A night at the bar with friends does not typically end with someone wielding a tomahawk, but as you will see below, the facts of the Supreme Court of Florida’s decision in Dorsey v. Reider are not like those of a typical personal injury case.
In Dorsey, the plaintiff was injured at the conclusion of a night of imbibing with the defendant and another man with whom the defendant was acquainted at a bar in Pinecrest, Florida. On that night, the defendant, who was the friend of the plaintiff in this case, became increasingly belligerent and was threatening to fight others. In light of his friend’s conduct, the plaintiff used a few choice words to tell the defendant his behavior was obnoxious and proceeded to leave. The defendant and his friend followed. As the plaintiff walked through the parking lot, his path took him between the defendant’s truck and an adjacent vehicle. The defendant ran to the other side while the plaintiff was passing between the vehicles and blocked the plaintiff’s path as the acquaintance blocked him in on the other side. An argument ensued, which lasted for several minutes before the plaintiff heard the truck door open and turned to find that the acquaintance had procured a tomahawk from the truck. The plaintiff then asked the defendant, “What is this?” The defendant did not respond, and the plaintiff then attempted to push the defendant aside in order to escape. After about 15 seconds of struggle, the plaintiff was struck in the head with the tomahawk, which rendered him unconscious. The defendant and the acquaintance then fled. Sometime thereafter, the plaintiff awoke and drove himself to the hospital. As a result of the attack, the plaintiff suffered a variety of serious injuries and continues to suffer from blurred vision, dizziness, and chronic headaches.
Unsurprisingly, the plaintiff brought suit for his injuries. Following a jury trial, the plaintiff was awarded over 1.5 million dollars in damages. On appeal, the Florida Third Circuit Court of Appeal reversed the trial court decision. The Court of Appeal determined that the defendant, who did not actually strike the victim with the tomahawk, did not owe a duty of care to the plaintiff in this case, since there was “no evidence [the defendant] “colluded with [the acquaintance] or knew that [the acquaintance] had the tomahawk and would strike.” Reider v. Dorsey, 98 So.3d 1228 (Fla. 3d DCA 2012). The Supreme Court of Florida, however, determined that this holding was in error.
First, the Supreme Court noted that a duty of care may arise from the particular facts of a case, when the conduct in question creates a “foreseeable zone of risk posing a general threat of harm to others.” As long as a foreseeable zone of risk was more likely than not created by the conduct in question, the court should determine that a duty of care exists. In addition, the court noted the difference between the scope of foreseeability that is necessary for establishing that a duty of care exists and the scope of foreseeability necessary for establishing proximate cause. Foreseeability for establishing a duty of care does not require that one show the zone of danger foreseeably led to the particular injury at issue, as is necessary for establishing proximate cause, but merely that the conduct created a general zone of foreseeable danger of harm to others.
With respect to the defendant’s actions, the Supreme Court found that, although a person does not generally owe a duty of care to prevent harm caused by the misconduct of a third party, a duty may still arise when the person has control over the instrumentality that caused the harm, the premises where the harm occurred, or the third-party tortfeasor. The Supreme Court, looking at the totality of the circumstances, found that the defendant’s conduct removed this case from the general rule. The court noted that defendant had left the tomahawk in his unlocked vehicle and blocked the plaintiff between the cars, which demonstrated constructive control over both the instrumentality causing injury and the area where the victim was injured. Furthermore, the court emphasized that a finding of duty did not require that the defendant have advanced knowledge of the injury to be caused or that the particular injury be foreseeable. Rather, all that was necessary was that by blocking the plaintiff in the area, under the circumstances present, the defendant created a foreseeable general zone of danger.
Given that the question of whether a “duty of care” exists is a legal one for a judge rather than a jury to determine, the Supreme Court of Florida’s broad reading for when a duty of care arises stands as a major victory for litigants who hope to have the facts of their case reviewed by a group of their peers. Given the amount of damages that may stand in the balance, you should always consult an attorney experienced in personal injury litigation if you have been harmed by the acts of another. If you’re in this situation, Frankl and Kominisky’s South Florida injury attorneys have the sort of litigation and personal injury experience you need. We have the knowledge your suit demands and are prepared to hear your story. For a free case consultation, click here or call 1-855-800-8000.
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