39 Fla. L. Weekly D391a
Wrongful death — Torts — Shooting — Liability for criminal
acts of third party — Foreseeability — Action arising out of incident in which
defendants’ 35-year-old son shot and killed family members at Thanksgiving
gathering to which defendants had invited son without informing hosts or other
family members, although defendants were aware that son had made threats of
violence against those in attendance — Circuit court did not err in dismissing
complaints for failure to state cause of action after concluding that defendants
owed no legal duty to their family members in this case — There was no special
relationship between defendants and plaintiffs that gave rise to legal duty to
protect them from son’s conduct, and defendants were not in actual or
constructive control of firearm used by son to commit tort or premises on which
incident occurred — Defendants were not legally responsible for conduct of
emancipated adult child — Although they financially provided for him and could
control whether to invite him to family gatherings, this was insufficient to
generate a legal duty on their part to protect those attending dinner from son
— In Florida, Section 319 of Restatement (Second) of Torts, which imputes a
“special relationship” when one takes charge of third person whom he knows or
should know to be likely to cause bodily harm to others if not controlled,
typically has been applied to persons having someone committed to their legal
custody, and while depraved nature of son’s mind was unquestioned, there were no
allegations that defendants exhibited sufficient control over son’s actions so
as to place him within functional equivalent of their “legal custody” —
Discussion of plaintiffs’ contention that issue of legal duty is solely
determined by whether a defendant’s conduct foreseeably created broader zone of
risk that poses general threat of harm to others, untethered to any
consideration of special relationship or control; Restatement (Second) of Torts
section 302B, which recognizes possibility of duty to guard another person
against foreseeable risk of harm caused by third person; and Florida public
policy militating for finding of no legal duty, even if foreseeability analysis
leads to conclusion that shootings were foreseeable result of defendants’
conduct in inviting deeply troubled son to family gathering, knowing of son’s
difficulties with family members
acts of third party — Foreseeability — Action arising out of incident in which
defendants’ 35-year-old son shot and killed family members at Thanksgiving
gathering to which defendants had invited son without informing hosts or other
family members, although defendants were aware that son had made threats of
violence against those in attendance — Circuit court did not err in dismissing
complaints for failure to state cause of action after concluding that defendants
owed no legal duty to their family members in this case — There was no special
relationship between defendants and plaintiffs that gave rise to legal duty to
protect them from son’s conduct, and defendants were not in actual or
constructive control of firearm used by son to commit tort or premises on which
incident occurred — Defendants were not legally responsible for conduct of
emancipated adult child — Although they financially provided for him and could
control whether to invite him to family gatherings, this was insufficient to
generate a legal duty on their part to protect those attending dinner from son
— In Florida, Section 319 of Restatement (Second) of Torts, which imputes a
“special relationship” when one takes charge of third person whom he knows or
should know to be likely to cause bodily harm to others if not controlled,
typically has been applied to persons having someone committed to their legal
custody, and while depraved nature of son’s mind was unquestioned, there were no
allegations that defendants exhibited sufficient control over son’s actions so
as to place him within functional equivalent of their “legal custody” —
Discussion of plaintiffs’ contention that issue of legal duty is solely
determined by whether a defendant’s conduct foreseeably created broader zone of
risk that poses general threat of harm to others, untethered to any
consideration of special relationship or control; Restatement (Second) of Torts
section 302B, which recognizes possibility of duty to guard another person
against foreseeable risk of harm caused by third person; and Florida public
policy militating for finding of no legal duty, even if foreseeability analysis
leads to conclusion that shootings were foreseeable result of defendants’
conduct in inviting deeply troubled son to family gathering, knowing of son’s
difficulties with family members
PATRICK WELLS KNIGHT, individually and as Personal Representative of the
Estate of LISA MERHIGE KNIGHT, MURIEL SITTON and JIMMY SITTON, as Co-Personal
Representatives of the Estate of MAKAYLA SITTON, and ANTOINE JOSEPH, M.D., as
Personal Representative of the Estate of RAYMONDE JOSEPH, Appellants, v. MICHAEL
G. MERHIGE and CAROLE MERHIGE, Appellees. 4th District. Case Nos. 4D12-3701 and
4D12-3703. February 19, 2014. Consolidated appeals from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Meenu Sasser, Judge; L.T.
Case No. 502011CA014473XXXXMB-AI. Counsel: Arnold R. Ginsberg of Arnold R.
Ginsberg, P.A., Miami, and H. Joshua Diamond of H. Joshua Diamond, P.A., Coral
Gables, for appellants Patrick Wells Knight, individually and as personal
representative of the estate of Lisa Merhige Knight. Julie H. Littky-Rubin of
Clark, Fountain, LaVista, Prather, Keen & Littky-Rubin, LLP, West Palm
Beach, for appellants Muriel Sitton and Jimmy Sitton, as co-personal
representatives of the estate of Makayla Sitton, and Antoine Joseph, M.D., as
personal representative of the estate of Raymonde Joseph. Daniel M. Bachi and
Dina M. Contri of Sellars, Marion & Bachi, P.A., West Palm Beach, for
appellees.
Estate of LISA MERHIGE KNIGHT, MURIEL SITTON and JIMMY SITTON, as Co-Personal
Representatives of the Estate of MAKAYLA SITTON, and ANTOINE JOSEPH, M.D., as
Personal Representative of the Estate of RAYMONDE JOSEPH, Appellants, v. MICHAEL
G. MERHIGE and CAROLE MERHIGE, Appellees. 4th District. Case Nos. 4D12-3701 and
4D12-3703. February 19, 2014. Consolidated appeals from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Meenu Sasser, Judge; L.T.
Case No. 502011CA014473XXXXMB-AI. Counsel: Arnold R. Ginsberg of Arnold R.
Ginsberg, P.A., Miami, and H. Joshua Diamond of H. Joshua Diamond, P.A., Coral
Gables, for appellants Patrick Wells Knight, individually and as personal
representative of the estate of Lisa Merhige Knight. Julie H. Littky-Rubin of
Clark, Fountain, LaVista, Prather, Keen & Littky-Rubin, LLP, West Palm
Beach, for appellants Muriel Sitton and Jimmy Sitton, as co-personal
representatives of the estate of Makayla Sitton, and Antoine Joseph, M.D., as
personal representative of the estate of Raymonde Joseph. Daniel M. Bachi and
Dina M. Contri of Sellars, Marion & Bachi, P.A., West Palm Beach, for
appellees.
(Gross, J.) These appeals arise from a tragic event — Michael and Carole
Merhige’s 35-year-old son, Paul, shot and killed family members at a
Thanksgiving gathering in Jupiter, Florida. Following the shooting,
representatives of the victims’ estates sued the Merhiges, collectively alleging
negligence.1 The circuit court dismissed
the complaints for failure to state a cause of action. We affirm the ruling of
the circuit court that the Merhiges owed no legal duty to their family members
in this case, so that an essential element of a negligence cause of action is
missing.
Merhige’s 35-year-old son, Paul, shot and killed family members at a
Thanksgiving gathering in Jupiter, Florida. Following the shooting,
representatives of the victims’ estates sued the Merhiges, collectively alleging
negligence.1 The circuit court dismissed
the complaints for failure to state a cause of action. We affirm the ruling of
the circuit court that the Merhiges owed no legal duty to their family members
in this case, so that an essential element of a negligence cause of action is
missing.
In reviewing an appeal from an order granting a motion to dismiss for failure
to state a cause of action, we accept the factual allegations of the operative
complaints as true and consider them in the light most favorable to the
plaintiffs/appellants. See Fla. R. Civ. P. 1.140(b)(6); Seminole Tribe
of Fla. v. Times Pub. Co., 780 So. 2d 310, 311-12 (Fla. 4th DCA 2001).
to state a cause of action, we accept the factual allegations of the operative
complaints as true and consider them in the light most favorable to the
plaintiffs/appellants. See Fla. R. Civ. P. 1.140(b)(6); Seminole Tribe
of Fla. v. Times Pub. Co., 780 So. 2d 310, 311-12 (Fla. 4th DCA 2001).
