Duty is a question of law in Florida. An affirmative duty to help a person in need cannot be imposed on just anyone. An appellate case illustrates just how strict the prohibition against imposing such an affirmative duty is.
In the case, the plaintiff was drinking with a man and his friend at a bar. The men were drunk. The man got belligerent with people at the bar. The plaintiff told him he was acting like an a******. The man and his friend followed him, asking why the plaintiff called him that.
The plaintiff ignored the pair, but had to go between the man’s truck and another car. As he went between them, the man hurried to the other side, trapping the plaintiff. The man’s friend followed him into the space between the cars.
The man’s friend went into the man’s truck and picked up his tomahawk. The tomahawk was used to help clear the land. The plaintiff asked the man “what is this?” The plaintiff tried to escape, but the men wouldn’t let him leave. The man’s friend hit him on the head with the tomahawk. He fell into unconsciousness and when he came to, the other men had fled. He drove to the hospital.
The plaintiff sued the man and his friend. A jury found in the plaintiff’s favor, awarding him over $1.5 million in damages. The man appealed, saying he had no duty towards the plaintiff or to prevent his friend from hitting the plaintiff with his tomahawk.
Under Florida law, there is no duty to control another person’s conduct in order to prevent him from hurting another person. There are three exceptions to this general rule. First, you can be held liable if you are in control of “the instrumentality” that causes the injury at the time it hurts another person. Second, you can be held liable if you are in actual or constructive control of the premises where a tort is committed. Third, you can be held liable if you are in actual or constructive control of the person hurting the other person.
The plaintiff argued that the man was liable under the first and third exceptions–because it was the man’s tomahawk that was used to injure the plaintiff and his friend who used it.
The appellate court disagreed. It explained that the owner merely owning the instrumentality is not enough to hold him or her responsible. An owner has a duty only when he or she is in “actual or constructive control” of the weapon or other instrumentality. In this case, the man did have control over his tomahawk when it was in his truck, but no longer had control once his friend reached into the truck and took the tomahawk without asking.
The appellate court also said there was no duty under the third exception. Where a defendant’s conduct creates “a foreseeable zone of risk,” the law may recognize a duty to reduce the risk or take precautions to protect others. However, the court will look at the frequency with which a particular negligent action has resulted in the same type of injury, such that foreseeability is possible.
In this case, the plaintiff argued that the man should have locked the door of the truck, or not tried to prevent him from escaping once the other man had the tomahawk. The appellate court reasoned that the man did not affirmatively give his friend the tomahawk or authorize him to grab it or even know that he had removed it from the truck. Therefore he had no duty or ability to control the friend.
The experienced South Florida personal injury attorneys at Friedman, Rodman & Frank can help you with cases like the one above. Call us toll-free for a free consultation at (877) 448-8585.
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