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Foreseeable Zone of Risk: Confusing Foreseeability With Duty in Florida Negligence Law

Featured Article

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 foreseeable-zone-of-risk standard, there is no direct authority for it. 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.

3) Progeny of McCain: The Court as Doorman.

Since the McCain case, the Florida Supreme Court has utilized its new standard for duty in a variety of cases and, not surprisingly, invariably has found a duty to exist.17 This line of cases applying the McCain standard will be examined in the order in which decided. The examination reveals a pattern of the court’s using McCain to expand tort liability and to justify that expansion while avoiding a forthright and meaningful consideration of social and economic factors traditionally considered by the courts nationally in determining whether a legal duty exists. McCain has become a convenient device to avoid rigorous, straightforward analysis of difficult policy issues while satisfying the court majority’s apparent predilection to enhance the opportunity for recovery.
For example, in City of Pinellas Park v. Brown, 604 So. 2d 1222 (Fla. 1992), the majority on a deeply divided court seized upon its newly created foreseeable-zone-of-risk test to obviate direct consideration of whether the interests of the public in police pursuing and apprehending criminals outweighed the interests of the motoring public in safe highway travel. 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.

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. In other words, some substantial portion of the risk is being created by the police themselves, notwithstanding any contributory negligence of the person being chased. 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. 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

In Pate v. Threkel, 661 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. 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. In Pate, the obstacle was the requisite privity between the physician and the patient. After noting that “[i]n the past courts have held that in order to maintain a cause of action against a physician, privity must exist between the plaintiff and physician,”21 the court eschewed that precedent and adopted instead the rationale of cases involving other types of professionals, such as attorneys and engineers, suggesting that “lack of privity does not necessarily foreclose liability if a duty of care is otherwise established.”22 Finding McCain supplied such a legal duty whenever conduct involves risks, the court “conclude[d] that this analysis recognizing that privity is not always needed to establish liability should apply to the professional relationship between a patient’s health care provider and child.”23 The court asserted that its holding was “likewise in accord with McCain because under the duty alleged in this case, a patient’s children fall within the zone of foreseeable risk.”24 Like the Brown case, Pate extends liability to third persons with whom the defendant had no direct contact or transaction. 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.

In 1996, in Union Park Memorial Chapel v. Hutt, 670 So. 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. 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

The following year, McCain was employed by the court in Kitchen v. K Mart Corp., 697 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. 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

In answering this question affirmatively, the court found it necessary to distinguish both an earlier decision in which it had held that an automobile seller could not be held responsible to a third party injured when struck by the vehicle sold to an incompetent driver28 and a decision in which it found no liability for a social host who served alcohol to a minor later involved in an accident causing injury to a third party.29 McCain was again referenced to fortify the holding:

We hold that an action for negligent entrustment as defined under §390 of the Restatement is consistent with Florida public policy in protecting its citizens from the obvious danger of the placement of a firearm in the hands of an intoxicated person, as has already been recognized in the district courts in Florida. We further conclude that, in accord with our decisions in Kaisner and McCain, selling a firearm to an intoxicated person satisfies the minimal threshold legal requirement recognized by this Court, as necessary in order to bring a common law cause of action before a jury.30

Again invoking McCain, in Florida Power & Light v. Periera, 705 So. 2d 1359 (Fla. 1998), the court found a duty on the part of a power company to a motorcyclist unlawfully operating his motorcycle on a bicycle path when he struck a company guy wire. 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. The court found that it had conflict jurisdiction to review the decision of the Fourth DCA, which found a duty despite the motorcyclist’s violation of §316.1995 prohibiting driving any vehicle other than by human power upon a bicycle path.31 The statute was not an obstacle for the Florida Supreme Court, nor were any public policy considerations, such as whether the power company should have a duty to maintain its guywire so as to protect a motorcyclist illegally using a bicycle path.32

The next year, in Henderson v. Bowden, 737 So. 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. 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. Analyzed under the rationale in earlier decisions such as Trianon Park Condominium Association v. Hialeah, 468 So. 2d 912 (Fla. 1985), and Everton v. Willard, 468 So. 2d 936 (Fla. 1985), the court would have had to confront the absence of a common law duty for law enforcement activities. 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.