On November 26, 2009, appellants Muriel and Jimmy Sitton hosted a yearly
Thanksgiving dinner for sixteen family members. While the Merhiges regularly
attended the gathering, their son Paul did not; in fact, just one year prior,
the event’s then-host, Dr. Antoine Joseph, told the Merhiges that he would
cancel the dinner if they brought their son with them.
Thanksgiving dinner for sixteen family members. While the Merhiges regularly
attended the gathering, their son Paul did not; in fact, just one year prior,
the event’s then-host, Dr. Antoine Joseph, told the Merhiges that he would
cancel the dinner if they brought their son with them.
Such intrafamily strife derived from Paul’s history of irrational violence.
By 1994, when Paul was twenty years old, he began showing signs of “chronic
violence,” including “display[s of] aggressive behavior” and “social
disfunction.” He performed “extremely violent and aggressive acts” and
communicated “threats of violence . . . toward members of his immediate and
extended family.” Two years later, as Paul’s “violent and aggressive behavior”
continued to manifest, he was deemed “legally disabled.”
By 1994, when Paul was twenty years old, he began showing signs of “chronic
violence,” including “display[s of] aggressive behavior” and “social
disfunction.” He performed “extremely violent and aggressive acts” and
communicated “threats of violence . . . toward members of his immediate and
extended family.” Two years later, as Paul’s “violent and aggressive behavior”
continued to manifest, he was deemed “legally disabled.”
From 1994 through 2006, Paul lived with the Merhiges in their home and became
financially dependent upon them. During this period, law enforcement officers
were called to the Merhiges’ residence on at least ten separate occasions, each
time the result of Paul’s “extremely violent and aggressive acts and expressed
threats of violence.” Many of these encounters with law enforcement included
incidents where Paul “verbally threatened violence against another, physically
attacked another, discharged or threatened to discharge a firearm, [and] refused
to take his prescribed psychotropic medications.”
financially dependent upon them. During this period, law enforcement officers
were called to the Merhiges’ residence on at least ten separate occasions, each
time the result of Paul’s “extremely violent and aggressive acts and expressed
threats of violence.” Many of these encounters with law enforcement included
incidents where Paul “verbally threatened violence against another, physically
attacked another, discharged or threatened to discharge a firearm, [and] refused
to take his prescribed psychotropic medications.”
Paul’s inner turmoil boiled over to such an extent that he was involuntarily
committed under Florida’s Baker Act three times. In 1999, he attempted suicide
by shooting himself in the chest.
committed under Florida’s Baker Act three times. In 1999, he attempted suicide
by shooting himself in the chest.
An aspect of Paul’s hostility was his repeated acts of actual or threatened
violence against certain family members. Notably, Paul felt a great “hatred and
grudge” toward his uncle, appellant Dr. Joseph, on the deranged belief that Dr.
Joseph “somehow caused him illness, injury or damage.” Similarly, Paul “harbored
deep resentment and jealousy” toward his sisters, resulting in repeated episodes
of violence so significant that one of his sisters obtained a restraining order
against him, although it was later revoked.2
violence against certain family members. Notably, Paul felt a great “hatred and
grudge” toward his uncle, appellant Dr. Joseph, on the deranged belief that Dr.
Joseph “somehow caused him illness, injury or damage.” Similarly, Paul “harbored
deep resentment and jealousy” toward his sisters, resulting in repeated episodes
of violence so significant that one of his sisters obtained a restraining order
against him, although it was later revoked.2
Due to Paul’s propensity for violence, the Merhiges “supervised, controlled,
directed and managed the manner in which [Paul] lived, including . . . providing
for and controlling [Paul’s] accommodations, mental health treatment,
transportation, . . . and available spending money.” Nevertheless, despite
knowing of Paul’s deficiencies and his previous suicide attempt, the Merhiges
did nothing to prevent him from purchasing firearms with the money they provided
for him.
directed and managed the manner in which [Paul] lived, including . . . providing
for and controlling [Paul’s] accommodations, mental health treatment,
transportation, . . . and available spending money.” Nevertheless, despite
knowing of Paul’s deficiencies and his previous suicide attempt, the Merhiges
did nothing to prevent him from purchasing firearms with the money they provided
for him.
Because of Paul’s behavior, the Merhiges, in early 2009, “excluded” Paul from
their home and procured a condominium unit for him in Miami. In the ensuing
months, Paul “became extremely reclusive, avoiding contact with others and
refusing” to allow anyone other than a housekeeper to enter the condominium. The
housekeeper monitored Paul’s actions and reported to the Merhiges that Paul had
ceased his mental health treatment and had otherwise stopped taking his “heavy
doses of prescribed medication.”
their home and procured a condominium unit for him in Miami. In the ensuing
months, Paul “became extremely reclusive, avoiding contact with others and
refusing” to allow anyone other than a housekeeper to enter the condominium. The
housekeeper monitored Paul’s actions and reported to the Merhiges that Paul had
ceased his mental health treatment and had otherwise stopped taking his “heavy
doses of prescribed medication.”
Despite Paul’s recent reclusiveness, his well-documented history of violence,
and the rejection of his company just one year prior, the Merhiges invited their
son to the Sittons’ Thanksgiving dinner without warning the hosts or Dr. Joseph.
Upon being told of the event, Paul expressed interest and repeatedly asked for
the party’s details, including who would be in attendance and when everyone
would be leaving. Specifically, Paul asked whether his sisters and his uncle,
Dr. Joseph, would be attending.
and the rejection of his company just one year prior, the Merhiges invited their
son to the Sittons’ Thanksgiving dinner without warning the hosts or Dr. Joseph.
Upon being told of the event, Paul expressed interest and repeatedly asked for
the party’s details, including who would be in attendance and when everyone
would be leaving. Specifically, Paul asked whether his sisters and his uncle,
Dr. Joseph, would be attending.
In the moments before the Thanksgiving dinner, appellee Carole Merhige
expressed concern regarding Paul’s attendance. In one instance, she told an
unnamed witness that she hoped Paul “would not kill everyone” at the dinner
party. Likewise, she told her daughter, Lisa, “I hope he [Paul] doesn’t come and
kill us all tonight”; Lisa responded by telling her mother not to tell her
father because he “would get upset that [they] had such ideas.”
expressed concern regarding Paul’s attendance. In one instance, she told an
unnamed witness that she hoped Paul “would not kill everyone” at the dinner
party. Likewise, she told her daughter, Lisa, “I hope he [Paul] doesn’t come and
kill us all tonight”; Lisa responded by telling her mother not to tell her
father because he “would get upset that [they] had such ideas.”
On the fateful Thanksgiving night, after the Merhiges arrived, Paul called
his father, appellee Michael Merhige, to ask for directions; Michael complied.
Shocked by this unanticipated predicament, appellant Muriel Sitton immediately
confronted her mother, Mrs. Joseph, and asked whether she knew Paul was
attending; Mrs. Joseph, however, was equally surprised.
his father, appellee Michael Merhige, to ask for directions; Michael complied.
Shocked by this unanticipated predicament, appellant Muriel Sitton immediately
confronted her mother, Mrs. Joseph, and asked whether she knew Paul was
attending; Mrs. Joseph, however, was equally surprised.
When Paul arrived, neither Dr. Joseph nor any of the guests impeded his entry
into the home. Initially, everything seemed fine. The family ate dinner
together. Paul innocuously left to get something from his car.
into the home. Initially, everything seemed fine. The family ate dinner
together. Paul innocuously left to get something from his car.
Upon returning to the gathering, Paul brandished a firearm and shot Mrs.
Joseph, killing her instantly. He then opened fire on his direct relatives,
killing both of his sisters, Carla and Lisa, while seriously wounding his
brother-in-law, Patrick Knight. After unjamming his gun, Paul left the dining
room and went upstairs, where he shot the Sittons’ six-year-old daughter point
blank, killing her as she slept in her bedroom.
