Foreseeable zone of risk: confusing foreseeability with duty in Florida negligence law.

• Author: Drake, Jr., William N.
• Position: Cover Story

It is axiomatic in the law of negligence in Florida and elsewhere that the elements giving rise to a cause of action are a legal duty on the part of the defendant to protect the plaintiff, the defendant's breach of that duty and injury or damage to the plaintiff caused by the breach of duty. (1) This article focuses on the first of the elements and the peculiar legal standard to identify when a legal duty exists developed during the last several decades by the Florida Supreme Court. (2)

Tests for Duty

* Nationally--Relevant Factors Test

While there is no single, universally accepted, national legal standard for determining the existence of legal duty as an element of negligence, the following passage from American Jurisprudence 2d describes the analytical process generally employed by most courts:

In fixing the bounds of duty, not only logic and science but also policy plays an important role, for, as it has been said, the imposition of a duty is an exercise of judicial policy making. A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit. It is always tempting to impose new duties and, concomitantly, liabilities, regardless of the economic and social burden. Thus, the courts have generally recognized that public policy and social considerations, as well as foreseeability, are important factors in determining whether a duty will be held to exist in a particular situation. (3) (citations omitted, emphasis supplied)

The relationship between the parties is at the foundation of the legal concept of duty, which is concerned with whether that relationship "imposes upon one a legal obligation for the benefit of the other." (4)

* Florida--Foreseeable-Zone-of-Risk Test

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. If there is no duty, the principle of foreseeability to determine the scope of duty is inapplicable. 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)

1) Kaisner v. Kolb: The Genesis of Florida's Duty Standard.

Florida's foreseeable-zone-of-risk standard for the existence of a legal duty has no clear lineage either in the negligence law of foreign jurisdictions or Florida jurisprudence. (7) The Florida Supreme Court first enunciated this standard in Kaisner v. Kolb, 543 So. 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. 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 negligence alleged was that the police had "breached a duty of care by failing to use proper police procedure in the stop." (8) The majority found sufficient "custody," control, or "detention" of the motorist by the police to give rise to a common law duty of care and that "the decision as to where a motorist will be ordered to stand [did not involve] the type of discretion that needs to be insulated from suit" (9) by governmental immunity.

In Kaisner, the majority postulated:

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. See Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983) (citing Crislip v. Holland, 401 So. 2d 1115, 1117 (Fla. 4th DCA), review denied sub nom. City of Fort Pierce v. Crislip, 411 So. 2d 380 (Fla. 1981)).

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)

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. 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. Stevens v. Jefferson, 436 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. 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.

Stevens cites Crislip v. Holland, 401 So. 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. Like Stevens, Crislip did not use "foreseeable zone of risk" as a test for the existence of duty, but simply discussed foreseeability as circumscribing the extent of the defendant's already-determined duty. 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.

2) McCain v. Florida Power: Building on Misconception.

The dictum about "foreseeable zone of risk" in the Kaisner decision, although unsupported by any previous authority, became the supporting authority for the application of a foreseeable-zone-of-risk "analysis" for determining legal duty in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992). 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.

The opinion in McCain has had a profound effect on all subsequent negligence law in Florida because of its adoption of the foreseeable-zone-of-risk test as evidenced in the following discussion:

The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader zone of risk that poses a general threat of harm to others. See Kaisner, 543 So. 2d at 735 (citing Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983)). The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred. 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. (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. However, precedent, public policy, and common sense dictate that this is not possible. Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. (15)

Actually, other jurisdictions do not recognize that a legal duty will arise "whenever a human endeavor creates a generalized and foreseeable risk of harm." That might explain why there are no citations following that assertion in the McCain opinion. Nor do other jurisdictions distinguish between foreseeability in relation to duty and foreseeability in relation to proximate cause in the way McCain does. Neither precedent, public policy, nor common sense seem to so dictate elsewhere.

Although the McCain court tries to legitimize the...