27 Kitchen, 697 So. at 35. Stevens cites Crislip v. Holland, 401 So. The accountant’s conduct was actively and directly to supply the injured parties with false information upon which he knew they would rely. As it had done with the police cases, Kaisner and Brown, the court employed the foreseeable-zone-of-risk standard to circumvent a legal obstacle which otherwise would have prevented recovery. Foreseeable Law and Legal Definition. 20 See William N. Drake, Jr., and Thomas A. Bustin, Government Tort Liability in Florida: A Tangled Web, 77 Fla. B.J. Reasonable foreseeability is a mechanism which limits the type of plaintiffs, risks or damages which the defendant is liable for. 28 Horne v. Vic Potamkin Chevorolet, Inc., 533 So. 2d at 281. Jur. 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. Thus, the court portrayed its McCain case as enlightened and progressive and “the agrarian rule” as myopic and outdated. That obligation may have social or economic consequences far beyond its violation resulting in access to the court. In such a situation, it is said that the superseding act breaks the causal chain between the initial negligent act and the injury. No less authority on tort law than the late Dean William Prosser wrote, “It needs no argument to show that duty does not always coincide with foreseeable risk.”49. It is always tempting to impose new duties and, concomitantly, liabilities, regardless of the economic and social burden. ‘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.’ 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. 16 Id. First Florida Bank, N.A. 2d 164, 166 (Fla. 1997); Owens v. Publix Supermarkets, 802 So. A person who causes injury to another person is liable for the full extent of the harm, whether or not the extent of the harm is foreseeable. 1965 Limberg v. Lent, 206 Va. 425, 143 S.E.2d 872. at 221. 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. Such accident was foreseeable. The duty to use reasonable care to keep and maintain the premises in a reasonably safe condition includes protecting invitees from hazards actually known to the owner or occupier and to determine that the premises are reasonably … The court should reject its flawed McCain standard and make clear that foreseeability alone is not a basis for finding the existence of a legal duty. The court held that a funeral director, who voluntarily undertakes (pun in original opinion) to organize and lead a funeral procession, owes a duty of reasonable care to procession participants.25 Although the holding finds support in §324A, Restatement (Second) of Torts (1965) and several cases involving the duty of persons voluntarily rendering services to another, the court unnecessarily buttressed the finding of duty with McCain-type language.26. An easy-to … case in finding no duty and the Florida Supreme Court denied review. . Nova had assigned a 23-year-old graduate student to perform an internship at one of its off-campus facilities, where she was attacked in the parking lot, robbed, and sexually assaulted. at 737. 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. 2d Negligence §78, and 38 Fla. Jur. Some members of the court have expressed discomfort with the role of making policy, which, as some have remarked, more appropriately belongs to the legislature.50 Yet the majority has not been shy about recognizing new legal duties in the cases surveyed in this article. 2d at 1202. note 20 regarding the public duty doctrine. See, however, 57A Am. In other words, the former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open. 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. , §53 at 324-326 (4th ed. Although the McCain court tries to legitimize the foreseeable-zone-of-risk standard, there is no direct authority for it. Interestingly, the Florida Supreme Court case cited in support of this proposition, First Florida Bank, N.A. cases from a sloppy use of the idea. This discussion is consistent with the Restatement (Second) of Torts §290, What Actor is Required to Know; §291, Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct; §293, Factors Considered in Determining Magnitude of Risk. 9 Id. The majority concluded that police, participating in a vehicular pursuit, owed a duty to third-party motorists injured in a collision with the fleeing criminal’s vehicle although the police vehicle was not directly involved in the crash. Even the phrase “foreseeable zone of risk” does not appear in surveying the negligence law of most other jurisdictions and is confusing. See McCain v. Florida Power, 593 So. 2) McCain v. Florida Power: Building on Misconception. Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. 1) Kaisner v. Kolb: The Genesis of Florida’s Duty Standard. Michigan Supreme Court Clarifies “Reasonably Foreseeable Misuse”. 2 This article does not address duties which may arise solely from sources such as legislative enactments or administrative regulations. 42 Whitt, 788 So. 2d 1115, 1117 (Fla. 4th D.C.A. 2d 474, 482 (Fla. 2003) (Parienti, J. specially concurring). , 2003 WL 22964568, __So. 43 Id. However, ignoring that precedent, the court simply characterized the conduct involved as acting “negligently during a roadside detention”34 and applied McCain to find the existence of a duty and open the door to recovery against the sheriff. 2d at 1208. 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. 45 However, unlike the preceding decisions, these cases … 2d 64 (Fla. 1996), the issue was whether a funeral director had a duty to a member of a funeral procession who was injured in an intersection accident when her vehicle in the procession ran a red light. 2d 315, 330 (Fla. 2001); Malicki v. Doe, 814 So. After going to the store, he proceeded to drive off without police permission and subsequently had an accident in which the two rear seat passengers were killed. at 735–36. 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. at 737. This could be especially true in cases … SC01-1955, SCO1-1956) ( December 18, 2003), and, Ivan Martinez v. Florida Power and Light Company. 2d 1385 (Fla. 1987). It is important for boards to discuss any decision not … __ (No. 2d 1115, 1117 (Fla. 4th D.C.A. , the court has never failed to embrace an argument for the recognition of a new legal duty. 34 Henderson, 737 So. 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. Foreseeability is a personal injury law concept that is often used to determine proximate cause after an accident. 22 Id. 2d 261 (Fla. 1988). The accountant’s conduct was actively and directly to supply the injured parties with false information upon which he knew they would rely. ... or unless it was reasonably foreseeable … ” William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1993), 639 So. 