Joseph, killing her instantly. He then opened fire on his direct relatives,
killing both of his sisters, Carla and Lisa, while seriously wounding his
brother-in-law, Patrick Knight. After unjamming his gun, Paul left the dining
room and went upstairs, where he shot the Sittons’ six-year-old daughter point
blank, killing her as she slept in her bedroom.
Procedural Posture
A criminal prosecution was resolved by a plea bargain and Paul was
sentenced to life imprisonment. The appellants, representing the victims’
estates, brought separate negligence suits against the Merhiges. The first case
was initiated by the Sittons, on behalf of their six-year-old daughter, and Dr.
Joseph, on behalf of his wife. The second was brought by Patrick Knight, for the
injuries he personally sustained and as personal representative for the estate
of his late wife, Lisa. Although the parties were represented by separate
attorneys, both suits were premised upon similar legal theories.
sentenced to life imprisonment. The appellants, representing the victims’
estates, brought separate negligence suits against the Merhiges. The first case
was initiated by the Sittons, on behalf of their six-year-old daughter, and Dr.
Joseph, on behalf of his wife. The second was brought by Patrick Knight, for the
injuries he personally sustained and as personal representative for the estate
of his late wife, Lisa. Although the parties were represented by separate
attorneys, both suits were premised upon similar legal theories.
Through eight counts, the Knight complaint, in essence, attempted to base the
Merhiges’ negligence upon two predicates. First, the complaint alleged that the
Merhiges created a “foreseeable zone of risk,” and failed to exercise prudent
foresight, by surreptitiously inviting Paul to the Thanksgiving dinner, all the
while knowing that their son had made “specific threats of violence against
those in attendance.” Second, invoking the “undertaker’s doctrine,” Knight
alleged that the Merhiges “assumed a duty to serve as [Paul’s] custodian and had
a special relationship with” Paul, which they breached by failing to provide
adequate “supervision, guidance, control, direction, security, monitoring and
management of his person.”
Merhiges’ negligence upon two predicates. First, the complaint alleged that the
Merhiges created a “foreseeable zone of risk,” and failed to exercise prudent
foresight, by surreptitiously inviting Paul to the Thanksgiving dinner, all the
while knowing that their son had made “specific threats of violence against
those in attendance.” Second, invoking the “undertaker’s doctrine,” Knight
alleged that the Merhiges “assumed a duty to serve as [Paul’s] custodian and had
a special relationship with” Paul, which they breached by failing to provide
adequate “supervision, guidance, control, direction, security, monitoring and
management of his person.”
Similarly, the Sitton complaint alleged that the Merhiges created a
“foreseeable zone of risk” by purposefully concealing their dinner invitation to
Paul despite having such “superior knowledge of [his] likelihood to do harm”
that they could “specifically fores[ee] the type of . . . harm which ultimately
occurred.” Alternatively, the complaint posited that the Merhiges maintained a
“special relationship” with Paul given their “familial ties” and the fact that
they completely supported him.
“foreseeable zone of risk” by purposefully concealing their dinner invitation to
Paul despite having such “superior knowledge of [his] likelihood to do harm”
that they could “specifically fores[ee] the type of . . . harm which ultimately
occurred.” Alternatively, the complaint posited that the Merhiges maintained a
“special relationship” with Paul given their “familial ties” and the fact that
they completely supported him.
Dismissal of the Complaints
After the filing of amended complaints, the circuit court, upon proper
motion, dismissed the complaints with prejudice, finding that the Merhiges had
no legal duty to control the actions of their emancipated son. In so ruling, the
trial court held that since the allegations failed to adequately establish
either a “special relationship” with the victims or the Merhiges’ ability to
“control” their son’s behavior, the appellants could not overcome the general
rule that “there is no duty to control the conduct of a third person to prevent
him from causing physical harm to another.” Furthermore, the court held, as a
matter of law, that the Merhiges “did not create a dangerous situation by
inviting their son to the gathering” since Paul was not under their control and
“had his own free will.”
motion, dismissed the complaints with prejudice, finding that the Merhiges had
no legal duty to control the actions of their emancipated son. In so ruling, the
trial court held that since the allegations failed to adequately establish
either a “special relationship” with the victims or the Merhiges’ ability to
“control” their son’s behavior, the appellants could not overcome the general
rule that “there is no duty to control the conduct of a third person to prevent
him from causing physical harm to another.” Furthermore, the court held, as a
matter of law, that the Merhiges “did not create a dangerous situation by
inviting their son to the gathering” since Paul was not under their control and
“had his own free will.”
I
As their primary issue on appeal, the appellants argue that the trial court
erred in dismissing their complaints since the Merhiges’ invitation to Paul to
the family gathering “created” a foreseeable zone of risk, given his propensity
for violence toward certain family members. In making this argument, the
appellants characterize the issue of a legal duty as one of foreseeability and
nothing more, that a plaintiff’s interests are entitled to legal protection
whenever a personal injury is a foreseeable consequence of a defendant’s
conduct.
erred in dismissing their complaints since the Merhiges’ invitation to Paul to
the family gathering “created” a foreseeable zone of risk, given his propensity
for violence toward certain family members. In making this argument, the
appellants characterize the issue of a legal duty as one of foreseeability and
nothing more, that a plaintiff’s interests are entitled to legal protection
whenever a personal injury is a foreseeable consequence of a defendant’s
conduct.
Recognizing that this is a case where plaintiffs seek to impose liability
upon defendants for the criminal acts of a third party, we reject this approach
for two reasons. First, the imposition of a legal duty in this type of case is
tied to either a special relationship between the plaintiff and defendant or the
defendant’s control over the premises where the injury occurred, the
instrumentality causing the injury, or the person causing the injury. Second,
even assuming that the issue of legal duty is one of foreseeability alone,
untethered to any special relationship or issue of control, public policy
reasons warrant a denial of liability where a defendant’s conduct involves the
inclusion of an adult family member into the extended family circle.
upon defendants for the criminal acts of a third party, we reject this approach
for two reasons. First, the imposition of a legal duty in this type of case is
tied to either a special relationship between the plaintiff and defendant or the
defendant’s control over the premises where the injury occurred, the
instrumentality causing the injury, or the person causing the injury. Second,
even assuming that the issue of legal duty is one of foreseeability alone,
untethered to any special relationship or issue of control, public policy
reasons warrant a denial of liability where a defendant’s conduct involves the
inclusion of an adult family member into the extended family circle.
“[W]hether a complaint is sufficient to state a cause of action is an issue
of law subject to de novo review.” Vaughn v. Boerckel, 20 So. 3d
443, 445 (Fla. 4th DCA 2009) (citing Siegle v. Progressive Consumers Ins.
Co., 819 So. 2d 732, 734 (Fla. 2002)). While we are limited to the
complaints’ four corners and must accept all allegations as true, see
Someplace New, Inc. v. Francois, 51 So. 3d 1215, 1216 (Fla. 4th DCA 2011),
we are “not required to defer to the trial court’s conclusions regarding the
legal sufficiency of the allegations.” Aguila v. Hilton, Inc., 878 So. 2d
392, 395 (Fla. 1st DCA 2004).
of law subject to de novo review.” Vaughn v. Boerckel, 20 So. 3d
443, 445 (Fla. 4th DCA 2009) (citing Siegle v. Progressive Consumers Ins.
Co., 819 So. 2d 732, 734 (Fla. 2002)). While we are limited to the
complaints’ four corners and must accept all allegations as true, see
Someplace New, Inc. v. Francois, 51 So. 3d 1215, 1216 (Fla. 4th DCA 2011),
we are “not required to defer to the trial court’s conclusions regarding the
legal sufficiency of the allegations.” Aguila v. Hilton, Inc., 878 So. 2d
392, 395 (Fla. 1st DCA 2004).
