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FLORIDA POWER &
LIGHT CO. v. JENNINGS
518 So.2d 895 (1987)
FLORIDA POWER &
LIGHT COMPANY, Petitioner,
v.
S.B. JENNINGS a/k/a
Bryan Jennings, Jr., et al., Respondents
FLORIDA POWER & LIGHT COMPANY, Petitioner,
v.
Virginia S. ROBERTS,
et al., Respondents.
Nos. 68593, 69069.
Supreme Court of
Florida.
September 3, 1987.
Barry R. Davidson, of Steel, Hector & Davis, Miami, for petitioner
David W. Foerster, of David W. Foerster, P.A., Jacksonville, for respondents
H. Rex Owen and Bruce Crawford, of Owen & McCrory, and Harry A. Evertz, III, St. Petersburg, and Sheila McDevitt, Tampa,
for Florida Power Corp. and Tampa Elec. Co., amici curiae.
Anita L. Shepperd and William H. Chandler, of
Chandler, Gray, Lang & Haswell, P.A., Gainesville, for Florida Rural Elec.
Cooperatives Ass'n., amicus curiae.
EHRLICH, Justice.
We have consolidated for our review two eminent domain cases, Florida Power
& Light Company v. Jennings,485
So.2d 1374 (Fla. 1st DCA 1986), and Florida Power & Light Co. v.
Roberts,490
So.2d 969 (Fla. 5th DCA 1986),1
as both cases involve the identical issue. The district court in Jennings
certified the following question of great public importance:
IS EVIDENCE
OF THE EXISTENCE OF FEAR AND ITS EFFECT ON MARKET VALUE ADMISSIBLE AS A FACTOR
IN PROPERTY VALUATION, IF IT IS SHOWN THAT THE FEAR IS REASONABLE.
485 So.2d at
1379. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We hold that all
evidence relevant to the issue of full compensation is admissible in eminent
domain proceedings. The public's "fear" as a factor which may be
relevant to the issue of just compensation may be utilized as a basis for an expert's
valuation opinion regardless of whether this fear is objectively reasonable.
The "fear" at issue here concerns the public's
perception of health and safety hazards arising from human proximity to 500,000
volt (500 kV) transmission lines. The petitioner, Florida Power
& Light (FPL), initiated condemnation proceedings for a perpetual utility
easement for FPL's planned 500 kV transmission lines; these lines are supported
by 115-125 foot high structures with 99 foot crossarms.
FPL's real estate appraiser testified below that there were no severance
damages to the remainder of the landowners' property and further testified that
the landowners would still retain some uses of the condemned easements. The
property owners presented expert testimony from, inter alia, a professional
planning consultant and three real estate brokers and appraisers. These real
estate witnesses' testimony covered comparable sales of property in other
counties located on either a 500 kV or 240 kV line and opined that the landowners
had suffered damages on the taken parcels greater than those claimed by FPL's
appraiser and that the landowners had suffered severance damages to their
remaining land.
The issue presented here centers on two of the
landowners' scientific expert witnesses, Dr. Norgard
and Dr. Wertheimer, who testified concerning the adverse health effects of 500
kV transmission lines. Norgard, a professor of electrical
engineering, testified about the coupling effect of electrical energy from
power lines into the human body. Norgard concluded
that there is a long-term chronic effect on humans from exposure to these fields.
Wertheimer, an epidemologist, had undertaken field
studies of leukemia in children; she had published findings that demonstrated a
link between cancer in children and their proximity to power lines. Wertheimer
testified below that recent studies from other countries indicate that constant
exposure to high voltage electromagnetic fields promotes cancer.
FPL had filed a motion in limine to
exclude these scientific experts from testifying. FPL argued that Casey v.
Florida Power Corp.,157
So.2d 168 (Fla. 2d DCA 1963), represented the law in Florida on this issue
and that such evidence was inadmissible unless a property appraiser could
testify that his valuation opinion is based on the fact that potential
purchasers of real property in the relevant county are knowledgeable about the
alleged adverse effects and that these buyers would depreciate the land
adjacent to a power line before they would buy it. The landowners responded to
FPL's argument by pointing out that within the previous eighteen months,
numerous articles had been published concerning the adverse effects of high voltage
transmission lines. Consequently, the landowners argued, the public is aware of
the issue and the market place reflects this fact. The landowners intended on
introducing comparable sale studies, including one from another 500 kV line
located in Hernando County; the landowners argued that the scientific experts'
testimony was necessary to show the causes of the depreciation in value which
the comparable sales studies would reflect.
The trial court denied FPL's motion and ruled that the scientific
testimony was admissible; the court ruled this evidence was relevant not only
to the issue of damages to the taken property but was also relevant to the
issue of severance damages. The jury returned verdicts for each of the taken
parcels which was greater than the valuation given by FPL's appraiser and also
awarded severance damages for each parcel.
On appeal, the district court affirmed and rejected FPL's
assertion that it was error for the trial court to refuse to follow Casey.
