, 626 So. The American Influence on International Commercial Arbitration: Doctrinal Developments and Discovery Methods. SC01-1955, SCO1-1956) ( December 18, 2003), and, Ivan Martinez v. Florida Power and Light Company. 1984) § 53, p. 358; the threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable … In this case, the damage caused to the wharf by the fire and the furnace oil being set alight could not be foreseen by a reasonable … 2d at 67. The accountant’s conduct was actively and directly to supply the injured parties with false information upon which he knew they would rely. Despite the majority’s demure protestations to the contrary about policymaking (in the form of utility rate-setting) belonging to the legislature in, , the Florida Supreme Court has shown little reluctance to promulgate policy by recognizing new legal duties, as amply demonstrated by their application of, opines, there is a reluctance to “usurp the legislative prerogative” by making public policy, this should be reflected in a restrained court less inclined to recognize new duties, which is a pure exercise in policymaking. The theory of plaintiff's case is that there was a duty on the part of the defendant to exercise reasonable and prudent care in guarding against injuries to business invitees. In other words, a fire is not a foreseeable result that might stem from leaving shards of glass on the ground. SC01-1955, SCO1-1956) (Cantero, J., dissenting). William N. Drake, Jr., and Thomas A. Bustin, Government Tort Liability in Florida: A Tangled Web. The Act, long considered to be favorable toward product manufacturers, contains a provision stating that manufacturers are not liable for harm caused by product misuse, unless the misuse is “reasonably foreseeable.”. 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. Am. , §53 at 324-326 (4th ed. 2d 261 (Fla. 1988). . 45 In addition, the majority applied “the undertaker’s doctrine,” §324 A, Restatement (Second) of Torts (1965), as it had in Union Park Memorial Chapel, 670 So. Negligence is not “in the air” and there is no duty of care with regard to all conduct. Such accident was foreseeable. 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. 2d __ (Nos. 2d 474, 482 (Fla. 2003) (Parienti, J. specially concurring). 42 Whitt, 788 So. 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. 2d 980 (Fla. 1994), which held that it found no duty on the part of the DOT to “make sidewalks safe for motorcycle traffic.” Notably, the. 32 The motorcyclist was also DUI and riding at night without lights according to the district court opinion. 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. note 20 regarding the public duty doctrine. 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 … That conduct was covered by §552, (1976) and was in no way analogous to the doctor’s professional conduct in the, Clay Electric Cooperative, Inc. v. Johnson, .,2003 WL 22966277, __So. 11 Stevens v. Jefferson, 436 So. It is inconsistent with the notion that foreseeability is the only factor to be considered in determining whether a duty exists. SC01-1955, SCO1-1956). is reasonably foreseeable. The motorist then positioned himself between the police car and his own truck, and subsequently was injured when a third vehicle struck the police car. at 282. For example, if Dallas is negligently driving through a small, suburban town and collides with Paula's Ferrari, Dallas is liable for the full amount of damage caused to the car, despite the fact that it might not be foreseeable to encounter such an expensive car driving through a small, suburban town. The vague standard has been applied to supplant more narrow traditional rules for defining duty and thereby expand liability not only in the case of public entities, and corporations, but with regard to the general public as well. SC01-1505) (December 18, 2003), the Florida Supreme Court held that utility companies had a legal duty to third parties (children killed in separate vehicular accidents) when street lighting installed in the vicinity of the accidents was not operating due to alleged failure of the utilities to maintain it. 1, 16 (1953). 2d Negligence §87 and the authorities cited therein. 44 Id. Here, as elsewhere, Prosser recognized that determining the existence of a legal duty is an act of judicial policymaking for better or worse, but he also recognized that “[i]n the decision whether or not there is a duty, many factors interplay:. from the University of Florida in 1975 and since his graduation has been an assistant city attorney with the St. Petersburg City Attorney’s Office, concentrating in civil litigation. How Long Will It Take To Settle Your Personal Injury Case? Michigan Supreme Court Clarifies “Reasonably Foreseeable Misuse”. 20 See William N. Drake, Jr., and Thomas A. Bustin, Government Tort Liability in Florida: A Tangled Web, 77 Fla. B.J. Rather, the duties discussed here have been found to arise from the general facts of the cases. 9 Id. 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. Foreseeable is a concept used in tort law to limit the liability of a party to those acts which carry a risk of foreseeable harm, meaning that a reasonable person would be … 14 The McCain 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. 13 Crislip v. Holland, 401 So. The law usually limits the scope of liability based upon the foreseeability of the type of the harm and the manner of the harm, but not the extent of the harm. So, if the accident described above would normally only cause a few thousand dollars’ worth of harm, but Paula suffers from a rare bone disease and requires over $100,000 in medical treatment as a result of the accident, Dallas is liable for the full nature and extent of the injuries suffered by Paula in the accident. 2d 348, 359 (Fla. 2002) (Pariente, J. concurring); and Rowell v. Holt, 850 So. 47 Clay Electric Cooperative, Inc. Inc.2003 WL 22966277, p.16, __So. He has been board certified in civil trial law since 1984. . It is inconsistent with the notion that foreseeability is the only factor to be considered in determining whether a duty exists. 