II
A traditional analysis of a defendant’s liability in negligence for the
criminal acts of another links the existence of a legal duty to the defendant’s
special relationship to the injured party or to the defendant’s ability to
control some aspect of the criminal act. Under this traditional analysis, the
circuit court correctly determined that the Merhiges violated no legal duty owed
to the appellants.
criminal acts of another links the existence of a legal duty to the defendant’s
special relationship to the injured party or to the defendant’s ability to
control some aspect of the criminal act. Under this traditional analysis, the
circuit court correctly determined that the Merhiges violated no legal duty owed
to the appellants.
A negligence cause of action is comprised of four elements; the first is a
“duty, or obligation, recognized by the law, requiring the [defendant] to
conform to a certain standard of conduct, for the protection of others against
unreasonable risks.” Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182,
1185 (Fla. 2003) (citation omitted). With regard to this element, whether a duty
exists is a question of law for the court. Goldberg v. Fla. Power & Light
Co., 899 So. 2d 1105, 1110 (Fla. 2005). Crucial to the duty inquiry is
“whether the defendant’s conduct foreseeably create[s] a broader ‘zone of risk’
that poses a general threat of harm to others.” McCain v. Fla. Power
Corp., 593 So. 2d 500, 502 (Fla. 1992). “[T]he zone of risk created by a
defendant defines the scope of the defendant’s legal duty and the scope of the
zone of risk is in turn determined by the foreseeability of a risk of harm to
others.” Smith v. Fla. Power & Light Co., 857 So. 2d 224, 229 (Fla.
2d DCA 2003).
“duty, or obligation, recognized by the law, requiring the [defendant] to
conform to a certain standard of conduct, for the protection of others against
unreasonable risks.” Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182,
1185 (Fla. 2003) (citation omitted). With regard to this element, whether a duty
exists is a question of law for the court. Goldberg v. Fla. Power & Light
Co., 899 So. 2d 1105, 1110 (Fla. 2005). Crucial to the duty inquiry is
“whether the defendant’s conduct foreseeably create[s] a broader ‘zone of risk’
that poses a general threat of harm to others.” McCain v. Fla. Power
Corp., 593 So. 2d 500, 502 (Fla. 1992). “[T]he zone of risk created by a
defendant defines the scope of the defendant’s legal duty and the scope of the
zone of risk is in turn determined by the foreseeability of a risk of harm to
others.” Smith v. Fla. Power & Light Co., 857 So. 2d 224, 229 (Fla.
2d DCA 2003).
“Generally, there is no duty to control the conduct of a third person to
prevent [that person] from causing physical harm to another.” Carney v.
Gambel, 751 So. 2d 653, 654 (Fla. 4th DCA 1999); see also Boynton v.
Burglass, 590 So. 2d 446, 448 (Fla. 3d DCA 1991) (“Florida courts have long
been loathe to impose liability based on a defendant’s failure to control the
conduct of a third party.”).
prevent [that person] from causing physical harm to another.” Carney v.
Gambel, 751 So. 2d 653, 654 (Fla. 4th DCA 1999); see also Boynton v.
Burglass, 590 So. 2d 446, 448 (Fla. 3d DCA 1991) (“Florida courts have long
been loathe to impose liability based on a defendant’s failure to control the
conduct of a third party.”).
However, there are limited exceptions to this general rule. A defendant’s
liability for the criminal acts of third parties is often linked to a “special
relationship” with the plaintiff. See T.W. v. Regal Trace, Ltd., 908 So.
2d 499, 503 (Fla. 4th DCA 2005); Estate of Rotell ex re. Rotell v.
Kuehnle, 38 So. 3d 783, 790-91 (Fla. 2d DCA 2010) (Altenbernd, J.,
concurring) (observing that in a negligence action, it is a “relationship” that
justifies “the creation of a legal duty”). These “relationships are protective
by nature, requiring the defendant to guard his charge against harm from
others.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts §
56, at 383 (5th ed. 1984); see also Dan B. Dobbs, The Law of Torts
§§ 322-329 (2000). For example, a common carrier has a legal duty toward its
passengers to exercise reasonable care to prevent physical attacks by third
persons. See Hall v. Seaboard Air Line Ry. Co., 93 So. 151, 153-54 (Fla.
1921). A “landlord has a duty to protect a tenant from reasonably foreseeable
criminal conduct.” Salerno v. Hart Fin. Corp., 521 So. 2d 234, 235 (Fla.
4th DCA 1988). A rental car company has a duty to warn its customers of
“foreseeable criminal conduct.” Shurben v. Dollar Rent-A-Car, 676 So. 2d
467, 468 (Fla. 3d DCA 1996). Other examples of recognized special relationships
include businesses toward their customers,3
employers toward their employees,4 jailers
toward their prisoners,5 hospitals toward
their patients,6 and schools toward their
pupils.7 See Garrison Ret. Home Corp. v.
Hancock, 484 So. 2d 1257, 1261 (Fla. 4th DCA 1985); Prosser and Keeton on
the Law of Torts § 56, at 383.
liability for the criminal acts of third parties is often linked to a “special
relationship” with the plaintiff. See T.W. v. Regal Trace, Ltd., 908 So.
2d 499, 503 (Fla. 4th DCA 2005); Estate of Rotell ex re. Rotell v.
Kuehnle, 38 So. 3d 783, 790-91 (Fla. 2d DCA 2010) (Altenbernd, J.,
concurring) (observing that in a negligence action, it is a “relationship” that
justifies “the creation of a legal duty”). These “relationships are protective
by nature, requiring the defendant to guard his charge against harm from
others.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts §
56, at 383 (5th ed. 1984); see also Dan B. Dobbs, The Law of Torts
§§ 322-329 (2000). For example, a common carrier has a legal duty toward its
passengers to exercise reasonable care to prevent physical attacks by third
persons. See Hall v. Seaboard Air Line Ry. Co., 93 So. 151, 153-54 (Fla.
1921). A “landlord has a duty to protect a tenant from reasonably foreseeable
criminal conduct.” Salerno v. Hart Fin. Corp., 521 So. 2d 234, 235 (Fla.
4th DCA 1988). A rental car company has a duty to warn its customers of
“foreseeable criminal conduct.” Shurben v. Dollar Rent-A-Car, 676 So. 2d
467, 468 (Fla. 3d DCA 1996). Other examples of recognized special relationships
include businesses toward their customers,3
employers toward their employees,4 jailers
toward their prisoners,5 hospitals toward
their patients,6 and schools toward their
pupils.7 See Garrison Ret. Home Corp. v.
Hancock, 484 So. 2d 1257, 1261 (Fla. 4th DCA 1985); Prosser and Keeton on
the Law of Torts § 56, at 383.
In this case, there was no recognized special relationship between the
Merhiges and the plaintiffs that gave rise to a legal duty to protect them from
Paul’s conduct. In general, family members owe no heightened obligation to
protect other adult family members from each other.
Merhiges and the plaintiffs that gave rise to a legal duty to protect them from
Paul’s conduct. In general, family members owe no heightened obligation to
protect other adult family members from each other.
Absent a special relationship between a defendant and a plaintiff, a duty to
protect a plaintiff from “the conduct of a third party may [also] arise if the
defendant is in actual or constructive control of: (1) the instrumentality of
the harm; (2) the premises upon which the tort is committed; or (3) the person
who committed the tort.” Aguila, 878 So. 2d at 398; Daly v. Denny’s,
Inc., 694 So. 2d 775, 777 (Fla. 4th DCA 1997); Vic Potamkin Chevrolet,
Inc. v. Horne, 505 So. 2d 560, 562 (Fla. 3d DCA 1987) (en banc),
approved, 533 So. 2d 261 (Fla. 1988); see also Dobbs, §§ 329-332.
Neither appellant contends that the Merhiges maintained control over the
instrumentality (firearm) or the premises (the Sittons’ home).
protect a plaintiff from “the conduct of a third party may [also] arise if the
defendant is in actual or constructive control of: (1) the instrumentality of
the harm; (2) the premises upon which the tort is committed; or (3) the person
who committed the tort.” Aguila, 878 So. 2d at 398; Daly v. Denny’s,
Inc., 694 So. 2d 775, 777 (Fla. 4th DCA 1997); Vic Potamkin Chevrolet,
Inc. v. Horne, 505 So. 2d 560, 562 (Fla. 3d DCA 1987) (en banc),
approved, 533 So. 2d 261 (Fla. 1988); see also Dobbs, §§ 329-332.
