Vidaurre ex rel. Vidaurre v. Florida Power & Light Co.
Vidaurre ex rel. Vidaurre v. Florida Power & Light Co.
Opinion of the Court
ON MOTION FOR REHEARING
We grant the motion for rehearing, withdraw our opinion dated August 15, 1989, and substitute the following opinion.
Appellants, plaintiffs below, appeal an adverse summary judgment and separate judgment for costs. We affirm.
This litigation arose out of an automobile accident on Kendall Drive in Dade County. Appellants were traveling eastbound when an oncoming driver lost control of his vehicle and struck a wooden utility pole, known as a guy pole or stub pole, causing it to fall. The guy pole supported an overhead guy wire, which crossed Kendall Drive and was fastened to a larger utility pole. The function of the non-electric guy wire was to provide support for the larger utility pole. When the oncoming vehicle collided with the guy pole there was a chain reaction, so that the guy pole fell, in turn causing the guy wire to fall across Kendall Drive just at the moment the appellants approached. Appellants’ vehicle struck the guy wire, as a result of which appellants were injured.
Appellants sued the oncoming driver who was the active cause of the accident. That litigation has concluded and is not involved in the present appeal. Appellants also brought a separate suit against appellees Florida Power & Light Company and Southern Bell Telephone Company, as owners of the utility poles. The present consolidated appeal arises from the trial court’s disposition of the latter case.
In their complaint appellants contended that it was negligent for appellees to employ the guy pole and aerial guy wire across a public roadway in order to support the utility pole. Appellants urge that there was an alternative available method for
We are unable to subscribe to appellants’ reasoning. The availability of an alternative does not, without more, establish that appellees’ conduct was negligent, for appel-lees are at liberty to choose between non-negligent courses of action. Cf. Leathem v. Moore, 265 So.2d 270, 276 (La.Ct.App. 1972) (“even though a design may not be perfect or foolproof, it is still not defective provided reasonable care is taken in its adoption”).
On these facts there was no breach of duty owed by appellees to appellants. By contrast there was actionable negligence on the part of the oncoming driver, who was the proximate cause of appellants’ injury and against whom appellants proceeded in another lawsuit.
Affirmed.
Concurring Opinion
(specially concurring).
I
I concur with affirmance on the stated ground that, as a matter of law, the power company was not negligent, as the plaintiffs alleged, merely in maintaining an une-lectrified wire over a city street. Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla. 1952); Prager v. Marks Bros. Co., 483 So.2d 881 (Fla. 3d DCA 1986); 38 Fla.Jur.2d Negligence § 21 (1982).
While the plaintiffs submitted expert opinions to the conclusory effect that the wires should “reasonably have been arranged otherwise,” the affidavits did not state that the existing configuration was in violation of reasonably safe construction and engineering standards in the community, see Millar v. Tropical Gables Corp., 99 So.2d 589, 590 (Fla. 3d DCA 1958), industry wide practice, a statutory or code provision, or provide any other cognizable basis for the conclusion that there was a departure from the requirements of due care. Hence, the experts’ views were merely illusory “net opinions” which do not create a genuine issue on the negligence point. Division of Admin., State Dep ⅞ of Transp. v. Samter, 393 So.2d 1142 (Fla. 3d DCA 1981); Allapattah Community Ass’n, Inc. v. City of Miami, 379 So.2d 387 (Fla. 3d DCA 1980), cert. denied, 386 So.2d 635 (Fla. 1980).
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II
I do not agree, however, with the power company’s contention that recovery is barred because the collision with the pole was an unforeseeable intervening act. If the defendant could be deemed negligent at all, that negligence would not consist of placing the pole (which the plaintiff did not strike) in a dangerous position, but rather by maintaining an unreasonable risk of danger to travelers on the roadway that the wire would fall on them. It is clearly the rule that, so long as the ultimate result falls within the scope of the risk created by the negligent act, the precise series of events which has culminated in injury need not be foreseen nor foreseeable. Gibson v. Avis Rent-A-Car Sys., Inc., 386 So.2d 520 (Fla. 1980); Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441 (Fla. 1961); K-Mart Enters, v. Keller, 439 So.2d 283 (Fla. 3d DCA 1983), pet. for review denied, 450 So.2d 487 (Fla. 1984).
In this case, it would not matter for causation purposes that the event which actually caused the wire to fall was the perhaps separately unforeseeable impact on the pole or, indeed, any particular event which ultimately resulted in the exposure of travelers on North Kendall Drive to the
These cases are to be contrasted with those cited by the defendant on the foreseeability issue. In each of them, the plaintiff was injured by coming in contact with the defendant’s pole, Florida Power & Light Co. v. Macias, 507 So.2d 1113 (Fla. 3d DCA 1987), review dismissed, 513 So.2d 1060 (Fla. 1987), review denied, 518 So.2d 1276 (Fla. 1987), or wire, Florida Power & Light Co. v. Lively, 465 So.2d 1270 (Fla. 3d DCA 1985), pet. for review denied, 476 So.2d 674 (Fla. 1985); Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 460 (Fla. 1979), respectively. He claimed only that the wire had been negligently placed where an impact could be reasonably anticipated. The court’s holding in each instance was simply that that danger was, to the contrary, not foreseeable because the location of the object was far removed from a place of danger. To revert to the proximate cause principles stated, the claimed “risk” of harm was itself unforeseeable. In this case, the risk of harm was — or so a jury might find— foreseeable even if the impetus for its realization was not.
. These might include, for example, even the quite unlikely occurrences of high wind, lightning or even a fire truck with its ladder improperly extended striking the wire.
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