Although the McCain court tries to legitimize the foreseeable-zone-of-risk standard, there is no direct authority for it. (citations omitted), It might seem theoretically more appealing to confine all questions of foreseeability within either the element of duty or the element of proximate causation. 2d 617, 618 (Fla. 4th D.C.A. 33 See supra note 20 regarding the public duty doctrine. It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice. That obligation may have social or economic consequences far beyond its violation resulting in access to the court. Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. 2d 33 (Fla. 1983), involved whether a bar owner could be held liable for the death of a patron from injuries inflicted by a third party, where the owner had no specific knowledge of the dangerousness of the third party, but had only a general knowledge of other shootings and fights in the bar. 50 The issue of whether the courts should make policy at all has been the focus of considerable discussion by judges and legal scholars and the courts sometimes ostensibly defer to the legislature in this area. 1) Kaisner v. Kolb: The Genesis of Florida’s Duty Standard. , 850 So. 2d 380 (Fla. 1981)). The case referenced the existing legal duty of the bar owner at the outset of the opinion based on precedent which had previously established the duty.11 The discussion of foreseeability in Stevens was not in relation to the existence of a legal duty of the bar owner, but to the issue of proximate cause and whether the injuries incurred were the reasonably foreseeable consequences of the tortfeasor’s conduct.12 There was no mention of “foreseeable zone of risk” as a determining factor for the existence of a legal duty. A person who causes injury to another is not liable if the type of harm does not foreseeably flow from the negligent act. First Florida Bank, N.A. 2d 500, 503 n.2 (Fla. 1992), and, §87 and the authorities cited therein. This asks whether the damage would be reasonably foreseeable. 34 Henderson, 737 So. .2003 WL 22966277, p.7, __So. 2d __ (Nos. 23 Id. 20 See William N. Drake, Jr., and Thomas A. Bustin, Government Tort Liability in Florida: A Tangled Web, 77 Fla. B.J. 2d at 1202. at 737. 40 Whitt, 788 So. Defendant did not fail to observe duty owed to plaintiff if it was not within reasonably foreseeability … In this article, we’ll discuss some of the issues that may arise with respect to proximate cause and foreseeability, when you're trying to prove fault in a personal injury case. The discussion lists “numerous relevant factors,” which can be characterized generally as economic and social factors, including, but not limited to, “the foreseeability of harm to the plaintiff.” 4 W. Prosser, Handbook of the Law of Torts, §53 at 324 (4th ed. A recent decision from the Supreme Court of Canada clarifies determination of what is “reasonably foreseeable”: Rankin (Rankin’s Garage & Sales) v … And foreseeability should not be employed as the sole means to create a duty where none existed before.5, As will become evident, the Florida Supreme Court has not heeded this caution, and—contrary to virtually all other state jurisdictions—has developed a standard for determining the existence of duty founded solely on foreseeability.6. 2d 912 (Fla. 1985), and Everton v. Willard, 468 So. Neither precedent, public policy, nor common sense seem to so dictate elsewhere. ~ From the Rules Regulating The Florida Bar. 2d 1115 (Fla. 4th DCA 1981), which held that the injuries sustained by an automobile passenger when his leg struck a metal spike protruding from a utility pole after the passenger was ejected from the vehicle were a foreseeable consequence of the negligent act of the City of Ft. Pierce in placing the spike on the pole. 2d at 281. 2d __ (Nos. In Pate v. Threkel, 661 So. case in finding no duty and the Florida Supreme Court denied review. Therefore just because an accident happens because of … Several Oklahoma courts cite Florida law on the same foreseeable-zone-of-risk test for duty, but upon close examination do not use foreseeability alone as a standard for legal duty, as Florida does. .2003 WL 22966277, p.16, __So. 19 Id. 2d Negligence §139 and discussion of the Palsgraf “orbit of risk” doctrine, which has developed generally into a test not for duty but for proximate cause. Am. 49 William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. Court does not tell us the authority from which it adopts this terminology, which does not appear to have been used in the earlier Florida authorities cited, but the term is employed effectively by the court to portray the rule as antiquated. In the