Neither appellant contends that the Merhiges maintained control over the
instrumentality (firearm) or the premises (the Sittons’ home).
Focusing on parents’ control over their adult children, we held in Carney
that parents “may not be held legally responsible for the conduct of their
emancipated, adult child.” 751 So. 2d at 654. We observed that where liability
has been imposed on the parent for the conduct of a child, “the duty to exercise
control is limited to a minor child. . . . Certainly, where there is no
legal right to control a child, there can be no liability imposed on the
parent.” Id. (citations omitted); see also Lott v. Goodkind, 867
So. 2d 407, 408-09 (Fla. 3d DCA 2003) (holding that an adult murderer was not in
the “custody” of his mother, who therefore owed no legal duty to the victim with
respect to her son’s conduct). “No Florida decision has imposed liability upon
the parents of an adult child for intentional acts simply because the child may
be financially dependent on, or needs to reside with, his or her parents.”
Carney, 751 So. 2d at 654.
that parents “may not be held legally responsible for the conduct of their
emancipated, adult child.” 751 So. 2d at 654. We observed that where liability
has been imposed on the parent for the conduct of a child, “the duty to exercise
control is limited to a minor child. . . . Certainly, where there is no
legal right to control a child, there can be no liability imposed on the
parent.” Id. (citations omitted); see also Lott v. Goodkind, 867
So. 2d 407, 408-09 (Fla. 3d DCA 2003) (holding that an adult murderer was not in
the “custody” of his mother, who therefore owed no legal duty to the victim with
respect to her son’s conduct). “No Florida decision has imposed liability upon
the parents of an adult child for intentional acts simply because the child may
be financially dependent on, or needs to reside with, his or her parents.”
Carney, 751 So. 2d at 654.
Appellant Sitton posits that Carney left open the possibility “that
parents of an emancipated adult could be held responsible for an adult child’s
actions” when it cited to Thorne v. Ramirez, 346 So. 2d 121, 122 (Fla. 3d
DCA 1977), as holding that“absent allegations that [the] adult child was
insane or mentally deficient, a complaint that sought to hold the parents of
the child liable for an intentional tort was properly dismissed.” Id.
(emphasis added).
parents of an emancipated adult could be held responsible for an adult child’s
actions” when it cited to Thorne v. Ramirez, 346 So. 2d 121, 122 (Fla. 3d
DCA 1977), as holding that“absent allegations that [the] adult child was
insane or mentally deficient, a complaint that sought to hold the parents of
the child liable for an intentional tort was properly dismissed.” Id.
(emphasis added).
Although addressed in neither Carney nor Thorne, such liability
is controlled not by parental status but by the Restatement (Second) of Torts §
319 (1965), which imputes a “special relationship” when “[o]ne . . . takes
charge of a third person whom he knows or should know to be likely to cause
bodily harm to others if not controlled.” See Garrison, 484 So. 2d at
1261 (adopting section 319); United States v. Comstock, 560 U.S. 126, 142
(2010) (clarifying that this exception derives as a common law principle). Given
the law’s reluctance to impose a duty for nonfeasance, the “take charge”
requirement of section 319 has generally been limited to “the context of
professional custodians with special competence to control the behavior of those
in their charge.” Kaminski v. Town of Fairfield, 578 A.2d 1048, 1051
(Conn. 1990). Accordingly, in Florida, such liability has “typically been
imposed on persons having someone committed to their legal custody, such as a
jailer or superintendent of a residential institution which has the ability to
control the actions of its residents.” Lott, 867 So. 2d at 408.
is controlled not by parental status but by the Restatement (Second) of Torts §
319 (1965), which imputes a “special relationship” when “[o]ne . . . takes
charge of a third person whom he knows or should know to be likely to cause
bodily harm to others if not controlled.” See Garrison, 484 So. 2d at
1261 (adopting section 319); United States v. Comstock, 560 U.S. 126, 142
(2010) (clarifying that this exception derives as a common law principle). Given
the law’s reluctance to impose a duty for nonfeasance, the “take charge”
requirement of section 319 has generally been limited to “the context of
professional custodians with special competence to control the behavior of those
in their charge.” Kaminski v. Town of Fairfield, 578 A.2d 1048, 1051
(Conn. 1990). Accordingly, in Florida, such liability has “typically been
imposed on persons having someone committed to their legal custody, such as a
jailer or superintendent of a residential institution which has the ability to
control the actions of its residents.” Lott, 867 So. 2d at 408.
While the depraved nature of Paul’s mind is unquestioned, there were no
allegations that the Merhiges exhibited sufficient “control” over Paul’s actions
so as to place him within the functional equivalent of their “legal custody.”
That the Merhiges financially provided for Paul and could “control” whether to
invite him to family gatherings is insufficient to generate a legal duty on
their part to protect those attending the Thanksgiving dinner from Paul. Holding
otherwise would stack an untenable burden upon the already difficult lives of
parents trying to assist their mentally defective, yet otherwise independent,
adult children.
allegations that the Merhiges exhibited sufficient “control” over Paul’s actions
so as to place him within the functional equivalent of their “legal custody.”
That the Merhiges financially provided for Paul and could “control” whether to
invite him to family gatherings is insufficient to generate a legal duty on
their part to protect those attending the Thanksgiving dinner from Paul. Holding
otherwise would stack an untenable burden upon the already difficult lives of
parents trying to assist their mentally defective, yet otherwise independent,
adult children.
III
The appellants read McCain to apply an analysis unburdened by concepts
of a special relationship or control. Rather, they contend that
post-McCain, the issue of legal duty is solely determined by whether a
defendant’s conduct foreseeably created a broader zone of risk that poses a
general threat of harm to others, untethered to any consideration of a special
relationship or control. Under this approach, foreseeability is everything and
legal duty is but a minimal legal threshold requirement for opening the
courthouse door. Even if, under McCain, the tragedy that befell the
appellants was a foreseeable result of the Merhiges’ conduct, we would decline
to find the existence of a legal duty for public policy reasons.
of a special relationship or control. Rather, they contend that
post-McCain, the issue of legal duty is solely determined by whether a
defendant’s conduct foreseeably created a broader zone of risk that poses a
general threat of harm to others, untethered to any consideration of a special
relationship or control. Under this approach, foreseeability is everything and
legal duty is but a minimal legal threshold requirement for opening the
courthouse door. Even if, under McCain, the tragedy that befell the
appellants was a foreseeable result of the Merhiges’ conduct, we would decline
to find the existence of a legal duty for public policy reasons.
There is some authority for this focus on the creation of a foreseeable zone
of risk as the sole trigger of a legal duty. The Restatement (Second) of Torts §
302B (1965) “recognizes the possibility of a duty to guard another person
against a foreseeable risk of harm caused by a third person,” Robb v. City of
Seattle, 245 P.3d 242, 244 (Wash. Ct. App. 2010), reversed on other
grounds by 295 P.3d 212 (2013), providing in full:8
of risk as the sole trigger of a legal duty. The Restatement (Second) of Torts §
302B (1965) “recognizes the possibility of a duty to guard another person
against a foreseeable risk of harm caused by a third person,” Robb v. City of
Seattle, 245 P.3d 242, 244 (Wash. Ct. App. 2010), reversed on other
grounds by 295 P.3d 212 (2013), providing in full:8
An act or an omission may be negligent if the actor realizes or
should realize that it involves an unreasonable risk of harm to another through
the conduct of the other or a third person which is intended to cause harm, even
though such conduct is criminal.
Id. at 245.
