FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 13
CASES FROM THE WEEK OF MAR. 28, 2014

WHEN A PERSON’S CONDUCT CREATES A FORESEEABLE ZONE OF RISK THAT POSES A GENERAL THREAT OF HARM TO OTHERS, A LEGAL DUTY WILL BE RECOGNIZED–THERE ARE EXCEPTIONS TO THE RULE THAT ONE GENERALLY HAS NO LEGAL DUTY TO PREVENT THE MISCONDUCT OF THIRD PERSONS, WHICH GENERALLY INVOLVE CONTROL

Dorsey v. Reider, 39 Fla. L. Weekly S163 (Fla. March 27, 2014):

Three men were drinking at a bar and became intoxicated. The defendant became very boisterous and belligerent saying he wanted to fight everyone. The plaintiff finally told him he was “acting like an asshole,” stood up, and walked out. The defendant and his friend followed, with the defendant demanding to know why the plaintiff called him an asshole. Plaintiff ignored him and kept walking.

The plaintiff’s path took him between the defendant’s parked truck and an adjacent car. As the plaintiff walked between the vehicles, the defendant hustled around the other side of his truck and managed to trap the plaintiff between the truck bed of his truck and the adjacent car before the plaintiff was able to emerge from between the vehicles. The friend followed the plaintiff between the vehicles. The defendant continued to harass the plaintiff over what he said

Several minutes into the altercation, the plaintiff heard the truck’s door open behind him, turned, and saw the friend reach into the defendant’s truck and retrieve a tomahawk. The plaintiff then grabbed the defendant and attempted to push him to one side to escape, and all of a sudden after the two men grappled, the friend struck the plaintiff in the head with the tomahawk rendering him temporarily unconscious, and causing him serious injury.

The case went to trial and resulted in a significant final judgment for the plaintiff. The Third District reversed however. It found that there was no evidence that the defendant colluded with the friend, or knew that the friend had his tomahawk and would strike the plaintiff. Thus, the Third District determined there was no duty.

After accepting conflict with McCain, the court reiterated that McCain stands for the proposition that when a person’s conduct is such that it creates a foreseeable zone of risk posing a general threat of harm to others, a legal duty will ordinarily be recognized to ensure the conduct is carried out reasonably. The duty element of negligence focuses on whether the defendant’s conduct foreseeably creates a broader zone of risk that poses a general threat of harm to others, and is the minimal legal threshold for opening the courthouse doors.

The court concluded that the defendant’s conduct in blocking the plaintiff’s ability to escape from the escalating situation created a foreseeable zone of risk of posing a general threat of harm to others.

Upon reaching that conclusion, the court then turned to the question of whether the defendant’s duty to the plaintiff extended to injuries caused by the misconduct of a third person.

It noted that while generally, a party owes no legal duty to prevent the misconduct of third persons, there are exceptions, i.e., when the defendant is in actual or constructive control of either the instrumentality, the premises on which the tort was committed, or the tortfeasor.

The proper inquiry for reviewing whether a duty exists, is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred. The supreme court observed that the facts of the case clearly established that the defendant’s conduct created a broader zone of foreseeable risk to the plaintiff. The inquiry turned on whether the duty of care created by the conduct extended to the misconduct of the third party.

Ultimately, under the specific facts of the case, the supreme court concluded that the defendant had the ability to control access to the truck in which the tomahawk was located, and thus had both constructive control over the instrumentality and actual control over the area where the plaintiff was trapped.

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW BY ENTERING AN ORDER ALLOWING LIMITED POST-VERDICT INTERVIEW OF JURY FOREPERSON WHO HAD LEFT VOICE MAIL INTIMATING THAT A TEXT MESSAGE FROM ANOTHER JUROR SHOWED SOMETHING WAS WRONG — ALTHOUGH THE VOICE MESSAGE WAS VAGUE AND DEFENDANT’S MOTION FOR JUROR INTERVIEWS WAS NOT SUPPORTED BY AFFIDAVIT, A LIMITED IN CAMERA INQUIRY DID NOT INVADE THE SANCTITY OF THE JURORS’ DELIBERATIONS

Naugle v. Philip Morris, 39 Fla. L. Weekly D558 (Fla. 4th DCA March 19, 2014):

The plaintiff obtained a jury verdict for over $300 million dollars in damages against a tobacco company. The trial court remitted the damages to about $36 million. On appeal, the Fourth District remanded for a new trial on damages. The second jury then rendered a new verdict awarding about $11.2 million dollars in damages.

A week after the verdict, the trial court issued an order explaining that the jury foreman had left a voice mail in the judge’s office stating he had received a text from one of the jurors suggesting something was done wrong during the trial. In the message, the foreman asked to speak with the judge. The next day, Philip Morris filed an emergency motion to interview the jurors and preserve the text message. Plaintiff objected arguing that the motion was too speculative to require an interview. The trial judge ordered an in camera meeting with the foreperson ordering him to bring his cell phone so they could read the text message.

While the foreperson’s message did not establish any actual misconduct that could amount to an overt prejudicial act, it did intimate that in the foreperson’s view, a text message from another juror showed that something was done wrong.

The court agreed with plaintiff that the voice message was vague as to any alleged juror misconduct, and that the motion for juror interview was not supported by affidavit.

However, the trial court did not order a full-blown interview of the jury. Instead, the court ordered a limited inquiry to review the text message. Presumably, no further questions were to be asked if the text message did not meet the standard for ordering a juror interview

The court rejected plaintiff’s argument that the order would invade the privacy of the juror, because here the foreman directly contacted the judge’s office to raise his concerns, and the Fourth District concluded that the court did not depart from the essential requirements of law under the facts because the court had done nothing more than allow the juror to reveal the text message.

WHERE JURY HAD NOT BEEN SWORN, IT WAS A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO DENY THE STATE’S REQUEST TO USE REMAINING PEREMPTORY CHALLENGES AS BACK STRIKES, ALTHOUGH THE ORIGINAL JURY VENIRE HAD BEEN DISMISSED

State v. Page-Martin, 39 Fla. L. Weekly D606 (Fla. 2nd DCA March 21, 2014.

Best Regards,

Julie Littky-Rubin