

A few minutes later, a Florida Power employee arrived in a truck. He went to a "pedestal" outside the mobile home. The pedestal was described as a grounded rectangular metal box with an interior that is divided in half from front to back. One half, the "supply side," was closed and protected and, as its name implies, received electrical supply from Florida Power through insulated underground wires. The other half of the pedestal, the "load side," contained an electrical meter above the main electrical circuit breaker for each mobile home. The main circuit breaker on the load side was accessible by an unlocked small metal door that opened upward. The door featured a small metal catch at the bottom that allowed the door to stay closed when not locked. Once the door was opened, this side of the cabinet contained a typical switch to control a main circuit breaker. The Florida Power employee opened this door and restored power to the mobile home. Mr. Wallent was unable to see what the Florida Power employee did to the circuit breaker. Mr. Wallent then inquired what to do if this should happen again, and the employee told him to use a pair of pliers to open...

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  • Leggett Group, Inc. v. Davis
    • United States
    • Florida District Court of Appeals
    • October 10, 2007
    ...or reasonable inferences upon which a jury could legally predicate a verdict in favor of the nonmoving party." Wallent v. Fla. Power Corp., 852 So.2d 339, 342 (Fla. 2d DCA 2003). PREEMPTION Appellant argues that the trial court erred in allowing the jury to consider the continuing to manufa......

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