Borrack v. Reed - 53 So. 3d 1253 (Fla. Dist. Ct. App. 2011)

Rule:

The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader "zone of risk" that poses a general threat of harm to others. That element is a minimal threshold legal requirement for opening the courthouse doors. Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. Thus, as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.

Facts:

Randi Borrack alleged that, at a time when Borrack was dating Charles Reed, the latter induced Borrack to climb to the top edge of a very high cliff on the shore of a lake despite Borrack repeatedly advising Reed that she was not comfortable with the climb and was afraid to descend alone. Borrack further alleged that, once she was at the top of the cliff, Reed tricked her into jumping off of it into the lake, thus causing her injuries.

Issue:

Did Borrack sufficiently allege that Reed created a "zone of risk" for which Reed owed Borrack a duty of reasonable care?

Answer:

Yes.

Conclusion:

The appellate court found that Borrack’s second amended complaint alleged a set of facts which established that Reed created a foreseeable zone of risk and thereby owed a duty of care to Borrack. The alleged conduct created a foreseeable zone of risk in the form of a fall due to the terrain, gravity, or a combination of both. Reed owed Borrack a duty either to lessen the risk or see that sufficient precautions were taken to protect her from the harm which the risk posed. A prank was capable of giving rise to a negligence action against the prankster. Borrack’s characterization of Reed’s alleged conduct in this case did not constitute an intentional tort under the "substantially certain" test.