Borrack v. Reed
53 So.3d 1253, 2011 WL 611859, 2011 Fla. App. LEXIS 2247 (2011)
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Rule of Law:
A defendant's conduct, including an intentional prank, creates a legal duty of care under a negligence theory if it foreseeably creates a broader 'zone of risk' that poses a general threat of harm to others.
Facts:
- The plaintiff and defendant, who were dating, traveled to West Virginia for the plaintiff to meet the defendant's family.
- The defendant planned a prank to trick the plaintiff into jumping off a high cliff into a lake.
- While hiking to the top of the cliff, the plaintiff repeatedly told the defendant she was afraid and uncomfortable, but he refused to help her descend and encouraged her to continue.
- At the top of the cliff, the defendant jumped into the water below without the plaintiff's knowledge.
- When the plaintiff turned and could not find the defendant, she yelled to his nephew in the water below.
- The defendant's nephew, participating in the prank, told the plaintiff he did not know where the defendant was and that she should jump in to find him.
- Believing the defendant was in peril and in an effort to save him, the plaintiff jumped from the cliff into the water and was severely injured.
Procedural Posture:
- The plaintiff filed a complaint against the defendant in the Florida circuit court (trial court) alleging negligence.
- After amendments, the plaintiff filed a second amended complaint.
- The defendant filed a motion to dismiss the second amended complaint for failure to state a cause of action.
- The circuit court granted the defendant's motion to dismiss with prejudice, finding the complaint failed to establish that the defendant created a 'zone of risk'.
- The plaintiff, as appellant, appealed the dismissal to the Florida Fourth District Court of Appeal.
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Issue:
Does a defendant's conduct of playing a prank, which induces a plaintiff to jump from a high cliff out of fear for the defendant's safety, create a foreseeable 'zone of risk' sufficient to establish a legal duty of care for a negligence claim?
Opinions:
Majority - Gerber, J.
Yes, the defendant's conduct creates a foreseeable 'zone of risk' sufficient to establish a legal duty of care. Applying the test from McCain v. Florida Power Corp., the defendant’s conduct of luring the plaintiff to the top of a high cliff despite her expressed fear, and then tricking her into believing he was in peril, foreseeably created a broader 'zone of risk' that posed a general threat of harm. This alleged conduct goes beyond mere encouragement; it constitutes active pressure or coercion that induced her rescue attempt. The court rejected the defendant's argument that a prank must be an intentional tort, clarifying that negligence applies where conduct creates a foreseeable risk of harm, whereas an intentional tort requires that injury be 'substantially certain' to result, which was not the case here.
Concurring - May, J.
Yes, the plaintiff has sufficiently alleged the defendant created a foreseeable zone of risk under Florida law. However, the case presents a legal paradox because the plaintiff alleges 'trickery'—an intentional act—within a negligence claim. The defendant's conduct appears substantially certain to cause the plaintiff to jump, which sounds like an intentional tort. While other states' laws might lead to a different outcome, Florida's negligence law is drawn broadly enough to encompass this scenario by focusing on whether the defendant's conduct created a foreseeable zone of risk, establishing a legal duty. For that reason, the negligence claim is legally sufficient.
Analysis:
This decision reinforces the breadth of Florida's 'zone of risk' test for establishing a duty of care in negligence actions. It clarifies that intentional conduct, such as a prank involving trickery, can serve as the basis for a negligence claim so long as it creates a foreseeable risk of harm. The case distinguishes between mere encouragement and active coercion or trickery, making the latter a significant factor in creating a duty. This ruling is significant for future cases as it allows plaintiffs to frame claims based on intentional misconduct as negligence, which may have important implications for issues like insurance coverage, as the concurrence highlights.
