Published July/August 2014 by Ted Babbitt
In Dorsey v. Reider, 39 Fla. L. Weekly S163 (Fla. March 27, 2014), the Supreme Court analyzes the responsibility relative to the actions of third parties. In that case, the defendant and his friend were drinking to excess with the plaintiff and the defendant became belligerent and combative. The plaintiff derided him and walked out the door whereupon the defendant and his friend followed him and trapped him between cars. The defendant actively blocked the plaintiff’s escape while a friend retrieved a tomahawk from the defendant’s truck and struck the plaintiff in the head.
A jury returned a verdict for substantial damages against the defendant and in favor of the plaintiff and the Third District reversed holding that the defendant did not owe a duty of care because there was no evidence that the defendant colluded with his friend or that the defendant could foresee the attack.
The Supreme Court found conflict with its opinion in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992). There the Supreme Court held that a duty could arise from the general facts of a case. The Supreme Court in McCain relied upon the concept of defendant’s conduct creating “a foreseeable zone of risk.” At 502, the Supreme Court in McCain held:
The duty element of negligence focuses on whether
the defendant’s conduct foreseeably created a
broader ‘zone of risk’ that poses a general threat of
harm to others.
At 503, the McCain opinion holds:
The statute books and case law, in other words,
are not required to catalog and expressly proscribe
every conceivable risk in order for it to give rise to
a duty of care. Rather, each defendant who creates
a risk is required to exercise prudent foresight
whenever others may be injured as a result. This
requirement of reasonable, general foresight is
the core of the duty element. For the same reasons,
duty exists as a matter of law and is not a factual
question for the jury to decide: Duty is the
standard of conduct given to the jury for gauging the
defendant’s factual conduct. As a corollary, the
trial and appellate court cannot find a lack of duty
if a foreseeable zone of risk more likely than not
was created by the defendant.
In Dorsey v. Reider, supra, the Court confirms that ordinarily there is no legal duty to prevent the misconduct of third persons unless one of the exceptions to that rule is carved out by the facts. Those exceptions include instances where the defendant is in actual or constructive control of the instrumentality, the premises on which the tort was committed, or the tortfeasor.
In Dorsey, the Court explains the distinction between duty and proximate cause explaining that a duty arises any time the defendant’s conduct creates a foreseeable zone of risk whether or not the defendant could actually foresee the injury which occurs.
The Court explains that the Third District was in error in construing the Supreme Court’s opinion in McCain, supra. At 164, the Court holds:
However, our McCain decision does not require that
to find a duty of care under these circumstances,
there must be evidence that the defendant colluded
with the third party to cause harm or knew exactly
what form that harm might take – only that his
conduct created a general zone of foreseeable danger
of harm. The exact type of injury that results is not
required to be anticipated.
Foreseeability is still required to show proximate cause. At 163, the Court holds:
. . . establishing the existence of a duty is primarily
a legal question and requires demonstrating that
the activity at issue created a general zone of
foreseeable danger of harm to others.
Establishing proximate cause requires a factual
showing that the dangerous activity foreseeably
caused the specific harm suffered by those
While the issue of duty is one for the Court to determine, proximate cause is almost invariably a jury question. Thus, the courthouse door is open when defendant’s conduct is shown to have caused the creation of a foreseeable zone of risk posing a general threat of harm to others. That is sufficient for the Court to hold that a duty exists on the part of the defendant to the plaintiff. Thereafter a jury question is raised as to whether the specific harm to the plaintiff was sufficiently foreseeable to pass the proximate cause test.