Premises liability.

• Author: Henry, David W.
• Position: Letters - Letter to the editor

I read with interest the well-written article from Wilton H. Strickland discussing premises liability (December 2009). Liability for guest attacks is a tortured body of law lacking hard science and mostly the product of result-oriented jurisprudence. The jurisprudential problems flow from two disparate, but rarely discussed concepts. For centuries, under the common law, any individual or business had the right to expect that other persons would act lawfully. That is to say, as a matter of law, criminal activity is not "foreseeable" in the legal or scientifically understood sense. One is legally entitled to assume others will act lawfully. This argues against any legal "duty" to prevent attacks.

The second and most compelling attack to be had on these negligence cases stems from the venerable Palsgraff case, which modern judges and attorneys fail to recognize or perhaps ignore. Palsgraff was a "no duty owed" case which has been effectively overruled or at least gutted beyond recognition. In the case, the court held there was no duty in the first instance to prevent the accident to Mrs. Palsgraff (the explosion). If Palsgraff is the law, this should mean (compel) that if doctrinally and intellectually honest, most guest attack cases be resolved on a motion to dismiss and not shuffled beyond summary judgment under the rubric that foreseeability is a "jury question." As explained in McCain v. Florida Power, duty is a threshold legal issue and purely a question of law in the first instance. Echoes of Palsgraff are heard in the cryptic, but correct reasoning of Murray v. Osenton, 126 So. 2d 603 (Fla. 2d DCA 1961), short on discussion but long on logic. This is a...