Borrack v. Reed

53 So. 3d 1253 (Fla. Dist. Ct. App. 2011)

 

RULE:

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.

FACTS:

The plaintiff filed a complaint essentially alleging that the defendant negligently played a prank which caused injuries to her. While the parties were dating, defendant induced plaintiff to climb to the top edge of a very high cliff on the shore of a lake despite plaintiff repeatedly advising defendant that she was not comfortable with the climb and was afraid to descend alone. Plaintiff further alleged that, once she was at the top of the cliff, defendant tricked her into jumping off of it into the lake, thus causing her injuries. The circuit court dismissed the case with prejudice, reasoning that the plaintiff failed to allege that the defendant created a "zone of risk." Plaintiff appealed.

ISSUE:

Is a prank capable of giving rise to a negligence action against the prankster?

ANSWER:

Yes.

CONCLUSION:

The appellate court found that plaintiff's second amended complaint alleged a set of facts which established that defendant created a foreseeable “zone of risk” and thereby owed a duty of care to plaintiff. 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. Defendant owed plaintiff 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. Plaintiff's characterization of defendant's alleged conduct in this case did not constitute an intentional tort under the "substantially certain" test. 

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