Am I my brother’s keeper? In Reider v. Dorsey, Florida’s Third District Court of Appeal answers this age-old question unequivocally. At least to the extent it arises in a drunken slugfest amongst so-called friends.
Dennis Dorsey and Robert Reider were drinking together in a Florida bar in late August 2007 when Reider became belligerent, saying that he wanted to fight everyone in the place. Dorsey told Reider he was “acting like an a******” and left the bar. Reider followed, along with another friend, Russell Noordhoek, who had also been drinking with the pair and like Dorsey and Reider was intoxicated. Reider then trapped Dorsey between the bed of his truck and an adjacent car and demanded an explanation.
As Dorsey and Reider argued, Noordhoek grabbed a land clearing tool called a “tomahawk” from Reider’s car. Seeing Noordhoek approach, Dorsey attempted to escape, pushing Reider to the side. As Dorsey and Reider scuffled, Noordhoek bashed Reider in the head with the tomahawk, knocking him unconscious. Noordhoek and Reider fled the scene and Dorsey later drove himself to an emergency room after regaining consciousness.
Dorsey later filed a personal injury suit against Reider, alleging that he owed Dorsey a duty of care to prevent Noordhoek from attacking him. Following trial, a jury found that Reider was liable for Dorsey’s injuries to the tune of more than $1.7 million in medical costs, lost wages and past and future pain and suffering.
On appeal, the Third District reversed the decision, ruling that Reider was not liable because he didn’t owe a duty of care to Dorsey to prevent him from being cracked upside the head by Noordhoek. “Under Florida law, there is generally no duty to control the conduct of a third person to prevent him or her from causing physical harm to another,” the court explained, citing the Fourth District’s 1999 decision in Carney v. Gambel. This basic legal principle does not apply, however, where a defendant has actual or constructive control of the instrumentality that caused the harm, the premises on which the harm was caused or the person who caused the harm.
Although Reider owned the tomahawk, the court found that he was not in control of the weapon once Noordhoek reached into Reider’s car and took it without permission. The court likened the situation to gun liability cases, in which the weapon’s owner is not liable for injuries caused by a third person using the gun without the owner’s permission.
Nor was Reider in control of Noordhoek at the time of the incident, according to the court. Florida employs a “zone of risk” test, under which a person whose conduct creates a “foreseeable zone of risk” is liable for any injuries incurred as a result. Here, the court found that Reider’s actions did not create a foreseeable risk that Noordhoek would bash Dorsey in the head with the tomahawk. “Merely providing access to an instrument – even a potentially dangerous one and even if that access is the result of negligence – does not equate to a duty to control another person’s use of that instrument,” the court explained.
Finally, while trapping Dorsey between the cars likely enabled the attack to happen, the court found no evidence showing that Reider and Noordhoek colluded before the strike, nor that Reider even knew that Noordhoek had grabbed the tomahawk.
As a result, the court remanded the case for judgment in Reider’s favor.
The South Florida personal injury attorneys at Anidjar & Levine provide free consultations and case evaluations for people injured in accidents throughout the area, including in Hialeah, Boca Raton and Fort Lauderdale. If you have suffered injury because of another person’s negligence, call for a free consultation today.
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