2d 33, 35 (Fla. 1983)). In contrast, the Second District held in this case that a duty does not arise until a written request to preserve the evidence is made. 2d 256, 259 (Fla. 2002); Gracey v. Eaker, 837 So. 2d 278 (Fla. 1995), the court again used its broad test of foreseeability to find a legal duty on the part of a physician to warn the adult daughter of a thyroid cancer patient that the daughter (not a patient) should be tested for the disease, which the daughter later discovered she had. However, the two Florida cases cited in support of the standard neither contain the phrase “foreseeable zone of risk” nor support the proposition for which they are cited. 2d 500, 503 n.2 (Fla. 1992), and, §87 and the authorities cited therein. 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. Yet, just the opposite has been true: Since the decision in, , under the guise of “sedulous, even-handed application of established principles of tort law,” the court has developed an unorthodox test for duty, the application of which has yet to result in finding the non-existence of a duty in the decisions of the Florida Supreme Court. 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 … v. Max Mitchell & Co. , 558 So. 38 See W. Prosser, Handbook of the Law of Torts, §53 at 324-326 (4th ed. 43 Id. The court did not discuss whether the power company had a duty with respect to the motorcyclist other than to say that it disagreed with the opinion of the First District in Powell v. Florida Department of Transportation, 626 So. 2d at 88; Rupp v. Bryant, 417 So. den., 639 So. 2d at 212. They demonstrate how application of McCain has invariably resulted in the imposition of a legal duty. The $50 million adverse jury verdict had been entered … 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.). This could be especially true in cases … In the first place, the particular injury or damage may be foreseeable in the sense that, not only the exact person injured was foreseen to have been exposed to the risk, but … 29 Bankston v. Brennan, 507 So. This case disapproved the direct consequence test in Re Polemisand established the test of remoteness of damage. ” William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 2d 617, 618 (Fla. 4th D.C.A. These remarks since have become the foundation of a vague foreseeable-zone-of-risk standard for the existence of a legal duty in this state. There is no reason why a university may act without regard to the consequences of its actions while every other legal entity is charged with acting as a reasonably prudent person would in like or similar circumstances.37, In this sweeping pronouncement, the court revealed both its own profound misunderstanding of the fundamental principles of negligence law and its inclination to conform all human conduct to a reasonableness standard, subjecting any nonconformity to civil liability. Specifically, citing McCain, the court reasoned: In the present case, we think it manifest that a high-speed chase involving a large number of vehicles on a public thoroughfare is likely to result in injury to a foreseeable victim, and that the discontinuance of this chase by police is likely to diminish the risk. 22 Id. Learn more about proving negligence in a personal injury case. All rights reserved. After noting that “[i]n the past courts have held that in order to maintain a cause of action against a physician, privity must exist between the plaintiff and physician,”21 the court eschewed that precedent and adopted instead the rationale of cases involving other types of professionals, such as attorneys and engineers, suggesting that “lack of privity does not necessarily foreclose liability if a duty of care is otherwise established.”22 Finding McCain supplied such a legal duty whenever conduct involves risks, the court “conclude[d] that this analysis recognizing that privity is not always needed to establish liability should apply to the professional relationship between a patient’s health care provider and child.”23 The court asserted that its holding was “likewise in accord with McCain because under the duty alleged in this case, a patient’s children fall within the zone of foreseeable risk.”24 Like the Brown case, Pate extends liability to third persons with whom the defendant had no direct contact or transaction. 5 57A Am Jur. 2d 732 (Fla. 1989), which involved a police officer who made a roadside traffic stop and, after the stop, told the motorist in the vehicle not to approach the police car. We see no reason why the same analysis should not obtain in a case in which the zone of risk is created by the police.10. 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. case, the court seems uncomfortable simply basing its holding on the provision in the, on negligent entrustment, but must reinforce its rationale by reference to, , 680 So. Here, as elsewhere, Prosser recognized that determining the existence of a legal duty is an act of judicial policymaking for better or worse, but he also recognized that “[i]n the decision whether or not there is a duty, many factors interplay:. . case in finding no duty and the Florida Supreme Court denied review. 2d __ (Nos. A year later, in Nova S.E. (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. The "Eggshell Skull" Rule. . 2d 347, 362 (Fla. 2002); Markowitz v. Helen Homes of Kendall Corp., 826 So. 1996), did not apply McCain in reaching its decision. To consider an action negligent and therefore find a party responsible for injury, the act would have to be considered reasonably foreseeable. 17 The 10 Florida Supreme Court cases surveyed in this section of the article are those in which the court expressly has based its holding at least in part upon McCain. Yet, the Florida Supreme Court has elevated foreseeability to the sole factor creating duty, thus providing not an analytical framework for determining the existence or nonexistence of a legal duty but a simplistic and invalid equation isolating one of the many factors traditionally considered by the courts and equating that single factor with duty. 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. ‘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.’ Do Not Sell My Personal Information, proving negligence in a personal injury case, Tips for Getting the Best Personal Injury Settlement. 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