A year later, in Nova S.E. U., Inc. v. Gross, 758 So. 2d 86 (Fla. 2000), the court imposed a duty upon a university to adult students not to assign them to an internship site at an “unreasonably dangerous” location. 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. The university argued that no special relationship existed between the school and the adult student that would give rise to a supervisory duty such as that which the Florida Supreme Court had recognized as necessary in an earlier case.35 But, in a unanimous36 opinion the Florida Supreme Court concluded that the university could be found liable for the assignment because the assignment created a foreseeable zone of risk:

We find this fundamental principle of tort law is equally applicable to this case. 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. 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. Moreover, under well-established tort law, every legal entity is not charged with a duty of acting as a reasonably prudent person under like or similar circumstances.38 The existence of a duty of reasonable care is not a virtual foregone conclusion, as the court in Nova suggests, but a matter to be determined on the basis of a given set of facts and a balancing of competing policy considerations. Only where the risk of the activity is unreasonable and the social or economic utility does not merit insulating the conduct from liability should a duty arise.39

In 2001, the court decided Whitt v. Silverman, 788 So. 2d 220 (Fla. 2001), in which the majority framed the issue in the following terms:

At issue in this case is whether McCain’s foreseeability analysis applies in determining whether a landowner operating a commercial gas station owes a duty of care to persons who may be injured as a result of natural conditions or landscaping on the landowner’s property, but where the injury actually occurs off the property.40

After discussing the established rule of law which would have prevented recovery and characterizing it disparagingly as “the agrarian rule,”41 the court noted:

In contrast to the rather narrow focus of the so-called agrarian rule, this Court in McCain attempted to restate the general principles of negligence law and clarify the role that foreseeability plays in evaluating the duty and proximate cause elements of a common law negligence claim.42

Thus, the court portrayed its McCain case as enlightened and progressive and “the agrarian rule” as myopic and outdated. It buttressed what was essentially a policy decision to jettison the protection landowners had enjoyed from negligence actions by motorists on roads adjacent to their land by references to “other courts [which have] sometimes applied the same McCain-like reasoning.”43 However, examination of the authorities cited reveals that they do not apply McCain-like reasoning or its foreseeable-zone-of-risk analysis.

The following now-familiar refrain was offered in consolation to landowners faced with the prospect of increased liability:

[A]s has been noted quite often, the imposition of a duty is nothing more than a threshold requirement that if satisfied, merely opens the courthouse doors. McCain, 593 So. 2d at 502. Once this duty is satisfied, an injured party must still prove the remaining elements of a negligence claim, including the much more specific proximate cause requirement.44

Actually, the imposition of a legal duty is more than a threshold requirement for getting into court; it is a formal judicial recognition of a legal obligation to conform to a particular standard of conduct toward another. That obligation may have social or economic consequences far beyond its violation resulting in access to the court. 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.

In its latest decisions relying on McCain, in Clay Electric Cooperative, Inc. v. Johnson Inc., 2003 WL 22966277 (Nos. SC01-1955, SCO1-1956) ( December 18, 2003), and Ivan Martinez v. Florida Power and Light Company, 2003 WL 22964568 (No. 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.

The majority in both cases adhered to the simplistic foreseeable-zone-of-risk analysis to yield the desired result of a duty on the part of the utilities to the deceased juveniles.45 However, unlike the preceding decisions, these cases contained a well-reasoned dissent,46 which was critical of the majority’s blind reliance on the foreseeable zone-of-risk standard to the exclusion of “policy considerations” which would “militate against imposing a duty on utility companies in these circumstances.”47

Although the dissent is a minority voice on a court dominated by a virtually homogeneous opposing view, it is an articulate expression of a perspective that is anchored securely in legal precedent and scholarship. 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

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. 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

Yet, the Florida Supreme Court has elevated foreseeability to the sole factor creating duty, thus providing not an analytical framework for determining the existence or nonexistence of a legal duty but a simplistic and invalid equation isolating one of the many factors traditionally considered by the courts and equating that single factor with duty. In doing so, the court not only confuses the concepts but also avoids its responsibility as a gatekeeper to make the public policy determination of whether a legal duty should exist in light of all the relevant factors bearing on the relationship of the parties including not only the foreseeability of injury, but also economic and social factors. 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. If the court is to establish new legal duties not recognized in prior case law or imposed by statute, it should not mask its policymaking role by ostensive reliance on an unsound, unorthodox legal standard such as foreseeable-zone-of-risk. 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.

The McCain test conveniently supplies a justification for what has become a veiled, unremitting, ideologically driven expansion of tort liability in this state. The consequence of applying this convenient McCain fiction to date is apparent in unprecedented liability to third parties for government, utilities, firearms retailers, physicians and other professionals, and landowners. The foreseeable-zone-of-risk standard has been used in support of bypassing the public duty doctrine, circumventing the requirements of privity or special relationships with professionals, overcoming statutory protections of retailers, trumping the “agrarian” rule, which protects landowners from liability for off-premises injuries, and subjecting utilities to third-party tort liability they would never face in the majority of states.