Crucial to the case at hand, section 302B’s Comment e. posits two situations
when an actor “ ‘is required to anticipate and guard against the intentional, or
even criminal, misconduct of others’: (1) ‘where the actor’s own affirmative
act has created or exposed the other to a recognizable high degree of risk of
harm through such misconduct, which a reasonable man would take into
account,’ or (2) where the actor is under a special responsibility to the
victim.” United States v. Stevens, 994 So. 2d 1062, 1067 (Fla. 2008)
(quoting Restatement (Second) of Torts § 302B cmt. e (1965)) (emphasis added).
The Third Restatement has since expounded upon the impact of Comment e. when
taken in conjunction with the “special relationship” exceptions outlined in
section 315, stating:
when an actor “ ‘is required to anticipate and guard against the intentional, or
even criminal, misconduct of others’: (1) ‘where the actor’s own affirmative
act has created or exposed the other to a recognizable high degree of risk of
harm through such misconduct, which a reasonable man would take into
account,’ or (2) where the actor is under a special responsibility to the
victim.” United States v. Stevens, 994 So. 2d 1062, 1067 (Fla. 2008)
(quoting Restatement (Second) of Torts § 302B cmt. e (1965)) (emphasis added).
The Third Restatement has since expounded upon the impact of Comment e. when
taken in conjunction with the “special relationship” exceptions outlined in
section 315, stating:
Section 315 of the Restatement Second of Torts contributed to
frequent judicial pronouncements . . . that absent a special relationship an
actor owes no duty to control third parties. Section 315, however, must be
understood to address only an affirmative duty to control third parties. It did
not address the ordinary duty of reasonable care with regard to conduct that
might provide an occasion for a third party to cause harm. The Restatement
Second of Torts § 302B, Comment e, provides for a duty of care when “the actor’s
own affirmative act has created or exposed the other to a recognizable high
degree of risk of harm through such [third-party] misconduct.” Section 449 of
the Second Restatement also contemplated liability, without regard to any
special relationship, for acts that are negligent because of the risk of the
third party’s conduct.
Restatement (Third) of Torts: Phys. & Emot. Harm § 37 cmt. d. (2012)
(emphasis added). Thus, since section 302B is “concerned only with the negligent
character of the actor’s conduct, and not with his duty to avoid the
unreasonable risk,” a defendant who creates an “unreasonable risk” through
his or her own misfeasance is still “under a duty to others to exercise the care
of a reasonable man to protect them against an unreasonable risk of harm to them
arising out of the act.” Restatement (Second) of Torts § 302 cmt. a (1965)
(emphasis added); Seebold v. Prison Health Servs., Inc., 57 A.3d 1232,
1246 (Pa. 2012).
(emphasis added). Thus, since section 302B is “concerned only with the negligent
character of the actor’s conduct, and not with his duty to avoid the
unreasonable risk,” a defendant who creates an “unreasonable risk” through
his or her own misfeasance is still “under a duty to others to exercise the care
of a reasonable man to protect them against an unreasonable risk of harm to them
arising out of the act.” Restatement (Second) of Torts § 302 cmt. a (1965)
(emphasis added); Seebold v. Prison Health Servs., Inc., 57 A.3d 1232,
1246 (Pa. 2012).
Creation of Risk
A duty is not, however, transposed through mere assertions of
misfeasance. As the Third Restatement explains:
misfeasance. As the Third Restatement explains:
An actor’s conduct creates a risk when the actor’s conduct or
course of conduct results in greater risk to another than the other would have
faced absent the conduct.
Restatement (Third) of Torts: Phys. & Emot. Harm § 7 cmt. o. (2010)
(emphasis added); see also Lee v. Clorox Int’l Co., 854 F.Supp.2d 1311,
1315 (S.D. Ga. 2010), aff’d, 466 Fed. Appx. 826 (11th Cir. 2012) (“[F]or
a defendant’s conduct to create a risk, the defendant must take an affirmative
step that goes directly and necessarily to the creation of a foreseeable
risk.”). While such conduct may include “exposing another to the improper
conduct of third parties,” Restatement (Third) of Torts: Phys. & Emot. Harm
§ 7 cmt. o., the third party’s criminal conduct will be foreseeable only if “the
actor at the time of his negligent conduct realized or should have realized the
likelihood that such a situation might be created, and that a third person might
avail himself of the opportunity to commit such a . . . crime.” Restatement
(Second) of Torts § 448 (1965).
(emphasis added); see also Lee v. Clorox Int’l Co., 854 F.Supp.2d 1311,
1315 (S.D. Ga. 2010), aff’d, 466 Fed. Appx. 826 (11th Cir. 2012) (“[F]or
a defendant’s conduct to create a risk, the defendant must take an affirmative
step that goes directly and necessarily to the creation of a foreseeable
risk.”). While such conduct may include “exposing another to the improper
conduct of third parties,” Restatement (Third) of Torts: Phys. & Emot. Harm
§ 7 cmt. o., the third party’s criminal conduct will be foreseeable only if “the
actor at the time of his negligent conduct realized or should have realized the
likelihood that such a situation might be created, and that a third person might
avail himself of the opportunity to commit such a . . . crime.” Restatement
(Second) of Torts § 448 (1965).
Within this spectrum, Comment e. provides four examples of affirmative acts
sufficient to sustain liability for the criminal acts of another. Among these
illustrations, Paragraph D. provides that a duty may arise “[w]here the actor
has brought into contact or association with the other a person whom the
actor knows or should know to be peculiarly likely to commit intentional
misconduct, under circumstances which afford a peculiar opportunity or
temptation for such misconduct.”9
(Emphasis added). In assessing the applicability of this principle, factors to
be considered include:
sufficient to sustain liability for the criminal acts of another. Among these
illustrations, Paragraph D. provides that a duty may arise “[w]here the actor
has brought into contact or association with the other a person whom the
actor knows or should know to be peculiarly likely to commit intentional
misconduct, under circumstances which afford a peculiar opportunity or
temptation for such misconduct.”9
(Emphasis added). In assessing the applicability of this principle, factors to
be considered include:
[T]he known character, past conduct, and tendencies of the person
whose intentional conduct causes the harm, the temptation or opportunity which
the situation may afford him for such misconduct, the gravity of the harm which
may result, and the possibility that some other person will assume the
responsibility for preventing the conduct or the harm, together with the burden
of the precautions which the actor would be required to take.
Restatement (Second) of Torts § 302B cmt. f. (1965). As pleaded, the
allegations of the complaint fall within the scope of Comment f.
allegations of the complaint fall within the scope of Comment f.
Florida courts have yet to apply Paragraph D. in this context. Shurben
cited to section 302B, but the case can also be read as one where a duty arose
out of a business relationship — that of a car rental agency and a customer.
676 So. 2d at 468. In Shurben, a British tourist sued a rental car
dealership after she was accosted and shot by unknown criminals while driving
her rental car in Miami. The defendant dealership knew that the plaintiff’s
rental car bore a license plate that readily identified it as a rental vehicle;
it was alleged that there had been “repeated instances of criminal activity
directed at tourists in rental cars in certain areas of Miami and that [the
defendant] was aware of those instances.” Id. In finding that the
defendant dealership had a duty to warn the plaintiff of the foreseeable
criminal conduct, the third district discussed section 302B and held that,
“[b]ased on the knowledge it had on hand, [the defendant] should have realized
that criminals were targeting tourist car renters in certain areas of Miami and
that a reasonable rental company in possession of those facts would understand
that its customers would be exposed to unreasonable risk of harm if not warned.”
Id. (footnote omitted).
cited to section 302B, but the case can also be read as one where a duty arose
out of a business relationship — that of a car rental agency and a customer.
676 So. 2d at 468. In Shurben, a British tourist sued a rental car
dealership after she was accosted and shot by unknown criminals while driving
her rental car in Miami. The defendant dealership knew that the plaintiff’s
rental car bore a license plate that readily identified it as a rental vehicle;
it was alleged that there had been “repeated instances of criminal activity
directed at tourists in rental cars in certain areas of Miami and that [the
defendant] was aware of those instances.” Id. In finding that the
defendant dealership had a duty to warn the plaintiff of the foreseeable
criminal conduct, the third district discussed section 302B and held that,
“[b]ased on the knowledge it had on hand, [the defendant] should have realized
that criminals were targeting tourist car renters in certain areas of Miami and
that a reasonable rental company in possession of those facts would understand
that its customers would be exposed to unreasonable risk of harm if not warned.”