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. For example, if Daniel left a candle burning in his apartment while he was at work, and, subsequently, a burglar broke into his apartment and knocked the candle over, burning down the entire building, Daniel would likely not be liable for injuries sustained because the burglar was an unforeseeable, superseding cause. 23 Id. As though excusing the weakness of its analysis, the court minimizes the impact of its new, broad test for legal duty by referring to duty as “a minimal threshold legal requirement for opening the courthouse doors.”16 However, the assurance of relative innocuousness has proven hollow as the following survey of the cases applying McCain will demonstrate. 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. How Long Will It Take To Settle Your Personal Injury Case? 46 Justice Cantero with which Justice Wells concurred. Jur. Therefore just because an accident happens because of … 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. 13 Crislip v. Holland, 401 So. 2d at 537. The state’s high court has finally clarified the meaning and analysis of “reasonably foreseeable” misuse under Michigan’s Product Liability Act. 1996), did not apply, in reaching its decision. 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. 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. 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. Justice Cantero with which Justice Wells concurred. City of Fort Pierce v. Crislip, 411 So. Indeed, only one other jurisdiction (Oklahoma) has been found recognizing a foreseeable-zone-of-risk test for duty, and there the test is adopted from Florida law. See Stevens v. Jefferson, 436 So. 2d 500, 503 n.2 (Fla. 1992), and Restatement (Second) of Torts §285 (1965) discussing sources of duty. den., 639 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. 44 Id. 2d 532 (Fla. 1999), the court used McCain to bypass the public duty doctrine and find a duty on the part of sheriff’s deputies to passengers of a vehicle stopped because the driver was under the influence of alcohol.33 After the driver was arrested, a passenger, who also was alleged to have been intoxicated, was allowed by the police to drive the car, owned by his parents, only to a nearby convenience store in order to call his parents and thereby avoid impoundment of the car. SC01-1955, SCO1-1956) (Cantero, J., dissenting). For instance, if the property owner’s liability exposure increases because the court has determined that the “agrarian rule” will no longer afford protection from liability to motorists traveling adjacent highways, there may be a related increase in the cost of insurance to property owners. __ (No. An even-handed application of a fair standard for duty should be expected to result occasionally in the court finding no duty. . As with other applications of McCain to find legal duty, there was no meaningful analysis other than to mention the case and quote the zone-of-risk language before concluding that a duty existed. 2d 64. 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. , 21 P.3d 74 (OK 2001). . at 1228 (Overton, J. dissenting). A recent decision from the Supreme Court of Canada clarifies determination of what is “reasonably foreseeable”: Rankin (Rankin’s Garage & Sales) v … A straightforward rejection of the foreseeable-zone-of-risk “standard” and overruling of McCain would signal the court’s willingness to meet its responsibility to consider all relevant factors bearing on the relationship of the parties and the interests of society before determining that the imposition of a legal duty, with potentially far-reaching consequences, is justified and necessary. 1981). 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 … 38 See W. Prosser, Handbook of the Law of Torts, §53 at 324-326 (4th ed. William N. Drake, Jr., received his J.D. 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. Foreseeability as a sole determinant for duty is not a “fundamental principle of tort law” but a distortion of negligence law, which traditionally has employed the test of relevant factors discussed herein. In its latest decisions relying on McCain, in Clay Electric Cooperative, Inc. v. Johnson Inc., 2003 WL 22966277 (Nos. 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. 26 See Union Park Memorial Chapel, 670 So. This asks whether the damage would be reasonably foreseeable. 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. Defendant did not fail to observe duty owed to plaintiff if it was not within reasonably foreseeability … Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct, Factors Considered in Determining Magnitude of Risk. 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. The discussion of negligence in American Jurisprudence 2d also contains the following caveat: In respect to the law of negligence, foreseeability should not be confused with duty. Foreseeability is a personal injury law concept that is often used to determine proximate cause after an accident. It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice. That's not all: Usually the type of harm that occurred must have been foreseeable. 2d Negligence §78, and 38 Fla. Jur. The American Influence on International Commercial Arbitration: Doctrinal Developments and Discovery Methods. 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. 2d 1008 (Fla. 1st D.C.A. 36 Justice Anstead recused himself. Rather, the duties discussed here have been found to arise from the general facts of the cases. William N. Drake, Jr., and Thomas A. Bustin, Government Tort Liability in Florida: A Tangled Web. Other examples of superseding causes that are usually deemed unforeseeable: Examples of superseding causes that are typically deemed foreseeable (so that the defendant does not escape liability): Unforeseeable Extent of Harm. 2d 912 (Fla. 1985), and Everton v. Willard, 468 So. 2d __ (Nos. 1 See 57A. The Test of Foreseeability Foreseeability is the leading test to determine the proximate cause in tort cases. 2d 500, 503 makes reference to other jurisdictions which recognize “that a legal duty will arise whenever a human endeavor creates a generalized foreseeable risk of harming others,” but no such jurisdictions are identified or cited. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. 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:. 2D 9 ( Fla. 2001 ) ; and at 324-326 ( 4th ed authority! Regardless of the defendants to potential tort liability: a Tangled Web v.,! Motorcyclist was also DUI and riding at night without lights according to court... 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