Glazer v. Florida Power & Light Co.

689 So. 2d 308, 1997 WL 20517
CourtDistrict Court of Appeal of Florida
DecidedJanuary 22, 1997
Docket96-1715
StatusPublished
Cited by1 cases

This text of 689 So. 2d 308 (Glazer v. Florida Power & Light Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glazer v. Florida Power & Light Co., 689 So. 2d 308, 1997 WL 20517 (Fla. Ct. App. 1997).

Opinion

689 So.2d 308 (1997)

Leonard A. GLAZER, individually, etc., et al., Appellant,
v.
FLORIDA POWER & LIGHT COMPANY, Appellee.

No. 96-1715.

District Court of Appeal of Florida, Third District.

January 22, 1997.
Rehearing Denied March 19, 1997.

*309 Colodny, Fass & Talenfeld, Fort Lauderdale, and Howard M. Talenfeld and Maria Elena Abate; Marraffino & Roth, P.A., Boca Raton, and Lawrence J. Marraffino; Zisser, Robison, Brown, Nowlis & Wedner, Jacksonville, and Barry L. Zisser and Michael B. Wedner, for appellant.

Steel, Hector & Davis and Alvin B. Davis, Miami, Brian R. Brattebo, W. Palm Beach, Thomas R. Julin, and Edward M. Mullins, Miami, for appellee.

Before COPE, GERSTEN and GREEN, JJ.

PER CURIAM.

This is an appeal from adverse final summary judgments entered in favor of Florida Power & Light ("FPL") in this action for negligence and wrongful death. We affirm based upon our conclusion that the undisputed record below, taken in the light most favorable to appellant, demonstrates that FPL had no actionable duty to the appellants as a matter of law. Our holding obviates the need to reach the additional issue of whether the wrongful death action is barred by the passage of the two-year statute of limitations.

I

Appellant Leonard A. Glazer, and his late wife, Elsa, both contracted chronic myelogenous leukemia ("CML"), an extremely rare but terminal form of cancer. Elsa Glazer passed away in June 1988, just months after being diagnosed with CML. Leonard Glazer was not diagnosed with the ailment until January 29, 1992. During the relevant time frame, the couple resided at the same Coral Gables address and slept in the same bedroom for 20 years.[1] FPL owned and maintained electrical distribution lines and a transformer on the easement directly behind and immediately above the Glazer residence. These distribution lines were used by FPL for its delivery of electricity to the surrounding neighborhood.

Leonard Glazer instituted the action below against FPL on January 20, 1994 on behalf of himself and the estate of his late wife, Elsa.[2] The complaint initially alleged essentially that both Glazer and his deceased wife contracted CML as a result of their continuous exposure to magnetic fields[3] which emanated from FPL's transformer and distribution lines, and permeated their bedroom for twenty years. Specifically, Mr. Glazer alleged that FPL had a duty to warn consumers that magnetic fields, created by FPL's transmission of electricity, posed a cancer threat. According to Glazer, if he and his late wife had been warned, they could and would have taken corrective measures to reduce their cumulative exposure to magnetic fields, and thereby prevented their contraction of CML.

Approximately two years after this suit was filed, the Glazers' expert electrical engineer *310 subsequently discovered that the magnetic fields measured in the Glazers' bedroom were actually produced by grounded electrical current flowing in a water main and located behind the Glazers' bedroom. The Glazers amended their complaint to reflect this discovery.[4]

The thrust of the allegations in this second amended complaint was that FPL knew or should have known since the late 1970s that its electrical current travelled through the grounded neighborhood plumbing main as part of the neighborhood distribution circuit. It contended that as a manufacturer, distributor, and seller of electricity, FPL owed the following duties of care to the Glazers:

a) the duty to keep abreast of scientific knowledge, discoveries, and advances regarding the dangers or hazards of electricity and the duty to warn its customers of dangers and hazards associated with the use of electricity not commonly known to the general public including the duty to warn and to disclose the danger of exposure due to EMF created by current flowing through distribution and plumbing lines;
b) the duty to do all that human care, vigilance and foresight can reasonably do to protect those who use its electricity and live in immediate proximity to FPL facilities; and
c) the duty to maintain a level of prudent foresight and guard against foreseeable occurrences which can be reasonably anticipated.

The Glazers further alleged that FPL breached these duties by, among other things, failing to warn about the potential hazards of magnetic fields; failing to investigate the hazards of magnetic fields; failing to institute a home measurement program; actively misinforming the public regarding the possible dangers of magnetic fields; and misleading and influencing state regulators to avoid financial exposure.[5]

II

FPL moved for partial summary judgment on Elsa Glazer's wrongful death action based upon the passage of the two-year statute of limitations. FPL argued that the two-year time limit began to run at her death in 1988, even where the cause of death was not discovered until after two years had elapsed.[6]*311 See section 95.11(4)(d), Fla.Stat. (1987); Walker v. Beech Aircraft Corp., 320 So.2d 418, 420 (Fla. 3d DCA 1975), cert. dismissed, 338 So.2d 843 (Fla.1976). The trial court agreed and found that the two-year statute of limitations period was not tolled by Mr. Glazer's failure or inability to ascertain that his former wife's CML may have been caused by magnetic fields. Accordingly, partial summary judgment was granted on this action on October 17, 1995.

Thereafter, on April 30, 1996, FPL filed an additional motion for partial summary judgment on Mr. Glazer's negligence claim asserting that it had no liability since it was uncontradicted in the record that the dominant source of the magnetic fields at the Glazer's former residence was the ground current flowing on the public water main which was never owned, maintained or controlled by FPL and further that there was no research or study suggesting a link between magnetic fields from plumbing lines and cancer during the twenty-year period that the Glazers resided in their home.[7] At the hearing on this motion, the trial court concluded essentially that FPL had no legal duty to warn the Glazers about magnetic fields where there was no data or research suggesting a link between magnetic fields from grounded plumbing lines and cancer during the Glazers' twenty-year occupancy of their home. Partial summary judgment was granted on April 30, 1996.

On April 27, 1996, FPL moved for final summary judgment on the final claim, as narrowed by the earlier partial summary judgment, that FPL's own power lines and transformer located behind the Glazers' former residence had emitted dangerously high levels of magnetic fields which in turn, caused the Glazers' leukemia. At this hearing, FPL demonstrated with the opinion of Glazer's own expert that the level of magnetic fields emanating from FPL's own power lines located behind the Glazer residence was too minimal or negligible to have caused cancer or leukemia. This concession led to the following exchange between the court and Glazer's counsel:

[Court]: Mr. Talenfeld, everyone seems to agree that the level of radiation coming from Florida Power & Light's lines is harmless, is that correct?
[Mr. Talenfeld]: With respect to the distribution line itself, .2 milligrams would not have caused Leonard Glazer's leukemia. There is no question about that.

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Bluebook (online)
689 So. 2d 308, 1997 WL 20517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glazer-v-florida-power-light-co-fladistctapp-1997.