Id. (footnote omitted).
Application of Public Policy
Even if we were to apply section 302B in the way urged by appellants, for
public policy reasons we would nonetheless hold that the Merhiges violated no
legal duty toward the appellants.
public policy reasons we would nonetheless hold that the Merhiges violated no
legal duty toward the appellants.
The issue of legal duty in a negligence case asks “whether the plaintiff’s
interests are entitled to legal protection against the defendant’s conduct.”
Prosser & Keeton on the Law of Torts § 53, at 357. A court’s decision
as to whether a legal duty in negligence exists necessarily involves questions
of public policy. As the Florida Supreme Court recognized pre-McCain, the
duty inquiry in a negligence case involves weighing “ ‘the sum total of those
considerations of policy which lead the law to say that the particular plaintiff
is entitled to protection.’ ” Rupp v. Bryant, 417 So. 2d 658, 667 (Fla.
1982) (quoting W. Prosser, The Law of Torts § 53, at 325-26 (4th ed.
1971)); see also Gross v. Family Servs. Agency, Inc., 716 So. 2d 337, 338
(Fla. 4th DCA 1998). We explained in Biglen v. Florida Power & Light
Co., 910 So. 2d 405 (Fla. 4th DCA 2005):
interests are entitled to legal protection against the defendant’s conduct.”
Prosser & Keeton on the Law of Torts § 53, at 357. A court’s decision
as to whether a legal duty in negligence exists necessarily involves questions
of public policy. As the Florida Supreme Court recognized pre-McCain, the
duty inquiry in a negligence case involves weighing “ ‘the sum total of those
considerations of policy which lead the law to say that the particular plaintiff
is entitled to protection.’ ” Rupp v. Bryant, 417 So. 2d 658, 667 (Fla.
1982) (quoting W. Prosser, The Law of Torts § 53, at 325-26 (4th ed.
1971)); see also Gross v. Family Servs. Agency, Inc., 716 So. 2d 337, 338
(Fla. 4th DCA 1998). We explained in Biglen v. Florida Power & Light
Co., 910 So. 2d 405 (Fla. 4th DCA 2005):
Finding that a legal duty exists in a negligence case involves the
public policy decision that a “defendant should bear a given loss, as opposed to
distributing the loss among the general public.” Levy v. Fla. Power &
Light Co., 798 So. 2d 778, 780 (Fla. 4th DCA 2001), rev. den. 902 So.
2d 790 (Fla. 2005). A legal “[d]uty is an allocation of risk determined by
balancing the foreseeability of harm, in light of all the circumstances, against
the burden to be imposed.” Id. (quoting Vaughan v. Eastern Edison
Co., 48 Mass. App. Ct. 225, 719 N.E.2d 520, 523 (1999)).
Id. at 409.
Considerations of public policy are appropriate in determining whether a
negligence cause of action will lie. For example, in Raisen v. Raisen,
379 So. 2d 352, 354-55 (Fla. 1979), the Supreme Court relied upon public policy
reasons to hold that the doctrine of interspousal tort immunity was still viable
in Florida. Similarly, the Court evaluated policy considerations in Ard v.
Ard, 414 So. 2d 1066, 1067 (Fla. 1982), to hold that in a negligence action
brought by an unemancipated minor child against a parent, “the doctrine of
parental immunity is waived to the extent of the parent’s available liability
insurance coverage.” It is highly unlikely that, in McCain, the Supreme
Court silently abandoned the common law function of a court to consider public
policy in deciding whether a legal duty in negligence exists. See
Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002) (holding that the
Supreme Court “does not intentionally overrule itself sub silentio”).
negligence cause of action will lie. For example, in Raisen v. Raisen,
379 So. 2d 352, 354-55 (Fla. 1979), the Supreme Court relied upon public policy
reasons to hold that the doctrine of interspousal tort immunity was still viable
in Florida. Similarly, the Court evaluated policy considerations in Ard v.
Ard, 414 So. 2d 1066, 1067 (Fla. 1982), to hold that in a negligence action
brought by an unemancipated minor child against a parent, “the doctrine of
parental immunity is waived to the extent of the parent’s available liability
insurance coverage.” It is highly unlikely that, in McCain, the Supreme
Court silently abandoned the common law function of a court to consider public
policy in deciding whether a legal duty in negligence exists. See
Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002) (holding that the
Supreme Court “does not intentionally overrule itself sub silentio”).
Public policy considerations may operate to limit legal duty under
Restatement (Third) of Torts: Physical & Emotional Harm § 7(b) (2010), which
provides:
Restatement (Third) of Torts: Physical & Emotional Harm § 7(b) (2010), which
provides:
In exceptional cases, when an articulated countervailing principle
or policy warrants denying or limiting liability in a particular class of cases,
a court may decide that the defendant has no duty or that the ordinary duty of
reasonable care requires modification.
Section 7(b) contemplates that a rule limiting duty for public policy reasons
is appropriate “only when a court can promulgate relatively clear, categorical,
bright-line rules of law applicable to a general class of cases.” Restatement
(Third) of Torts: Phys. & Emot. Harm § 7, cmt. a. Comment j to section 7
explains:
is appropriate “only when a court can promulgate relatively clear, categorical,
bright-line rules of law applicable to a general class of cases.” Restatement
(Third) of Torts: Phys. & Emot. Harm § 7, cmt. a. Comment j to section 7
explains:
A no-duty ruling represents a determination, a purely legal
question, that no liability should be imposed on actors in a category of cases.
Such a ruling should be explained and justified based on articulated policies or
principles that justify exempting these actors from liability or modifying the
ordinary duty of reasonable care. These reasons of policy and principle do
not depend on the foreseeability of harm based on the specific facts of a case.
They should be articulated directly without obscuring references to
foreseeability.
(Emphasis added).10
Here, a public policy reason militates for a finding of no legal duty even
assuming that a McCain/section 302B foreseeability analysis leads to the
conclusion that the shootings were a foreseeable result of the Merhiges’
conduct. In Raisen and Ard, the Supreme Court considered public
policy when confronting tort issues in the family context, and in Ard the
Court expressed its great concern that litigation between family members was an
intrusion “that might adversely affect the family relationship.” 414 So. 2d at
1067. Here, the essence of the negligence claim is that the Merhiges invited
their deeply troubled child to a family gathering, knowing of his difficulties
with family members. Family members with psychological or behavioral problems
are a common occurrence in Florida and elsewhere. Families should be encouraged
to include a troubled family member in the family circle. A holding that the
Merhiges owed a legal duty to the members of their family and extended family in
this case would discourage families from providing a haven to troubled relatives
for fear of civil liability. The result would be to foist those most in need of
family interaction on the governmental and charitable social service networks,
thereby thrusting a family problem into the hands of society at large, where
unhappy outcomes are all too common. Difficult and tragic cases such as this one
should not set the standard for the entire universe of family interaction.
Cf. Alva v. Cook, 123 Cal. Rptr. 166, 170 (Cal. Ct. App. 1975) (“[I]t
would be unjust and morally wrong and against public policy to discourage humane
and natural relationships between members of a family who are sensitive to and
generous in the treatment of less fortunate members of their family.”).
assuming that a McCain/section 302B foreseeability analysis leads to the
conclusion that the shootings were a foreseeable result of the Merhiges’
conduct. In Raisen and Ard, the Supreme Court considered public
policy when confronting tort issues in the family context, and in Ard the
Court expressed its great concern that litigation between family members was an
intrusion “that might adversely affect the family relationship.” 414 So. 2d at
1067. Here, the essence of the negligence claim is that the Merhiges invited
their deeply troubled child to a family gathering, knowing of his difficulties
with family members. Family members with psychological or behavioral problems
are a common occurrence in Florida and elsewhere. Families should be encouraged
to include a troubled family member in the family circle. A holding that the
Merhiges owed a legal duty to the members of their family and extended family in
this case would discourage families from providing a haven to troubled relatives
for fear of civil liability. The result would be to foist those most in need of
family interaction on the governmental and charitable social service networks,
thereby thrusting a family problem into the hands of society at large, where
unhappy outcomes are all too common. Difficult and tragic cases such as this one
should not set the standard for the entire universe of family interaction.
