Fourth District Court of Appeal Examines Negligence Per Se in South Florida Tree Trimmer’s Death

Palm tree and skyMany jobs come with inherent risks, and although safety precautions often help prevent those risks from materializing into actual harm, precaution is occasionally insufficient. In a recent case, Vitrano v. Florida Power & Light Co., the Fourth District Court of Appeal looked at the passing of a tree trimmer who died from an inadvertent electrocution. Specifically, the Court had to determine whether the trial court had erred in denying the plaintiff’s request for a negligence per se jury instruction in a trial against the power company.

The decedent in this case was hired to trim the tree outside a South Florida home. A few days prior to the date the homeowner enlisted the decedent to trim his trees, a Florida Power & Light (“FPL”) representative had visited the homeowner’s abode and observed that the palm fronds on the homeowner’s tree were too close to the power lines. The representative told the homeowner of the issue and told the homeowner that FPL would arrange to have the trees trimmed. The homeowner declined the offer because he had already intended to have the trees trimmed. The representative, however, did not tell the homeowner that the tree nearest the line presented the greatest risk and that the homeowner should not have that tree trimmed. In addition, FPL did not provide a guard for the power line. Shortly thereafter, the decedent and his employees came to the homeowner’s home to perform the trimming work. The decedent started to climb the ladder, which a helper steadied at its base. The helper testified that a short time afterward he heard what sounded to be an electrical sound and saw the decedent fall from the ladder to the ground. He further testified that the palm fronds nearest the power lines seemed to be burned and appeared to be directly in contact with the power line. The decedent died as a result of the shock or his fall.

The decedent’s widow, as representative for his estate, brought suit against FPL, alleging that FPL was negligent for both creating a danger by allowing vegetation to grow too closely to its power lines without making an effort to trim the tree and for failing to warn others of the dangerous condition created. During a charge conference subsequent to trial, the plaintiff sought to include a negligence per se instruction to the jury. Negligence per se allows a plaintiff to prove negligence simply by showing the defendant failed to conform its conduct to a particular rule or regulation that is designed to prevent the injury incurred by the plaintiff. The trial court denied the request, concluding that the decedent fell outside the class of people the provisions of the National Electric Safety Code cited by the plaintiff were designed to protect. Following a return of a jury verdict in favor of the defendant, the plaintiff brought this appeal.

The Fourth District Court of Appeal, however, agreed with the trial court and the defendant. In general, a negligence per se instruction is permitted for two types of statutory or code violations:  (1) a violation of a statute that imposes strict liability designed to protect a particular class of people who are unable to protect themselves; and (2) a violation of a non-strict-liability statute that establishes a duty to take precaution to protect a particular class of people from a particular type of injury. DeJesus v. Seaboard Coast Line R.R. Co., 281 So. 2d 198, 200-01 (Fla. 1973). Violations of other types of statutes or codes may be presented as evidence of general negligence, but they do not merit a negligence per se instruction. Id.

Section 366.04 of the Florida Statutes adopted the National Electric Safety Code. The Fourth District noted that the various provisions of the code were generally designed to protect employees and contractors of power companies and the public. The court questioned whether the proximity of vegetation to the power line amounted to a defect, since one could reasonably argue that proximity does not amount to an actual defect in the line itself. However, the court noted that even if it assumed that this was a defect, a negligence per se instruction was still unwarranted. The court reasoned that the tree trimmer fell beyond the class of persons the section of the code requiring vegetation to be trimmed was designed to protect. Instead, the court determined that that section was designed to protect members of the public who haplessly come into contact with vegetation allowed to come into contact with power lines, like children climbing trees, but did not provide particularized protection for a tree trimmer who during the course of cutting a tree near a power line could come into contact with the line in various ways. Therefore, in the court’s opinion, the trial court did not err in denying a negligence per se instruction.

Indeed, the distinction between children who happen upon a tree that has become electrified and one who routinely climbs trees that may have been allowed to grow too close to power lines is a narrow one. However, one should note that the appellate court was required to use a deferential standard of review in assessing the propriety of denying the jury instruction. Given that a litigant may not, in many circumstances, get a genuine second go at an argument on appeal, one should always be prepared to provide the best possible argument on the first occasion. Indeed, the aid of counsel is often useful for making the strongest possible argument at the trial court level, and someone considering bringing legal action should consider finding competent counsel prior to bringing legal action to remedy his or her injuries. The South Florida workplace negligence attorneys at Frankl & Kominsky have considerable experience with Florida negligence law and are ready to help you prepare the strongest possible case. If you’ve recently been injured and are curious about the viability of your possible case, feel free to contact us for a complimentary case consultation.

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