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 should analyze the issues so as to take the responsibility for the policy decision that a legal duty should exist rather than apply a contrived, mechanical formula which will dictate automatically that a such duty does exist. 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. q

1 See 57A. Am. Jur. 2d Negligence §78, and 38 Fla. Jur. 2d Negligence §16 and the authorities cited therein.
2 This article does not address duties which may arise solely from sources such as legislative enactments or administrative regulations. Rather, the duties discussed here have been found to arise from the general facts of the cases. See McCain v. Florida Power, 593 So. 2d 500, 503 n.2 (Fla. 1992), and Restatement (Second) of Torts §285 (1965) discussing sources of duty.
3 57A Am. Jur. 2d Negligence §87 and the authorities cited therein. 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. 1971).
5 57A Am Jur. 2d Negligence §136, p. 198.
6 But see Fuller v. Pacheco, 21 P.3d 74 (OK 2001). Several Oklahoma courts cite Florida law on the same foreseeable-zone-of-risk test for duty, but upon close examination do not use foreseeability alone as a standard for legal duty, as Florida does.
7 McCain v. Florida Power, 593 So. 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. 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. Even the phrase “foreseeable zone of risk” does not appear in surveying the negligence law of most other jurisdictions and is confusing, i.e., the adjective “foreseeable” modifies the noun “zone” rather than “risk,” yet “zone” is not a term or concept traditionally applied or defined in the context of scholarly discussions of foreseeability in relation to duty. See, however, 57A Am. Jur. 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.
8 Kaisner, 543 So. 2d at 733.
9 Id. at 737. 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.
10 Id. at 735–36.
11 Stevens v. Jefferson, 436 So. 2d 33 (Fla. 1983)
12 Id. at 35.
13 Crislip v. Holland, 401 So. 2d 1115, 1117 (Fla. 4th D.C.A. 1981). 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. It is inconsistent with the notion that foreseeability is the only factor to be considered in determining whether a duty exists.
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. The vague standard has been applied to supplant more narrow traditional rules for defining duty and thereby expand liability not only in the case of public entities, and corporations, but with regard to the general public as well.
15 McCain, 593 So. 2d at 502–03.
16 Id. at 502.
17 The 10 Florida Supreme Court cases surveyed in this section of the article are those in which the court expressly has based its holding at least in part upon McCain. They demonstrate how application of McCain has invariably resulted in the imposition of a legal duty. There are other cases in which the court has referenced McCain, but the holdings do not rest upon an application of the McCain test for duty. See, e.g., Springtree Properties, Inc. v. Hammond, 692 So. 2d 164, 166 (Fla. 1997); Owens v. Publix Supermarkets, 802 So. 2d 315, 330 (Fla. 2001); Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002); Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002); Gracey v. Eaker, 837 So. 2d 348, 359 (Fla. 2002) (Pariente, J. concurring); and Rowell v. Holt, 850 So. 2d 474, 482 (Fla. 2003) (Parienti, J. specially concurring). Interestingly, these decisions, like the cases examined in this article, largely favor exposure of the defendants to potential tort liability.
18 Brown, 604 So. 2d at 1224-1225.
19 Id. at 1228 (Overton, J. dissenting).
20 See William N. Drake, Jr., and Thomas A. Bustin, Government Tort Liability in Florida: A Tangled Web, 77 Fla. B.J. 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. 469, 484 (2003) (examining the status of the public duty doctrine in Florida and nationally.)
21 Pate, 661 So. 2d at 281.
22 Id. Interestingly, the Florida Supreme Court case cited in support of this proposition, First Florida Bank, N.A. v. Max Mitchell & Co., 558 So. 2d 9 (Fla. 1990), involved an accountant’s liability to third parties who he personally induced to borrow money from his bank client by supplying false information to the third parties. The accountant’s conduct was actively and directly to supply the injured parties with false information upon which he knew they would rely. That conduct was covered by §552, Restatement (Second) of Torts (1976) and was in no way analogous to the doctor’s professional conduct in the Pate case.
23 Id. at 282.
24 Id. at 282.