Cf. Alva v. Cook, 123 Cal. Rptr. 166, 170 (Cal. Ct. App. 1975) (“[I]t
would be unjust and morally wrong and against public policy to discourage humane
and natural relationships between members of a family who are sensitive to and
generous in the treatment of less fortunate members of their family.”).
Affirmed. (Damoorgian, C.J., and Taylor, J., concur.)
__________________
1We sua sponte amend the order of
February 8, 2013, consolidating these two cases for oral argument purposes only
and further consolidate the two cases for all purposes.
February 8, 2013, consolidating these two cases for oral argument purposes only
and further consolidate the two cases for all purposes.
2In obtaining the injunction, the sister’s
mother-in-law stated that Paul’s sister told her “she was afraid that [Paul] was
one day going to kill both her and her [other] sister.”
mother-in-law stated that Paul’s sister told her “she was afraid that [Paul] was
one day going to kill both her and her [other] sister.”
3Winn-Dixie Stores, Inc. v.
Johstoneaux, 395 So. 2d 599, 599 n.1 (Fla. 3d DCA 1981); Stevens v.
Jefferson, 436 So. 2d 33, 34-35 (Fla. 1983) (tavern owner); Adika v.
Beekman Towers, Inc., 633 So. 2d 1170, 1170-71 (Fla. 3d DCA 1994)
(innkeeper-guest).
Johstoneaux, 395 So. 2d 599, 599 n.1 (Fla. 3d DCA 1981); Stevens v.
Jefferson, 436 So. 2d 33, 34-35 (Fla. 1983) (tavern owner); Adika v.
Beekman Towers, Inc., 633 So. 2d 1170, 1170-71 (Fla. 3d DCA 1994)
(innkeeper-guest).
4Lillie v. Thompson, 332 U.S. 459,
460 (1947) (employer could be liable for sending female employee “to work in a
place he knew to be unsafe”); Bardy v. Walt Disney World Co., 643 So. 2d
46, 47-48 (Fla. 5th DCA 1994) (negligence available where the defendant’s
security guard ejected a drunken employee from its premises and ordered him to
remove his car, where the employee stated he was too drunk to drive); K.M. ex
rel. D.M. v. Publix Super Mkts., Inc., 895 So. 2d 1114, 1117 (Fla. 4th DCA
2005).
460 (1947) (employer could be liable for sending female employee “to work in a
place he knew to be unsafe”); Bardy v. Walt Disney World Co., 643 So. 2d
46, 47-48 (Fla. 5th DCA 1994) (negligence available where the defendant’s
security guard ejected a drunken employee from its premises and ordered him to
remove his car, where the employee stated he was too drunk to drive); K.M. ex
rel. D.M. v. Publix Super Mkts., Inc., 895 So. 2d 1114, 1117 (Fla. 4th DCA
2005).
5Sams v. Oelrich, 717 So. 2d 1044,
1048 (Fla. 1st DCA 1998) (special relationship between sheriff and prisoner);
Frett v. Gov’t of Virgin Islands, 839 F.2d 968, 975-76 (3d Cir. 1988),
abrogated on other grounds by Ngiraingas v. Sanchez, 495 U.S. 182, 186
n.4 (1990) (prison warden); Taylor v. Slaughter, 42 P.2d 235, 236-37
(Okla. 1935).
1048 (Fla. 1st DCA 1998) (special relationship between sheriff and prisoner);
Frett v. Gov’t of Virgin Islands, 839 F.2d 968, 975-76 (3d Cir. 1988),
abrogated on other grounds by Ngiraingas v. Sanchez, 495 U.S. 182, 186
n.4 (1990) (prison warden); Taylor v. Slaughter, 42 P.2d 235, 236-37
(Okla. 1935).
6Bradley Ctr., Inc. v. Wessner, 296
S.E.2d 693, 696 (Ga. 1982) (private mental health hospital held civilly liable
for murder by patient under the hospital’s control); White v. United
States, 780 F.2d 97, 103 (D.C. Cir. 1986) (mental hospital and its
personnel); Sylvester v. Nw. Hosp. of Minneapolis, 53 N.W.2d 17, 20-21
(Minn. 1952).
S.E.2d 693, 696 (Ga. 1982) (private mental health hospital held civilly liable
for murder by patient under the hospital’s control); White v. United
States, 780 F.2d 97, 103 (D.C. Cir. 1986) (mental hospital and its
personnel); Sylvester v. Nw. Hosp. of Minneapolis, 53 N.W.2d 17, 20-21
(Minn. 1952).
7Nova Se. Univ., Inc. v. Gross, 758
So. 2d 86, 89-90 (Fla. 2000) (university liable for student assaulted while
doing a mandatory, off-campus internship); Concepcion v. Archdiocese of
Miami, 693 So. 2d 1103, 1104-05 (Fla. 3d DCA 1997); Schultz v. Gould
Acad., 332 A.2d 368, 370-71 (Me. 1975).
So. 2d 86, 89-90 (Fla. 2000) (university liable for student assaulted while
doing a mandatory, off-campus internship); Concepcion v. Archdiocese of
Miami, 693 So. 2d 1103, 1104-05 (Fla. 3d DCA 1997); Schultz v. Gould
Acad., 332 A.2d 368, 370-71 (Me. 1975).
8Section 302B is a “special application” of
Restatement (Second) of Torts § 302(b), which provides that “[a] negligent
act or omission may be one which involves an unreasonable risk of harm to
another through . . . the foreseeable action of the other, a third
person, an animal, or a force of nature.” Restatement (Second) of Torts §
302(b) (1965) (emphasis added).
Restatement (Second) of Torts § 302(b), which provides that “[a] negligent
act or omission may be one which involves an unreasonable risk of harm to
another through . . . the foreseeable action of the other, a third
person, an animal, or a force of nature.” Restatement (Second) of Torts §
302(b) (1965) (emphasis added).
9The other three examples include:
(1)“Where the actor’s affirmative act is intended or likely to
defeat a protection which the other has placed around his person or property for
the purpose of guarding them from intentional interference,”
(2) “Where the actor entrusts an instrumentality capable of doing
serious harm if misused, to one whom he knows, or has strong reason to believe,
to intend or to be likely to misuse it to inflict intentional harm,”
or
(3) “Where the actor acts with knowledge of peculiar conditions
which create a high degree of risk of intentional misconduct.”
Restatement (Second) of Torts § 302B, cmt. e, para. C, E, H (1965).
10Interestingly, the Third Restatement
disapproves of the practice of using foreseeability in no-duty determinations.
Restatement (Third) of Torts: Phys. & Emot. Harm § 7, cmt. j (2010). The
Third Restatement “limits no-duty rulings to articulated policy or principle in
order to facilitate more transparent explanations of the reasons for a no-duty
ruling and to protect the traditional function of the jury as factfinder.”
Id.; see generally W. Jonathan Cardi, Purging Foreseeability:
The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of
Torts, 58 Vand. L. Rev. 739 (2005).
disapproves of the practice of using foreseeability in no-duty determinations.
Restatement (Third) of Torts: Phys. & Emot. Harm § 7, cmt. j (2010). The
Third Restatement “limits no-duty rulings to articulated policy or principle in
order to facilitate more transparent explanations of the reasons for a no-duty
ruling and to protect the traditional function of the jury as factfinder.”
Id.; see generally W. Jonathan Cardi, Purging Foreseeability:
The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of
Torts, 58 Vand. L. Rev. 739 (2005).
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