two cases cited above, the violent attack was deemed foreseeable while a car accident due to lack of enforcement of parking restrictions was not. 2d 9 (Fla. 1990), involved an accountant’s liability to third parties who he. __ (No. The facts discussed in the opinion do not support the conclusion that the officer ordered the motorist to stand anywhere, but only that he told the motorist not to approach the police car. Accordingly, we believe the law must recognize a duty in this context even though the accident did not involve a police vehicle.18, The dissenting justices recognized that the decision of the majority represented a tacit public policy determination that the interests of the public in law enforcement’s apprehension of fleeing offenders should yield to the interests of the motoring public in safe highway travel. 2 This article does not address duties which may arise solely from sources such as legislative enactments or administrative regulations. . v. Max Mitchell & Co. , 558 So. Several Oklahoma courts cite Florida law on the same foreseeable-zone-of-risk test for duty, but upon close examination do not use foreseeability alone as a standard for legal duty, as Florida does. To be reasonably foreseeable, a type of loss or damage: must be within the contemplation of the parties at the time: in contract law: when the contract was made, or; in tort law: when the … at 35. 2d Negligence §16 and the authorities cited therein; Restatement (Second) of Torts §285 (1965), discussing sources of duty, and §291, discussing what conduct creates an unreasonable risk of harm. at 735–36. 2d 474, 482 (Fla. 2003) (Parienti, J. specially concurring). , 593 So. A year later, in Nova S.E. . 30 Kitchen, 697 So. The opinion asserted that “the question of foreseeability and whether an intervening cause is foreseeable is for the trier of fact.”13 Thus, the Kaisner court mistakenly extrapolated its foreseeable-zone-of-risk test for the existence or creation of legal duty out of the language of Crislip and Stevens, although those cases referenced foreseeability only as applied to the scope or extent of an existing duty. 2d 1359 (Fla. 1998), the court found a duty on the part of a power company to a motorcyclist unlawfully operating his motorcycle on a bicycle path when he struck a company guy wire. Actually, the imposition of a legal duty is more than a threshold requirement for getting into court; it is a formal judicial recognition of a legal obligation to conform to a particular standard of conduct toward another. 3 57A Am. A couple of recent cases from Tennessee's Court of Appeals illustrate the role of foreseeability--whether an accident or injury was "reasonably foreseeable"--in tort cases and how the absence of reasonable … 2d Negligence §136, p. 198. Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. Despite the majority’s demure protestations to the contrary about policymaking (in the form of utility rate-setting) belonging to the legislature in Clay, the Florida Supreme Court has shown little reluctance to promulgate policy by recognizing new legal duties, as amply demonstrated by their application of McCain in the cases surveyed in this article. The majority in both cases adhered to the simplistic foreseeable-zone-of-risk analysis to yield the desired result of a duty on the part of the utilities to the deceased juveniles. 8, 12 (Feb. 2003), and Thomas A. Bustin and William N. Drake, Jr., Judicial Tort Reform: Transforming Florida’s Waiver of Sovereign Immunity Statute, 32 Stetson L. Rev. ‘To inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.’ 2d 86 (Fla. 2000), the court imposed a duty upon a university to adult students not to assign them to an internship site at an “unreasonably dangerous” location. 2d __ (Nos. A person who causes injury to another is not liable for a superseding cause when the superseding cause itself was not foreseeable. In other words, some substantial portion of the risk is being created by the police themselves, notwithstanding any contributory negligence of the person being chased. Interestingly, these decisions, like the cases examined in this article, largely favor exposure of the defendants to potential tort liability. © 2020 The Florida Bar. SC01-1505) (December 18, 2003), Justice Shaw exhumes this doctrine, which he dubs the “undertaker doctrine” and predicates liability partially upon it, but, for the reasons expressed in the dissent of Justice Cantero, the doctrine, while not defunct, is of limited application and inapposite in the factual setting of those cases. Rather, the duties discussed here have been found to arise from the general facts of the cases. The foreseeability test basically asks whether a person of ordinary intelligence should have reasonably foreseen the general consequences that could result because of his or her conduct. The ‘reasonably foreseeable’ test, as it has been applied in cases of physical injury, is so likely to give rise to a relevant duty that courts very rarely even consider duty, preferring instead to launch straight into … 2d at 216. 