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Davis v. Dollar Rent a Car Systems11/17/2004
d not intrude onto the public way. Following prior Florida cases, the Third District Court of Appeal concluded that, where the foliage on a landowner's property did not intrude onto the public way, the landowner had no duty to maintain the foliage for the benefit of third parties located outside the property. Whitt v. Silverman, 732 So. 2d 1106, 1108 (Fla. 3d DCA 1999).
The Florida Supreme court quashed the Third District's decision. The high court referred to the concept of duty applied by the Third District as the "agrarian rule," and described it as being "dated." 788 So. 2d at 213-14.
The supreme court then engaged in an extended discussion of the duty a landowner should owe to third persons located outside the property and settled on the application of the court's previously articulated "foreseeable zone of risk" analysis to determine the existence of a duty. The actual holding of Whitt is very narrow, however. The holding of Whitt was that "a commercial business in an urban area specifically relying on the frequent coming and going of motor vehicles" was subject to its "foreseeable zone of risk" analysis as described in McCain. Id. at 222.
The question is whether Whitt's "foreseeable zone of risk" analysis, which gave rise to the duty to maintain foliage for the benefit of third parties located outside a commercial premises, also applies in a non-commercial context, and, if so, under what circumstances. The analysis in Whitt suggests to the majority that if "lack of visibility" caused by foliage impairs the ability of drivers to see and react to oncoming traffic or approaching pedestrians, the failure to trim this foliage creates a "foreseeable zone of risk" that the landowner is bound to remediate. It is certainly true that much of the analysis in Whitt would apply equally to any site, no matter whether urban, suburban or rural, and no matter whether commercial or noncommercial. On the other hand, the Whitt court took pains to limit its holding to a commercial property and the holding in Whitt expressly tied its reasoning to the fact that the driver was invited to come onto the property for business purposes and ingress/egress was controlled by the landowner. Id. In a non-commercial context like this case, no driver has been attracted to the property by the landowner's business and there is no need for or expectation of a "safe egress."
There are a couple of unsettling concepts in Whitt. If Whitt is not limited to a commercial context, it suggests that no defined rules of negligence apply any longer to landowners or possessors. In this regard, I note that the reporters working on the current revision to the Restatement of Torts appear to consider that separate rules still do apply. See Restatement Third, Torts: Liability for Physical Harm (Basic Principles), Tentative Draft No. 4 at 1(ALI, April 1, 2004). Second, the "foreseeable zone of risk" analysis used in Whitt appears to include the requirement to anticipate that third parties, including the victim, might themselves be negligent and to take preventative measures. In other words, Whitt requires the taking of affirmative steps to eliminate the environment in which a third party might act negligently. As in the facts of Whitt, for example, if the business owner could assume that the motorist leaving his property would exercise due care, then there would be no zone of risk. The Whitt court explained its decision in this way:
We conclude that an inquiry as to the liability of a landowner under the circumstances presented here of a commercial business in an urban area specifically relying on the frequent coming and going of motor vehicles should be guided by a foreseeability analysis, which, as we ha
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