Opinion
Nos. 88-42, 88-228.
February 13, 1990.
Appeal from the Circuit Court, Dade County, Jon I. Gordon, J.
Conroy, Simberg Lewis, and Henry T. Wihnyk, Hollywood, for appellants.
Aimee D. Stein, Shutts Bowen, and Stephen B. Gillman, Miami, Lawrence E. Gill, Coral Gables and E. Barlow Keener, for appellees.
Before SCHWARTZ, C.J., and BARKDULL and COPE, JJ.
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 appellees to support their utility pole without placing a guy wire across a thoroughfare and that being so, appellees were obliged to employ the alternative. Appellants do not say there was anything wrong with the way the guy wire was installed or maintained, nor do they contend the appellees failed to obtain the required approval for installation. See generally §§ 125.42, 337.401, 362.01, Fla. Stat. (1987). Instead, say appellants, the guy wire should never have been there at all. Had there been no guy wire, appellants could not have collided with it.
We are unable to subscribe to appellants' reasoning. The availability of an alternative does not, without more, establish that appellees' conduct was negligent, for appellees are at liberty to choose between nonnegligent 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.
BARDKULL and COPE, JJ., concur.
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 unelectrified 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't 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).
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 dangers of a falling wire. See Padgett v. West Florida Elec. Coop. Inc., 417 So.2d 764, 768 (Fla. 1st DCA 1982) (power company may be liable for defective transformers and circuit breakers which caused injury after impact by motorist who left roadway and traveled great distance before striking pole; "factual questions arise as to whether the power lines could be reasonably anticipated to fall from any cause; whether the public might be reasonably expected to come into contact with those wires, and whether, in the event of collision with the poles, the circuit breakers maintained by defendant could properly de-energize the lines"); Crislip v. Holland, 401 So.2d 1115, 1117 (Fla. 4th DCA 1981) (city may be liable for improperly placing spike in utility pole which caused injury where plaintiff was hurled against pole as a result of collision on adjoining roadway; "The crux of the City's argument is that, because the injuries were sustained by a plaintiff who arrived upon the spike by being hurtled there as a result of an automobile crash, rather than by a plaintiff who was merely passing by the utility pole, the accidental injuries were unforeseeable. This contention is unavailing, however, since the particular method of injury is irrelevant to the determination of whether the occurrence of injuries is reasonably foreseeable."), pet. for review denied, 411 So.2d 380 (Fla. 1981); Mozer v. Semenza, 177 So.2d 880, 883 (Fla. 3d DCA 1965) (hotel negligently constructed so as to cause unreasonably rapid spread of fire liable when actual fire was caused by unanticipatable act of arson; "The scope of defendant's duty to maintain reasonably safe premises does not include a duty to foresee a particular fire but it does include a duty to reasonably guard against the risk of fire. Viewed from this standpoint it is not important to the liability of the appellant whether the fire started in one way or another. It was reasonably foreseeable that there would, even under modern conditions, be a likelihood of fire and it was the duty of the defendant to provide a reasonably safe place in anticipation of that danger.").
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.
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.