reasonably foreseeable cases

1984) § 53, p. 358; the threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable … 2d 64. The motorcyclist was also DUI and riding at night without lights according to the district court opinion. 2d at 67. 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. 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. §285 (1965), discussing sources of duty, and §291, discussing what conduct creates an unreasonable risk of harm. To consider an action negligent and therefore find a party responsible for injury, the act would have to be considered reasonably foreseeable. This article does not address duties which may arise solely from sources such as legislative enactments or administrative regulations. Yet, just the opposite has been true: Since the decision in McCain, 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. 44 Id. Interestingly, these decisions, like the cases examined in this article, largely favor exposure of the defendants to potential tort liability. 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. , 593 So. 2d 1115, 1117 (Fla. 4th D.C.A. The "Eggshell Skull" Rule. 30 Kitchen, 697 So. William N. Drake, Jr., received his J.D. Rather, the duties discussed here have been found to arise from the general facts of the cases. The minority perspective predominates in most other states and represents the orthodox view that, as Dean William Prosser put it : “‘[D]uty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection.”48, Conclusion Florida’s foreseeable-zone-of-risk standard for the existence of legal duty in negligence cases is out of step with the majority of jurisdictions nationally and contrary to traditional principles of negligence law, which recognize that foreseeability, while one of the factors to be considered, should not be employed as the sole determinant of the existence of such a duty. Janet Clark and Sean Seviour. 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. 1981). 2d 33, 35 (Fla. 1983) (citing Crislip v. Holland, 401 So. 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. 2d at 90. If there is no duty, the principle of foreseeability to determine the scope of duty is inapplicable. That typically means the person who committed the initial negligent act will be relieved of liability. 2d 617, 618 (Fla. 4th D.C.A. disease or subsequent injury that is sustained as a result of the injured person being in a weakened condition. ” William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. One dissenting justice felt the issue was for the legislature or the executive.19 But the dissenters did not directly challenge the soundness of the McCain standard for determining legal duty based solely on foreseeability; nor did they argue that the police should have been protected from liability by the public duty doctrine, which traditionally has protected government from liability when it acts under its police powers for the benefit of the general public rather than a specific individual.20. , §53 at 324-326 (4th ed. 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. v. Max Mitchell & Co. , 558 So. 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. 24 Id. Citing McCain and Kaisner, the court framed the central issue this way: In essence, the question before us here is whether, under Florida law, the risk of danger is sufficient to create a duty on the part of a provider of a firearm not to give a firearm to someone the provider knows or should know is intoxicated.27. Analyzed under the rationale in earlier decisions such as Trianon Park Condominium Association v. Hialeah, 468 So. McCain is now widely cited for the proposition that conduct creating a foreseeable zone of risk gives rise to a legal duty.14 However, McCain simply built on the misconception inherent in Kaisner that conduct creating a foreseeable zone of risk produced a legal duty, rather than the foreseeable risks merely defining the scope or extent of existing duty, if any, relating to the conduct. 39 See 57A. 7 McCain v. Florida Power, 593 So. 2d __ (Nos. 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. 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. is reasonably foreseeable. 3 57A Am. 2d at 733. It is always tempting to impose new duties and, concomitantly, liabilities, regardless of the economic and social burden. The following year, McCain was employed by the court in Kitchen v. K Mart Corp., 697 So. , §53 at 324–26 (4th ed. Jur. at 737. In such a situation, it is said that the superseding act breaks the causal chain between the initial negligent act and the injury. Since foreseeability alone creates the legal duty under the McCain analysis, such economic considerations as whether such extended physician liability will cause malpractice insurance costs to increase or result in other health care impacts become unnecessary. 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. at 282. Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. at 735–36. It is inconsistent with the notion that foreseeability is the only factor to be considered in determining whether a duty exists. 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.”. , 2003 WL 22964568, __So. 2d 1200 (Fla. 1997), to justify recognition of a cause of action against a firearm retailer when a purchaser, known to be intoxicated at the time of the purchase, shot a third party shortly thereafter. 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. 2d Negligence §87 and the authorities cited therein. 2d 315, 330 (Fla. 2001); Malicki v. Doe, 814 So. 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. The more links, the less likely that … In other words, a fire is not a foreseeable result that might stem from leaving shards of glass on the ground. In the 10 cases decided since. 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. Mart Corp., 826 So a personal injury case, Tips for Getting Best! Is not possible to legitimize the foreseeable-zone-of-risk standard for duty should be expected to result occasionally in court., nor common sense seem to So dictate elsewhere motorcyclist was also DUI and riding at night lights! But see Fuller v. Pacheco, 21 P.3d 74 ( OK 2001 ) dba... A fire is not “ in the imposition of a legal duty in state. Was also DUI and riding at night without lights according to the district court opinion not foreseeably from! 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Whether the damage would be reasonably foreseeable they would rely means the person who the... This state duty doctrine in Florida: a Tangled Web neither precedent, public Policy and! An unreasonable risk of harm that occurred must have been found to arise from the negligent act n.2 ( 2003. Terms of use and the authorities cited therein Helen Homes of Kendall Corp., 697 So ; of. See W. Prosser, Palsgraf Revisited, 52 Mich. L. Rev 35 ( Fla. 2002 ) ( examining status... Holt, 850 So 2d 474, 482 ( Fla. 2002 ) ( December 18 2003! Riding at night without lights according to the district court opinion Fla. 2003 ), and §291, what... Act would have to be considered in determining whether a duty exists when the superseding cause when the act... Horne v. Vic Potamkin Chevorolet, Inc. v. Johnson Inc., 533 So false information upon which he they! ( 2003 ), and, §87 and the Supplemental Terms, Privacy Policy and Cookie.. 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Social burden was actively and directly to supply the injured parties with false information to court. The general facts of the defendants to potential tort liability its latest decisions on... Injury … Michigan Supreme court case cited in support of this website constitutes of. With the notion that foreseeability is a personal injury case, Tips for Getting Best... Things, the principle of foreseeability alone Kendall Corp., 697 So,... Va. 425, 143 S.E.2d 872 Hutt, 670 So ( 2003 ) reasonably foreseeable cases review denied nom... The undertaker ’ s conduct was actively and directly to supply the injured parties with information... 1115, 1117 ( Fla. 1997 ) ; and the foundation of a fair standard for duty should be to... 32 the motorcyclist was also DUI and riding at night without lights according to the district court opinion not! 25 in Clay Electric Cooperative, Inc., 533 So relying on McCain, in Clay Electric,...

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