Last Thursday (3/27/2014), the Florida Supreme Court rendered an important decision regarding the duty to prevent harm by reason of the misconduct of a third person.
Generally speaking, a person does not owe a duty to prevent someone else from injuring another person. For example, the law does not require that you step in if you see someone assaulting another person.
The facts of the Supreme Court case; however, are intriguing. In that case, three men were at a bar drinking to the point of intoxication. One of the men, Dennis Dorsey, was critical of Robert Reider’s boisterous behavior and he left the bar. Mr. Reider, and his freind Mr. Noordhoek, followed and trapped Mr. Dorsey between two vehicles. Mr. Noordhoek then retrieved a tomahawk from one of the vehicles. Mr. Reider prevented Mr. Dorsey from leaving, whereupon Mr. Noordhoek struck Mr. Dorsey in the head with the tomahawk, causing personal injury.
A trial was held and Mr. Dorsey was awarded in excess of $1,500,000.00 against Mr. Reider. In all likelihood, Mr. Reider had homeowner’s insurance that would provide coverage for the personal injury claims against Mr. Reider. Mr. Reider appealed and the Third District Court of Appeal reversed the trial court and held that Mr. Reider owed no duty to Mr. Dorsey to prevent Mr. Noordhoek’s actions.
The Florida Supreme Court noted the exceptions to the general rule that a person does not have a duty to prevent injury by a third party. Those exceptions provide for a duty where the defendant is in control of: the dangerous instrumentality (the tomahawk); the premises on which the tort occurred (the bar’s parking lot); or the tortfeasor (Mr. Noordhoek). Since Mr. Reider was not in control of any of these three things, the appellate court ruled he had no duty to prevent Mr. Noordhoek’s attack with the tomahawk.
The appellate court’s result seems harsh and, frankly, absurd. Mr. Reider initiated a physical encounter and prevented Mr. Dorsey from being able to leave. While Mr. Reider may not have known Mr. Noordhoek was going to engage in such a violent attack, he had to know some degree of injury to Mr. Reider was possible at the hands of Mr. Noordhoek as the confrontation was certainly not friendly in nature.
The Florida Supreme Court referred to another exception that applies when a defendant creates a foreseeable zone of risk to someone. When this occurs the defendant has a legal duty to minimize the risk. Previously, the appellate court held that this exception only applies when the third person’s (Noordhoek’s) actions occur with such frequency that it can be expected to occur again.
This exception is commonly seen in injury cases involving crimes that occur at a shopping center, hotel, bar or apartment complex. In such cases, the reoccurring nature of criminal attacks on patrons creates a duty on the part of the business owner to take measures to increase security. Since there was no evidence that Mr. Reider was aware of any prior aggression by Noordhoek, the appellate court held that this exception did not apply.
The Supreme Court clarified that the zone of risk analysis only required that some degree of harm to Mr. Dorsey was foreseeable and the exception did not require that Reider was aware that Noordhoek was likely to strike Mr. Dorsey with a tomahawk. The Supreme Court got it right as Mr. Dorsey was prevented from leaving by Mr. Reider and Mr. Reider certainly did not do this with good intentions, despite the fact that Mr. Reider probably did not know that Noordhoek was going to engage in such brutality.
If you have any questions about this blog or if you have a case where you were injured at a hotel, bar, shopping center or apartment complex by reason of foreseeable criminal acts, please contact a Jacksonville premises liability lawyer for a free consultation.