While holding that admitting the testimony of the landowners' scientific
experts was not an abuse of discretion by the trial court, 485 So.2d at 1379,
the district court rejected the reasoning employed in Casey which held
that "opinion evidence as to value in a condemnation case, based upon fear
of a steel tower and high voltage transmission lines, is too speculative and
conjectural to be considered as an element of damage to adjacent land." Casey
v. Florida Power Corp., 157 So.2d at 170. Sub judice,
the district court opted for what was characterized in Casey, 157 So.2d
at 170, as the intermediate rule:
Under this
rule, evidence of the existence of fear and its effect on market value may be
admitted into evidence as a factor or circumstance to be considered by the
trier of fact in a property valuation proceeding, so long as it is shown that
the fear has a reasonable basis.
485 So.2d at 1379.
At the outset, we agree with the district court's rejection of Casey.
Casey was premised, at least in part, on a characterization by the court
that a potential buyer who would offer less than the "true value" for
the property because of transmission lines and towers would do so because of
timidity or ignorance, 157 So.2d at 170, and that such "ignorance and
fear" cannot serve as the basis for a jury award. Id. at 171. We
reject Casey for two reasons. First, the above quoted language referring
to a potential buyer who would offer less than the "true value" of
the property because of fear or ignorance is a conclusory and contradictory
statement. The issue in eminent domain proceedings is a determination of
what is the "true value" of the land taken for a public purpose.2
The second reason flows from the first. If potential buyers entertain fears
concerning transmission lines and towers and would, therefore be willing to pay
less for the property in question, then Casey's rationale excludes
evidence which is extremely relevant to the central issue of what is full
compensation to the landowner.
The district court's endorsement of the so-called intermediate
rule which allows fear to be considered by the jury if the fear is reasonable
has superficial appeal. We perceive the court's concern with the reasonableness
of the public's fear to be based on an assumption that a jury award based upon
an objectively unreasonable fear would in effect allow the jury to base its
award on speculation and conjecture, which of course it may not do. See,
e.g., Walters v. State Road Department,239
So.2d 878, 882 (Fla. 1st DCA 1970) (a jury verdict based on such factors is
in derogation of constitutional guarantee of full compensation). FPL and amici
argue that the district court's rejection of Casey and its adoption of
the intermediate rule with its requirement of a reasonable basis for fear, in
fact exacerbates the problem of speculative jury awards, because it allows the
jury to compensate a landowner for an inherently subjective and speculative
element. We reject petitioner's argument in this context because its
premise is unsound: The scientific testimony below was purportedly admitted to
show one of the reasons why land adjacent to transmission lines
decreases in value. As stated, the scientific testimony was deemed admissible
evidence by the trial court because it would explain the decrease in
land value which the landowner's comparable sales evidence would show. Contrary
to petitioner's characterization, therefore, this scientific testimony
concerning the alleged adverse health effects of a 500 kV transmission line was
not introduced on the theory that the jury could consider the adverse health
effects of these lines as an additional and independent basis for compensation.
We do, however, find merit in FPL's other arguments against the
intermediate rule, and, therefore, we disapprove the district court's adoption
of the intermediate rule. We reject as irrelevant the requirement that the
landowner must prove to the jury that the public's fear of the alleged adverse
health effects from these transmission lines has a reasonable scientific basis.
Adverse health effects vel non is not the issue in
eminent domain proceedings: full compensation to the landowner for the property
taken is. Allowing such scientific testimony into evidence, albeit under the
guise of explaining why the presence of transmission lines depreciates the
value of adjacent property, is irrelevant to the issue of full compensation.
Not only does allowing such scientific testimony into evidence confuse the true
issue, it also presents the unacceptable risk that the jury will feel obliged,
if it believes the landowners' experts, to fashion an award that encompasses
possible future injuries to persons. Eminent domain proceedings are actions in
rem, See Peeler v. Duval County,66
So.2d 247 (Fla. 1953); Wilson v. Jacksonville Expressway Authority,110
So.2d 707 (Fla. 1st DCA 1959); allowing a jury to compensate a landowner
for possible future personal injuries would transform the proceedings into an
in personam action. Such a change is unwarranted in
order to ensure the constitutional guarantee of full compensation for property
taken for a public purpose.
As stated, the issue in eminent domain proceedings is to determine
what is full compensation for both the property taken and for damages to the
remaining property. Typically this involves real property brokers or appraisers
who give valuation testimony based on, e.g., the current or potential use of
the property in question, the population growth and development of the
surrounding area, and sales of similar property. Sub judice,
the landowners' real property experts extensively relied on sales of comparable
property in other counties located adjacent to a 240 kV or 500 kV transmission
line. Depending on the county and the size of the transmission line, this
testimony tended to show a decrease in value ranging from twenty-seven to
forty-seven percent for property along transmission lines. When asked to
explain the reasons for the decrease, one of the landowners' experts explained:
My
investigations reveal that there was a definite concern on the part of the
buying public in two specific areas, principally two, and these specific areas
were the matter of aesthetics, and the matter of the unsightliness of the lines
for one, and secondly, the matter of the health hazards.
