McCain v. Florida Power Corp.

• Decision Date: 23 January 1992
• Docket Number: No. 75637,75637
• Parties: 17 Fla. L. Weekly S64 Thomas McCAIN, Petitioner, v. FLORIDA POWER CORPORATION, Respondent.
• Court: Florida Supreme Court

Page 500

593 So.2d 500

17 Fla. L. Weekly S64

Thomas McCAIN, Petitioner, v. FLORIDA POWER CORPORATION, Respondent.

No. 75637.

Supreme Court of Florida.

Jan. 23, 1992.

Rehearing Denied March 4, 1992.

Robert A. Herce of Herce & Herce, and J. Thomas Wright, Tampa, for petitioner.

Kenneth C. Deacon, Jr. and Marian B. Rush of Harris, Barrett, Mann & Dew, St. Petersburg, for respondent.

KOGAN, Justice.

We have for review Florida Power Corp. v. McCain, 555 So.2d 1269 (Fla. 2d DCA 1989), based on express and direct conflict with Kaisner v. Kolb, 543 So.2d 732 (Fla.1989), and Gulf Heating & Refrigeration Co. v. Iowa Mutual Insurance Co., 193 So.2d 4 (Fla.1966). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const.

Thomas McCain was injured when the blade of a mechanical trencher he was operating struck an underground Florida Power Corporation electrical cable. An employee of Florida Power had come out earlier and marked those areas where it would be safe to use the trencher. Although the evidence at trial was conflicting, there was some evidence indicating that McCain was in an area marked "safe" when he struck the cable. Later, a jury awarded McCain a verdict of $175,000, including a thirty-percent reduction for McCain's own comparative negligence.

On appeal, the Second District reversed and remanded for entry of a directed verdict for Florida Power, concluding that the injury was not foreseeable. The method of analysis used to reach this conclusion is somewhat unclear. The district court first cited a number of cases suggesting that foreseeability itself gives rise to the duty of care in a negligence action. McCain, 555 So.2d at 1270-71. Since duty is a question of law, an appellate court obviously could reverse based on its purely legal conclusion that no such duty existed.

Then, the district court acknowledged the seemingly contradictory holding of some Florida courts "that the question of foreseeability is for the trier of fact." Id. at 1271 (citing Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA), review denied, 411 So.2d 380 (Fla.1981)) (emphasis added). Without expressly disagreeing with this precedent, the district court went on to suggest that no duty existed in the present case as a matter of law because the specific injury suffered by McCain was not foreseeable. See id.

Finally, the court expressly stated that its opinion was based solely on the evidence adduced up to the time of Florida Power's motion for directed verdict, which occurred at the end of McCain's case-in-chief. The district court concluded that the denial of this motion was error and that everything occurring afterward was a nullity. Id. at 1270.

Initially, we note that the district court erred on this last matter. The law in Florida is clear that, once the motion for directed verdict is overruled and additional evidence is produced, any later review of the matter by the trial or appellate courts must take into account all the facts adduced both before and after the initial motion. Gulf Heating & Refrigeration Co. v. Iowa Mut. Ins. Co., 193 So.2d 4 (Fla.1966).

On the merits, we find that the district court erred in ordering a directed verdict. In the present case, Florida Power clearly was under a duty to take reasonable actions to prevent the general type of injury that occurred here. Moreover, there is sufficient evidence in the record to justify a reasonable person in believing that Florida Power breached this duty and that the breach proximately (i.e., foreseeably and substantially) contributed to the specific injury McCain suffered. Thus, the question of negligence could not be removed from the jury.

The confusion evident in the district court's opinion apparently arose from the fact that the question of foreseeability can be relevant both to the element of duty (the existence of which is a question of law) and the element of proximate causation (the existence of which is a question of fact). The temptation therefore is to merge the two elements into a single hybrid "foreseeability" analysis, or to otherwise blur the distinctions between them. A review of both precedent and public policy convinces us that such blurring would be incorrect, even though it often will yield the correct result. The present cause happens to be one of a minority of cases in which an imprecise foreseeability analysis would lead to the wrong result.

Contrary to the tacit assumption made by the district court, foreseeability relates to duty and proximate causation in different ways and to different ends. 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. See Kaisner, 543 So.2d at 735 (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983)). The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred. In other words, the former is a minimal threshold legal ¹ requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open. As is obvious, a defendant might be under a legal duty of care to a specific plaintiff but still not be liable for negligence because proximate causation cannot be proven.

It might seem theoretically more appealing to confine all questions of foreseeability within either the element of duty or the element of proximate causation. However, precedent, public policy, and common sense dictate that this is not possible. 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. ² As we have stated:

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.

Kaisner, 543 So.2d at 735 (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983)) (emphasis added); see Webb v. Glades Elec. Coop., Inc., 521 So.2d 258 (Fla. 2d DCA 1988). Thus, as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken. J.G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45 (1912).

The statute books and case law, in other words, are not required to catalog and expressly proscribe every conceivable risk in order for it to give rise to a duty of care. Rather, each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element. For these same reasons, duty exists as a matter of law and is not a factual question for the jury to decide: Duty is the standard of conduct given to the jury for gauging the defendant's factual conduct. As a corollary, the trial and appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant.

On the question of proximate causation, the legal concept of foreseeability also is crucial, but in a different way. In this context, foreseeability is concerned with the specific, narrow factual details of the case, not with the broader zone of risk the defendant created.

In the past, we have said that harm is "proximate" in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question. In other words, human experience teaches that the same harm can be expected to recur if the same act or omission is repeated in a similar context. ³ Cone v. Inter County Tel. & Tel. Co., 40 So.2d 148, 149 (Fla.1949). However, as the Restatement (Second) of Torts has noted, it is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent. Restatement (Second) of Torts Sec. 435 (1965). In such instances, the true extent of the liability would remain questions for the jury to decide.

On the other hand, an injury caused by a freakish and improbable chain of events would not be "proximate" precisely because it is unquestionably unforeseeable, even where the injury may have arisen from a zone of risk. The law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience. Thus, as the Restatement (Second) of Torts has noted, a trial court has discretion to remove the issue from the jury if, "after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that [the conduct] should have brought about the harm." Restatement (Second) of Torts Sec. 435(2) (1965).

Unlike in the "duty" context, the question of foreseeability as it relates to proximate causation...