I’m Being Sued for What?!? Analyzing the Florida Supreme Court’s Opinions Applying the Foreseeable Zone of Risk Test To Determine if a Legal Duty Is Owed

By Samuel C. Higginbottom, Esq.*

All too often, the first time a client learns of a negligence claim is upon receipt of plaintiff’s counsel’s request for their insurance policy. The client does not always understand why or how they may be responsible to a claimant. This is particularly the case for small businesses being sued for the first time. The client’s lack of understanding can lead to frustration, which hinders our ability to defend the claim. By assisting the client to understand the underlying theme of Florida Supreme Court opinions applying the foreseeable zone of risk test to determine if a legal duty is owed, we put the client in a better position to help in defending the claim.

To gain access to court under Florida negligence law, claimants must allege that they were owed some legal duty. A legal duty can arise from: (1) statutes; (2) judicial interpretation of statutes; (3) case law; and (4) the specific facts of a case. Disputes as to whether a legal duty is owed most frequently occur when it is alleged that the legal duty arises from the specific facts of the case. The foreseeable zone of risk test is used to determine if the specific facts of the case give rise to a legal duty. This test was explained in detail in the Florida Supreme Court’s opinion McCain v. Florida Power Corp, 593 So.2d 500 (Fla. 1992), and poses the question, Does the activity at issue create a general zone of foreseeable risk of harm to others?

It seems to be a simple test, but trial court decisions applying the foreseeable zone of risk test are often disputed. One reason is that the test is often confused with the concept of proximate cause as applied under Florida law, and the wrong test is applied. More frequently though, a skilled attorney drafts the complaint to allege that the activity created a foreseeable risk of harm to others, and the defense attorney simply disagrees with that assertion. Recently, on March 27, 2014, the Florida Supreme Court clarified the law on this issue in Dorsey v. Reider, 139 So.3d 860 (Fla. 2014).

In Dorsey, it was alleged that Mr. Reider prevented Mr. Dorsey from escaping an assault committed by a third individual. A jury trial was held, and Mr. Reider’s motions challenging the existent of his legal duty to Mr. Dorsey were denied. The verdict awarded over $1.5 million in favor of Mr. Dorsey. The trial court’s application of the foreseeable zone of risk test was appealed. The appellate court ruled that Mr. Reider did not owe a duty of care to Mr. Dorsey. Upon further appeal, the Florida Supreme Court, applying the foreseeable zone of risk test, determined that hindering someone’s “ability to escape an escalating situation created a foreseeable zone of risk posing a general threat of harm to others.”

While not an earth-shattering opinion, when reviewed with other Florida Supreme Court precedent, a theme emerges. Over the years the Florida Supreme Court, in applying McCain, has determined that the following situations create a foreseeable zone of risk that pose a general threat of harm to others:

• Selling a firearm to an intoxicated person. See, Kitchen v. K-Mark Corp., 697 So.2d 1200 (Fla. 1997);
• Directing an intoxicated driver to move a vehicle to another location. See, Henderson v. Bowden, 737 So.2d 532 (Fla. 1999);
• Deactivation of traffic signals. See, Goldberg v. Fla. Power & Light Co., 899 So.2d 1105 (Fla. 2005);
• Permitting property conditions to extend into the public right-of-way. See, Williams v. Davis, 974 So.2d 1052 (Fla. 2007); and
• Storage and handling of pollutants or other hazardous materials. See, United States v. Stevens, 994 So.2d 1062 (Fla. 2008); See Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216 (Fla. 2010).

The underlying theme of these Florida Supreme Court opinions is that the foreseeable zone of risk test should be applied broadly to allow claimants access to the courts and the opportunity to prove their cases. This is consistent with the Florida Supreme Court’s policy that summary judgment motions should be rarely granted so that claimants have access to the resolution of claims through trial. By helping our clients understand this concept, they will better understand the legal process and, hopefully, be in a better position to assist us in defending their claims.

*Sam is an associate in our Tampa, Florida office who can be reached at 813.898.1806 or schigginbottom@mdwcg.com.

Defense Digest, Vol. 20, No. 4, December 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.