25 In Clay Electric Cooperative, Inc. v. Johnson Inc.,2003 WL 22966277, __So. 2d __ (Nos. SC01-1955, SCO1-1956) ( December 18, 2003), and Ivan Martinez v. Florida Power and Light Company, 2003 WL 22964568, __So. 2d. __ (No. SC01-1505) (December 18, 2003), Justice Shaw exhumes this doctrine, which he dubs the “undertaker doctrine” and predicates liability partially upon it, but, for the reasons expressed in the dissent of Justice Cantero, the doctrine, while not defunct, is of limited application and inapposite in the factual setting of those cases.
26 See Union Park Memorial Chapel, 670 So. 2d at 67.
27 Kitchen, 697 So. 2d at 1202.
28 Horne v. Vic Potamkin Chevorolet, Inc., 533 So. 2d 261 (Fla. 1988).
29 Bankston v. Brennan, 507 So. 2d 1385 (Fla. 1987).
30 Kitchen, 697 So. 2d at 1208. As in the Union Park Memorial Chapel case, the court seems uncomfortable simply basing its holding on the provision in the Restatement (Second) of Torts on negligent entrustment, but must reinforce its rationale by reference to McCain.
31 The district court in Periera v. Florida Power & Light Company, 680 So. 2d 617, 618 (Fla. 4th D.C.A. 1996), did not apply McCain in reaching its decision. The rationale of the district court was simply that the violation of a statute such as the bike path statute is merely evidence of negligence. 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, 626 So. 2d 1008 (Fla. 1st D.C.A. 1993), rev. den., 639 So. 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 Powell case did make reference to the McCain case in finding no duty and the Florida Supreme Court denied review.
32 The motorcyclist was also DUI and riding at night without lights according to the district court opinion.
33 See supra note 20 regarding the public duty doctrine.
34 Henderson, 737 So. 2d at 537.
35 Nova, 758 So. 2d at 88; Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982).
36 Justice Anstead recused himself.
37 Nova, 758 So. 2d at 90.
38 See W. Prosser, Handbook of the Law of Torts, §53 at 324-326 (4th ed. 1971). Negligence is not “in the air” and there is no duty of care with regard to all conduct.
39 See 57A. Am. Jur. 2d Negligence §78, and 38 Fla. Jur. 2d Negligence §16 and the authorities cited therein; Restatement (Second) of Torts §285 (1965), discussing sources of duty, and §291, discussing what conduct creates an unreasonable risk of harm.
40 Whitt, 788 So. 2d at 212.
41 The Whitt 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.
42 Whitt, 788 So. 2d at 216.
43 Id. at 220.
44 Id. at 221.
45 In addition, the majority applied “the undertaker’s doctrine,” §324 A, Restatement (Second) of Torts (1965), as it had in Union Park Memorial Chapel, 670 So. 2d 64. But for the reasons discussed in Justice Cantero’s dissent, the doctrine was not applicable to the facts of the Clay and Martinez cases, principally because the conduct of the utilities did not increase risks to the decedents nor induce reliance upon the “undertaking” as, arguably, it had in Hutt.
46 Justice Cantero with which Justice Wells concurred.
47 Clay Electric Cooperative, Inc. Inc.2003 WL 22966277, p.16, __So. 2d __ (Nos. SC01-1955, SCO1-1956) (Cantero, J., dissenting).
48 W. Prosser, Handbook of the Law of Torts, §53 at 324–26 (4th ed. 1971). 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:. . . ” William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953), and in that same article he specifically rejected making that determination on the basis of foreseeability alone.
49 William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 16 (1953).
50 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. See, e.g., the remarks of Justice Shaw in Clay Electric Cooperative, Inc.2003 WL 22966277, p.7, __So. 2d __ (Nos. SC01-1955, SCO1-1956). Despite the majority’s demure protestations to the contrary about policymaking (in the form of utility rate-setting) belonging to the legislature in Clay, the Florida Supreme Court has shown little reluctance to promulgate policy by recognizing new legal duties, as amply demonstrated by their application of McCain in the cases surveyed in this article.
If, as the majority in Clay opines, there is a reluctance to “usurp the legislative prerogative” by making public policy, this should be reflected in a restrained court less inclined to recognize new duties, which is a pure exercise in policymaking. 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. In the 10 cases decided since McCain, the court has never failed to embrace an argument for the recognition of a new legal duty. An even-handed application of a fair standard for duty should be expected to result occasionally in the court finding no duty.

William N. Drake, Jr., received his J.D. from the University of Florida in 1975 and since his graduation has been an assistant city attorney with the St. Petersburg City Attorney’s Office, concentrating in civil litigation. He has been board certified in civil trial law since 1984.