We hold that the scientific testimony introduced below was
irrelevant and unnecessary. It could not be seriously suggested that the first
factor relied on by the expert quoted above to explain the
devaluation-aesthetics needed to be supported by the testimony of
"aesthetic experts" who could testify that there is a
"reasonable basis" for the fact that potential buyers would pay less
for the property because of the unsightliness of transmission lines and towers.
Whether this aesthetic factor could be shown to be objectively reasonable is
irrelevant: the only relevant consideration in this context is whether, in
fact, property adjacent to these transmission lines sells for less after the
towers are present than it did before. This also holds true for the question of
alleged health hazards.
We join the majority of jurisdictions who have considered this
issue and hold that the impact of public fear on the market value of the
property is admissible without independent proof of the reasonableness of the
fear.3
This view is perhaps best represented by the sixth circuit's decision in Hicks
v. United States,266
F.2d 515, 521 (6th Cir.1959), which held:
The apprehension
of injuries to person or property by the presence of power lines on the
property is founded on practical experience and may be taken into consideration
in so far as the lines and towers affect the market value of the land.
(citations omitted). The sixth circuit in United States ex rel.
TVA v. Easement and Right of Way,405
F.2d 305 (6th Cir.1968), had occasion to reevaluate its decision in Hicks
when the condemning authority, the TVA, insisted that its recent studies show
such transmission lines were, in fact, safe. The court adhered to its decision
in Hicks, holding:
TVA has
conducted numerous safety studies and has concluded from them that apprehension
of injuries is not founded on practical experience and should not be considered
in awarding incidental damages. The TVA studies conducted on this issue are
also creditable. However, in final analysis, we are concerned only with market
value. Although these studies may show objectively the complete safety of these
structures, we are not convinced that certain segments of the buying public may
not remain apprehensive of these high voltage lines, and therefore might be
unwilling to pay as much for the property as they otherwise would.
Id. at 309.
The experts' scientific testimony introduced below was irrelevant
to any fact at issue. "The theory of allowing evidence of an expert
witness to be received by the triers of fact is to understand and determine an
issue of fact." Wright v. State,348
So.2d 26, 31 (Fla. 1st DCA 1977), cert. denied, 353 So.2d 679 (Fla.
1977). The scientists who testified below on behalf of the landowners added
nothing to aid the jury in determining the value of the taken property and any
severance damages to the remainder. Instead, the scientific testimony altered
the focus of the trial and confused the issue to be determined. Under the rule
we adopt today, the reasonableness of fear is either assumed or is considered
irrelevant. See Willsey v. Kansas City Power &
Light Co.,6
Kan.App.2d 599, 605-606, 631
P.2d 268, 274 (1981) (and cases cited therein). We agree with the
observation made by the court in Willsey that
"[a] certain amount of fear and a healthy wariness in the presence of high
voltage lines strikes us as eminently reasonable." Id. at 614, 631
P.2d at 279. We believe that a jury is certainly capable of determining whether
an experts' valuation opinion is reasonable that explains the devaluation of
property adjacent to high voltage lines in part, because of the public's fear
of health hazards. By the same token, we believe that a jury could also
determine the reasonableness of a valuation opinion which explains the
devaluation of such adjacent property on the grounds that, e.g., the buying
public is fearful that transmission lines attract alien being in flying
saucers. In short, whether a real property expert's valuation opinion is based
on reasonable factors may be determined by the jury without resort to other
expert witnesses' testimony or documentary evidence concerning the
reasonableness of the buying public's fears.
In addition to the fact that the scientific testimony introduced
below was irrelevant to any fact at issue and only tended to obfuscate the
issue of full compensation, we reject the intermediate rule for another reason.
Under the guise of showing the reasonableness of the public's fear, the jury
below was allowed to hear testimony that the electric field from high voltage
lines can produce a coupling effect of electrical energy into the human body
and that the result is a long-term chronic effect. The jury was also allowed to
hear that constant exposure to high voltage electromagnetic fields promotes
cancer in children and adults. This irrelevant testimony is so inflammatory and
prejudicial that we find a new trial is warranted. If these dire scientific
predictions do, in fact, transpire, those so injured will have their day in
court. Redress for future personal injuries is not proper in an in rem eminent
domain proceeding.
In conclusion, we hold that any factor, including public fear,
which impacts on the market value of land taken for a public purpose may be
considered to explain the basis for an expert's valuation opinion. Whether this
fear is objectively reasonable is irrelevant to the issue of full compensation
in an eminent domain proceeding. The introduction into evidence of independent
expert's scientific testimony is, therefore, unnecessary and only serves to
confuse the actual issue before the jury. Because this irrelevant scientific
testimony was prejudicial and inflammatory, we quash the decision of the
district court below and remand for a new trial in accordance with this
opinion.4
The trial court's awards of attorneys' fees are reversed for redetermination at
the conclusion of the litigation on remand.
It is so ordered.
McDONALD, C.J., and
OVERTON, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.