Fourth DCA Affirms Homeowners Owe No Legal Duty to Warn an Independent Contractor of Obvious Electrical Lines Above a Palm Tree1
We are pleased to announce that the Forth District Court of Appeal has affirmed Summary Judgment in favor of homeowners in a lawsuit filed by an independent contractor for injuries he suffered when he was electrocuted while trimming trees at their home.
This was an appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County. Our firm and attorneys John Bond Atkinson and Tiffany Bustamante had the pleasure and privilege to represent the appellees, the underlying defendants and homeowners, Mary and Richard Weden, in this Appeal.
This appeal arises from the circuit court’s summary judgment determining as a matter of law that the appellee homeowners had no legal duty to warn the appellant independent contractor of the danger of high voltage electric lines intertwined within the palm trees at their home. The appellant was hired by the appellees to perform general hurricane preparation landscape trimming at their home. He arrived to the appellees’ home with his own workers, tools, and equipment. He employed his own methods with respect to the tree trimming at the home and was given sole discretion as to which trees to trim, how best to trim the trees, and what tools to use.
Ultimately, the appellant became electrified when he either made direct or indirect contact with an overhead electrical line intertwined among palm trees at the home. The result was a severe electric shock injury resulting in three months hospitalization, where he received almost daily skin grafts at a Miami hospital burn unit, where he underwent an amputation of his right hand, and other severe electric shock injuries. Future life care expenses were calculated to amount to $1,878,895.00.
During the appellant’s deposition, the appellant admitted that he observed the electrical lines intertwined among the palm fronds prior to his accident. However, the appellant testified he was not aware of the danger of electricity because he spent his childhood in rural Mexico, had seen “birds and squirrels…walk over the cables,” and otherwise did not know the difference between a telephone line, cable line, electric service line, or high voltage electric line. The appellant posited that the issue on appeal was whether an open, known danger’s degree of hazardousness is detectable as opposed to whether the existence of a danger was detectable.
The Fourth District Court of Appeals found that despite the appellant’s contentions that he did not know that the lines were high voltage lines, ignorance of the degree of a danger does not render its existence latent. The Court went on to state that:
All electric lines are dangerous, some more than others. “[T]he existence of unobstructed power lines, clearly visible above an open field is not a latent hazard.” Rice, 363 So. 2d at 839; see also Somers v. Meyers, 171 So. 2d 598, 601 (Fla. 1st DCA 1965) (“[I]t is presumed that the inherent dangers of electrically energized wires is [sic] known to all except those of tenderest age.”).
We invite you to watch the video Oral Argument using the link below:
Should you have any questions with respect to the contents of this letter or the Fourth DCA opinion, we welcome your call.
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
ISRAEL SALINAS, individually, and as parent
and natural guardian of JS, LS, and IAS,
RICHARD WEDEN, MARY WEDEN and
FORT PIERCE UTILITIES AUTHORITY,
[November 25, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Barbara W. Bronis, Judge; L.T. Case No. 2018CA000876.
Marc R. Ginsberg of Mandina & Ginsberg, LLP, Miami Lakes, for appellant.
John Bond Atkinson and Tiffany Bustamante of Atkinson, P.A., Miami, for appellees Richard Weden and Mary Weden.
We affirm the summary judgment in favor of homeowners on a complaint by an independent contractor for injuries he suffered when he was electrocuted while trimming trees on their property.
A property owner is generally not liable for injuries sustained by an independent contractor or its employees while performing their work. See Phillips v. Republic Fin. Corp., 157 So. 3d 320, 324 (Fla. 5th DCA 2015); Houk v. Monsanto Co., 609 So. 2d 757, 759 (Fla. 1st DCA 1992). An exception to that general rule is that:
‘A person who is having work done on his premises by an independent contractor, and has actual or constructive knowledge of latent or potential dangers on the premises, owes a duty to give warning of, or use ordinary care to furnish protection against, such dangers to employees of the contractor and subcontractor who are without actual or constructive notice of the dangers.’
Fla. Power & Light Co. v. Robinson, 68 So. 2d 406, 411 (Fla. 1953) (citations omitted). However, “[a]n ‘owner is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own sense, and is not required to give the invitee notice or warning of an obvious danger.’” Rice v. Fla. Power & Light Co., 363 So. 2d 834, 839 (Fla. 3d DCA 1978), citing Hall v. Holland, 47 So. 2d 889, 891-92 (Fla. 1950).
The independent contractor admitted that he saw the electric lines above the palm trees. While the contractor contends that he did not know that the lines were high voltage lines, it does not seem to us that this constitutes a latent danger. All electric lines are dangerous, some more than others. “[T]he existence of unobstructed power lines, clearly visible above an open field is not a latent hazard.” Rice, 363 So. 2d at 839; see also Somers v. Meyers, 171 So. 2d 598, 601 (Fla. 1st DCA 1965) (“[I]t is presumed that the inherent dangers of electrically energized wires is [sic] known to all except those of tenderest age.”).
WARNER, GERBER and ARTAU, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.