Stahl v. Metropolitan Dade County, 81-1497

Citation438 So.2d 14
Decision Date07 June 1983
Docket NumberNo. 81-1497,81-1497
PartiesJerome STAHL, as personal representative of the Estate of Andrew Stahl, a minor, deceased, for the benefit of Jerome Stahl and Georgia Stahl, as natural parents and survivors of Andrew Stahl, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
CourtCourt of Appeal of Florida (US)

Greene & Cooper and Marc Cooper and Sharon L. Wolfe, Donald J. Post, Miami, for appellant.

Virgin, Whittle & Garbis and Jack M. Sobel, Miami, for appellee.

Before HUBBART and DANIEL S. PEARSON, JJ., and EZELL, BOYCE F., Jr., (Ret.) Associate Judge.


This is an appeal from a final summary judgment for the defendant in a wrongful death action. The trial court concluded that the defendant's negligence, if any, was not as a matter of law the proximate cause of the minor decedent's death herein. We disagree and reverse.


The facts of this case, for summary judgment purposes, are as follows. On or about January 20, 1980, Andrew Stahl, a 13-year-old boy, was riding his bicycle to Palmetto Junior High School on a bicycle path built by the defendant Metropolitan Dade County on the north side of S.W. 128 Street in Dade County, Florida. Children like Andrew regularly used the path to ride their bicycles to school, a fact well-known to the defendant Dade County. The path was made of asphalt and was approximately five feet wide; it had been built in 1971 and thereafter received no maintenance. Because of the aforesaid lack of maintenance, the path became very bumpy in places where tree roots began growing underneath. Andrew, on his way to school, sought to avoid one such poorly maintained area which was bumpy and difficult to ride over with a bicycle. He, accordingly, drove off the path onto a parallel grassy area about five feet in width which had trees growing in it, and into the adjoining street where he was immediately struck and killed by an oncoming car. There is testimony that upon entering the grassy area Andrew would have struck one of the trees had he not headed into the street.

Jerome Stahl, Andrew's father and the personal representative of Andrew's estate, brought a wrongful death action below against the defendant Metropolitan Dade County alleging negligence in the maintenance of the bicycle path. The defendant, after discovery, developed the above facts, and moved for a summary judgment on the sole ground that "the uncontroverted facts contained in the record indicate that any alleged negligent act or omission of this [d]efendant was not the proximate cause of the accident sued upon," [R. 220], relying on Pope v. Cruise Boat Co., 380 So.2d 1151 (Fla. 3d DCA 1980). The trial court agreed and entered final summary judgment based

on the authority of the Pope case. The plaintiff appeals.


It is the established law of this state that to maintain a cause of action sounding in negligence, as here, the plaintiff must establish three elements. These elements are stated in the cases in slightly varying language and have no particular canonical form; they amount in substance, however, to the following:

(1) The existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff;

(2) A failure on the part of the defendant to perform that duty; and

(3) An injury or damage to the plaintiff proximately caused by such failure. 1

In the instant case, all agree that for summary judgment purposes the first two elements of the plaintiff's negligence (wrongful death) action are shown on this record, which is to say that genuine issues of material fact are presented as to these elements thereby precluding summary judgment thereon. Holl v. Talcott, 191 So.2d 40 (Fla.1965). It is solely the third element of "proximate cause" which is in dispute in this case. The defendant contended below, and the trial court agreed, that on this record the defendant's alleged negligent act or omission in failing to maintain the bicycle path in a reasonably safe condition was not, as a matter of law, the "proximate cause" of the death of the plaintiff's decedent when he was struck by an oncoming car in the adjoining street after having departed from said path. We are therefore required to consult the applicable Florida law on "proximate cause" in negligence actions as applied to the facts presented herein. We do so, however, with a certain degree of caution mindful that "[t]here is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion." W. Prosser, Handbook of the Law of Torts § 41, at 236 (4th ed. 1971).


