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Davis v. Dollar Rent a Car Systems11/17/2004
property owners to maintain the foliage for the benefit of others outside the premises. Whitt v. Silverman, 732 So. 2d 1106 (Fla. 3d DCA 1999). The Florida Supreme Court held that pursuant to McCain, the property owners' conduct created a foreseeable zone of risk posing a general threat of harm toward those entering and exiting the premises as well as those pedestrians and motorists using the abutting streets and sidewalks. Therefore, the court quashed the decision of the Third District Court and held that the property owners owed a duty of care to the pedestrians.
Duty of care is an essential element in any negligence action. The issue of duty is a question of law to be determined by the trial court as "a minimal threshold legal requirement for opening the courthouse doors" before the "more specific factual requirement" to prove causation can go to the trier of fact. McCain, 593 So. 2d at 502 (footnote omitted). In McCain, the Florida Supreme Court explained the legal analysis that we must employ when determining whether the defendant in a negligence action owed a duty of care to the plaintiff. In making this determination as a matter of law, we must focus "on whether the defendant's conduct foreseeably created a broader 'zone of risk' that poses a general threat of harm to others." Id. at 502 (citations omitted). Foreseeability is the crucial element in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. "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." McCain, 593 So. 2d at 503 (quoting Kaisner v. Kolb, 543 So. 2d 732, 735 (Fla. 1989)) (citations omitted). Because the perceived risk defines the duty the defendant must undertake, the scope of the duty increases as the risk increases. McCain, 530 So. 2d at 503. Therefore, in determining whether a duty was owed by the defendant, "the proper inquiry for the reviewing appellate court is whether the defendant's conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred." McCain, 593 So. 2d at 504. The court then explained:
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.
Id. at 503 (emphasis added). Hence if we determine that a foreseeable zone of risk was more likely than not created by Williams, a duty of care was created and the courthouse doors swing open to allow Davis to enter and litigate her claim on the merits. As the court in Henderson v. Bowden, 737 So. 2d 532 (Fla. 1999), noted in explaining the McCain zone of risk analysis, "No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists." Id. at 536 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts ยง 53, at 359 (5th ed. 1984)). In determining the threshold issue of lega
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