2d 348, 359 (Fla. 2002) (Pariente, J. concurring); and. Rather, the duties discussed here have been found to arise from the general facts of the cases. In most personal injury cases, the answer to the question "Who was at fault?" McCain has become little more than a mantra offered in lieu of engaging in the kind of vigorous analysis of relevant factors to which the public is entitled when the court is essentially making policy. case has spawned numerous decisions finding duty not on the basis of traditionally accepted factors such as the relationship of the parties and policy concerns discussed in this article, but simply upon the observation that a “foreseeable zone of risk” has been created. A judge or jury may consider whether the installation of a metal detector or the presence of security guards would have been a reasonable precaution undertaken by the bar owner. SC01-1955, SCO1-1956). is reasonably foreseeable. In some states, the information on this website may be considered a lawyer referral service. , 2003 WL 22964568, __So. Since the McCain case, the Florida Supreme Court has utilized its new standard for duty in a variety of cases and, not surprisingly, invariably has found a duty to exist.17 This line of cases applying the McCain standard will be examined in the order in which decided. The court found that it had conflict jurisdiction to review the decision of the Fourth DCA, which found a duty despite the motorcyclist’s violation of §316.1995 prohibiting driving any vehicle other than by human power upon a bicycle path.31 The statute was not an obstacle for the Florida Supreme Court, nor were any public policy considerations, such as whether the power company should have a duty to maintain its guywire so as to protect a motorcyclist illegally using a bicycle path.32. “orbit of risk” doctrine, which has developed generally into a test not for duty but for proximate cause. City of Fort Pierce v. Crislip, 411 So. See, e.g., Springtree Properties, Inc. v. Hammond, 692 So. 29 Bankston v. Brennan, 507 So. The foreseeability test basically asks whether the person causing the injury should have reasonably foreseen the general consequences that would result because of his or her conduct. Although it has been said that no universal test for duty has ever been formulated; see e.g., W. Prosser & W. Keeton, Torts (5 th Ed. 13 Crislip v. Holland, 401 So. 37 Nova, 758 So. The court should analyze the issues so as to take the responsibility for the policy decision that a legal duty should exist rather than apply a contrived, mechanical formula which will dictate automatically that a such duty does exist. 2d 64. 2d 315, 330 (Fla. 2001); Malicki v. Doe, 814 So. 25 In Clay Electric Cooperative, Inc. v. Johnson Inc.,2003 WL 22966277, __So. There are other cases in which the court has referenced, , but the holdings do not rest upon an application of the, , 837 So. Stevens cites Crislip v. Holland, 401 So. 2d 474, 482 (Fla. 2003) (Parienti, J. specially concurring). A landowner owes a duty to an invitee to use reasonable care in keeping and maintaining the premises in a reasonably safe condition.. ” William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. A consequence is reasonably foreseeable if it could have been anticipated by an ordinary person of average intelligence as naturally flowing from his actions. This could be especially true in cases … 1981). The Test of Foreseeability Foreseeability is the leading test to determine the proximate cause in tort cases. 2d. at 282. 8, 12 (Feb. 2003), and Thomas A. Bustin and William N. Drake, Jr., Judicial Tort Reform: Transforming Florida’s Waiver of Sovereign Immunity Statute, 469, 484 (2003) (examining the status of the public duty doctrine in Florida and nationally.). The "Eggshell Skull" Rule. 2d 1222 (Fla. 1992), the majority on a deeply divided court seized upon its newly created foreseeable-zone-of-risk test to obviate direct consideration of whether the interests of the public in police pursuing and apprehending criminals outweighed the interests of the motoring public in safe highway travel. SC01-1955, SCO1-1956) ( December 18, 2003), and Ivan Martinez v. 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