Duty Of Care
A negligence action requires the proof of certain elements.
These include a duty of care towards the person injured, failure to provide that care in reasonable fashion and damages flowing from that negligent failure to provide care. The subject of when a duty of care arises has been considered by a number of cases in Florida that are binding on trial courts.
Florida has adopted what is called the foreseeable-zone-of-risk standard for the existence of a legal duty. The courts in Florida have held that when a person’s conduct foreseeably creates a broader zone of risk than exists for the general public a duty is created to prevent harm to people within that zone of risk. This concept of a foreseeable zone of risk has been used by the courts in a variety of circumstances. One case held a city liable for a crash that occurred when a police officer was pursuing a vehicle in a negligent fashion. This was even though the police car itself was not involved in the crash.
In another case, the Florida Supreme Court held that the daughter of a patient could sue a doctor for failing to inform the daughter that she should be tested for a disease that her mother had because the doctor was treating her mother and knew that the disease was likely passed on to the daughter. Ted Babbitt
Babbitt and Johnson, P.A. The Court held that the daughter was within the zone of risk and that it was foreseeable that the failure to tell the daughter to obtain the test might result in her getting the disease as her mother did.
Lawyers spend years in law school discussing duty and foreseeability. Negligence actions like other personal injury actions are handled by lawyers on a contingent fee basis meaning that they charge a percentage of recovery rather than an hourly fee. Lawyers who handle these cases need to be aware of problems created by the necessity of establishing a duty of care and how such duty can be proven.
Theodore Babbitt is senior partner in the law firm of Babbitt & Johnson, P.A., and is a member of the Inner Circle of Advocates, which is limited to the top 100 personal injury lawyers in the United States.