Case Details
Dwane was standing on a ladder using a pole saw tree trimmer and was attempting to cut a palm frond off of a palm tree.
Where/When The Accident Happened
Behind a residential home in Key Biscayne, FL
D/A: 4/8/2010
Client’s role
Landscaper’s Helper
Details of the Electrocution Accident
Dwane was working for a small landscaping or lawn service type of company that did not have any workers’ compensation insurance (which is very common in that industry where guys just have a truck and some equipment and are not set up with proper insurances and licenses).
In Key Biscayne, FL the overhead electrical “transmission lines” run in the back or rear of the properties. Some towns do this because they don’t have the lines underground and it looks better than having power lines along the street in front of homes.
It was early in the morning and Dwane was trying to help a homeowner who was a widow and asked if he could cut down some palm fronds that were dead and hanging down. There was a large amount of vegetation around the pool deck area where the palm trees were clustered together and Dwane could not see that some of the palms fronds extended 8-10 feet from the base of the tree and were touching the electrical “transmission lines”
Key Biscayne is surrounded by the Atlantic Ocean and Biscayne Bay. It was early in the day so there was a lot of dew on the fronds PLUS palm fronds, like most live vegetation has a large amount of water and is a good conductor of electricity allowing it to travel from the power line through the fronds/branches and into the ground. So when he attempted to cut a frond that was no where near the electrical “transmission lines” it was electrified and electrocuted him thru the pole saw when he cut into the frond. The electricity entered Dwane thru the pole saw end that was near his abdomen and exited through the left side of his face/head.
Injuries Dwane Sustained from the Electrocution Accident at Work
He sustained disabling injuries, the loss of his left eye, 3rd degree burns over 40% of his body. He spent months in Ryder Trauma Burn Unit on life support and was very fortunate to have survived. He underwent well over 10 surgeries, including skin grafts on his face, arms, and abdomen, months of rehabilitation and will never be able to return to gainful employment as a result of his injuries. Dwane has made a miraculous recovery through his relentless determination and rehabilitation efforts that continue today. He still has limited mobility and requires assistance with day to day activities and home modification.
What Our Team Did to Help Win his Workers Compensation Case
The homeowner’s $300,000.00 homeowner’s insurance policy paid prior to suit.
Suit was then filed against the power company alleging that they 1) Owed a “Legal Duty” (Which courts state that a legal duty is “an allocation of risk determined by balancing the forseeability of harm/injury in light of all the circumstances against the burden to be imposed”) and breached that legal duty when they were negligent in maintaining their power lines free from vegetation and that their vegetation management efforts were insufficient which resulted in the dangerous condition that resulted in our client’s injury. Simply put, had they kept the trees away from the power lines as their internal memos and standards required the accident would never had happened.
Through extensive written discovery, expert reports and testimony, the depositions of numerous employees of the utility company we were able to show that they had actual knowledge that the subject palms were present and were coming into contact with the lines. That they had even documented the palm trees as a problem on their own internal “Critical Palm Log” and “Trouble Ticket” incident logs. There was even an incident where the power lines caused one of the palm fronds to catch on fire. So the probability of Dwane’s accident was high and met the “forseeable zone of risk” test discussed below.
Unique Challenges Faced Throughout the Case
1) Limited insurance coverage by the homeowner;
2) A large lien on the settlement from Medicaid for medical bills that were paid by Medicaid;
3) The fact that his employer shared a large portion of the liability for the accident but did not have any insurance coverage at all to help pay for his medical expenses, rehabilitation or to compensate him for his injuries.
4) Case law in Florida makes it very difficult to place blame for these types of accidents on the utility company.
Biglen v. Florida Power & Light Company, 910 So.2d 405 (Fla. 4th DCA 2005) the court using the “forseeable zone of risk” test and refused to hold the power company liable for injuries sustained when the operator of an aerial boom lift which came into contact with a power line. Stating that the power line were in plain view and that plaintiff’s own actions were largely responsible for the accident.
In Dwane’s case we were able to distinguish from this case because the power lines were not in plain view at all and he could not see that the palm tree was touching any lines.
– James D. Payer
Smith v. Florida Power & Light Co., 857 So.2d 224 (Fla. 2nd DCA 2003) held that (1) Power company’s general knowledge of construction project near power company’s lines is insufficient to establish that power company more likely than not created a foreseeable zone of risk with respect to persons engaged in work on the construction project; (2) fact that vehicle bearing power company’s name was seen passing construction site when a crane was at the site was insufficient to establish that the power company had knowledge that crane would be used under its power lines; and (3) power company did not have duty to worker. The court held that forseeability is crucial in defining the scope of the general duty of the utility company to the injured party. The court stated that “A legal duty will arise whenever a human endeavor created a generalized and forseeable risk of harming others.”
In Dwane’s case we were able to distinguish from this case because the utility company had actual knowledge that the subject palms were present and were coming into contact with the lines and that they had even had them documented as a problem on their own internal “Critical Palm Log” and “Trouble Ticket” incident logs. There was even an incident where the power lines caused one of the palm fronds to catch on fire. So the probability of Dwane’s accident was higher and met the “forseeable zone of risk” test.
– James D. Payer
Outcome Of The Case
The homeowner’s $300,000.00 homeowner’s insurance policy paid prior to suit.
Case against FPL was settled shortly after mediation for $2,690,000.00
The case took 5 years.
Lessons Learned
These types of cases take a lot of time and money to investigate (multiple electrical and other experts – including surveyors and arborists are needed) and litigate. Your number one goal is to establish that the accident was foreseeable in the eyes of the utility company.
This case shows that many employers do not have workers’ compensation insurance coverage. It’s a good idea to ask any new employer to provide you with proof of workers’ compensation insurance coverage BEFORE you start working for them. If they refuse, that’s probably a company you don’t want to work for.
If you were injured in an accident at work, remember, It Pays to Call Payer! James D. Payer is a Miami work injury lawyer with over 30+ years of experience helping injured workers in Miami and South Florida with workers compensation cases and lawsuits against third parties. Don’t wait! Reach out to our team today to schedule a free work injury case evaluation.