It seems clear at the outset that the "proximate cause" element of a negligence action embraces, at the very least, a causation-in-fact test, that is, the defendant's negligence must be a cause-in-fact of the plaintiff's claimed injuries. In this respect, a negligence action is no different from any other tort action as clearly there can be no liability for any tort unless it be shown that the defendant's act or omission was a cause-in-fact of the plaintiff's claimed injuries. To be sure, such a showing, without more, is insufficient to establish the "proximate cause" element of a negligence action, but it is plainly a sine qua non ingredient thereof. See e.g., W. Prosser, Handbook of the Law of Torts § 41 (4th ed. 1971).

The Florida courts, in accord with most other jurisdictions, have historically followed the so-called "but for" causation-in-fact test, that is, "to constitute proximate cause there must be such a natural, direct, and continuous sequence between the negligence act [or omission] and the [plaintiff's] injury that it can reasonably be said that but for the [negligent] act [or omission] the injury would not have occurred." Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 230 (Fla. 1st DCA 1960) As pointed out by Prosser, however, there is one limited type of case where the "but for" test fails and has not been employed:

                cert. denied, 127 So.2d 441 (Fla.1961), relying on Seaboard Air Line Ry. v. Mullin, 70 Fla. 450, 70 So. 467, 470 (1915). 2  This has proven to be a fair, easily understood and serviceable test of actual causation in negligence actions, which test is currently in use as part of the Florida Standard Jury charges on this subject in the trial of negligence cases.  Fla.Std.Jury Instr.  (Civil) 5.1a. 3

"Restricted to the question of causation alone, and regarded merely as a rule of exclusion, the 'but for' rule serves to explain the greater number of cases; but there is one type of situation in which it fails. If two causes concur to bring about an event, and either one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed. Two motorcycles simultaneously pass the plaintiff's horse, which is frightened and runs away; either one alone would have caused the fright. A stabs C with a knife, and B fractures C's skull with a rock; either wound would be fatal, and C dies from the effects of both. The defendant sets a fire, which merges with a fire from some other source; the combined fires burn the plaintiff's property, but either one would have done it alone. In such cases it is quite clear that each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it; and it is equally clear that neither can be absolved from that responsibility upon the ground that the identical harm would have occurred without it, or there would be no liability at all."

W. Prosser, Handbook of the Law of Torts § 41, at 239 (4th ed. 1971) (footnotes omitted).

This court has, in effect, agreed with this analysis. Brandeis v. Felcher, 211 So.2d 606, 607-08 (Fla. 3d DCA), cert. denied, 219 So.2d 706 (Fla.1968). In these so-called "concurrent cause" cases [where each of the concurrent causes alone could have produced-in-fact the plaintiff's injury], the Florida courts have abandoned sub silentio the "but for" test and have employed instead a "substantial factor" test for the obvious reason that adherence to the "but for" test in this limited type of case leads to anomalous and unacceptable results. Asgrow-Kilgore Co. v. Mulford Hickerson Corp., 301 So.2d 441, 445 (Fla.1974); Loftin v. Wilson, 67 So.2d 185, 191 (Fla.1953); General Telephone Co. of Fla. v. Choate, 409 So.2d 1101 (Fla. 2d DCA), review denied, 418 So.2d 1278 (Fla.1982). 4 The "substantial factor" test is stated and explained in Loftin as follows:

"Whether or not the accident would have occurred under the circumstances notwithstanding some act or omission on the part of the railroad company is questionable. Prosser on Torts, p. 322. Of course, the fact of causation is never capable of mathematical proof, since no man can say with absolute certainty what would have occurred if another had acted otherwise. Defendant's conduct in an action for personal injuries is considered a cause of the event if it was a material and substantial factor in bringing it about. Whether it is such a substantial factor is for the jury to determine, unless the issue is so clear that reasonable men could not differ. Prosser on Torts, p. 324; 2 Restatement of Torts, p. 1159, Sec. 431."

Loftin v. Wilson, 67 So.2d 185, 191 (Fla.1953) (emphasis added).

This test, in turn, is also currently in use as part of the Florida Standard Jury charges on this subject in the trial of negligence cases. Fla.Std. Jury Inst. (Civil) 5.1b. 5 Properly viewed, then, Florida follows the "but for" causation-in-fact test in negligence cases, as modified by the limited "substantial factor" exception applicable only in those concurring cause cases where each of the said concurring causes could have alone produced the plaintiff's injury.


The "proximate cause" element of a negligence action embraces more, however, than the aforesaid "but for"...

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