98 So. 3d 1223
Fla. Dist. Ct. App.2012Background
- Dorsey and Reider, both intoxicated, argued in a bar parking lot after Dorsey called Reider an 'asshole.'
- Dorsey was then attacked from behind by Noordhoek using a tomahawk, while Reider confronted Dorsey near his truck.
- Noordhoek retrieved the tomahawk from Reider’s truck; Reider could not recall the tomahawk or Noordhoek’s actions.
- Dorsey sued Reider for negligence seeking to hold him liable for Noordhoek’s independent act.
- The jury awarded Dorsey substantial damages; the trial court denied Reider’s motion for judgment notwithstanding the verdict.
- On de novo review, the appellate court reversed, holding Reider owed no duty to Dorsey and remanded for judgment in Reider’s favor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Control of the instrumentality | Dorsey argues Reider had control of the tomahawk and thus a duty. | Reider did not retain control once Noordhoek took the tomahawk without permission. | No duty; lack of control ends the duty. |
| Control over the tortfeasor | Dorsey argues foreseeability of harm creates a duty to restrain or protect. | Reider did not know Noordhoek had the tomahawk and could not control him; no duty arises absent control or collusion. | No duty; no foreseeability to impose duty under this theory. |
Key Cases Cited
- Michael & Philip, Inc. v. Sierra, 776 So.2d 294 (Fla. 4th DCA 2000) (duty of care question hinges on existence of a duty to control a third party)
- Carney v. Gambel, 751 So.2d 653 (Fla. 4th DCA 1999) (no general duty to control third parties absent special circumstances)
- Mercier v. Meade, 384 So.2d 262 (Fla. 4th DCA 1980) (owner not liable for third-party use of instrumentality absent entrustment)
- Mathis v. American Fire & Cas Co., 505 So.2d 652 (Fla. 2d DCA 1987) (access to instrumentality alone does not create duty)
- Keenan v. Oshman Sporting Goods Co., 629 So.2d 210 (Fla. 5th DCA 1993) (display case with easy access to guns; liability not imposed absent negligence in entrustment)
- Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain, 715 So.2d 343 (Fla. 4th DCA 1998) (foreseeable zone of risk analysis governs duty to prevent third-party harm)