Florida Supremes Find Something Fishy in the Concept of "Duty" as a Limitation on Liability
One of the first lessons that first year law students learn in torts class is that tort liability does not extend to all harms caused by a tortfeasor, and we do not owe duties to the world at large. Indeed, if it were otherwise, we each would be insurers for harm that we may cause to others, no matter how remote or speculative the claim.
Rather, tort law imposes concepts such as duty, foreseeability, and proximate causation to limit a tortfeasor’s ultimate liability to certain people to whom he owed a duty who suffered personal injury or property damage proximately caused by the tortfeasor's conduct. Pure economic harm (such as lost profits) is deemed too remote and speculative to be compensable in negligence without some sort of accompanying physical injury or property damage. Thus, a driver who causes a traffic accident is not liable to the hundreds of people stuck behind him on a closed freeway who may have missed a meeting, failed to make a delivery, or missed a concert that they had expensive tickets for. He is liable, however, to the person who was physically injured, and to any other person whose car was damaged in the crash.
Last week the Florida Supreme Court issued an opinion that reflects a serious debate about the limiting principles of tort law. See Curd v. Mosaic Fertilizer, LLC, 2010 WL 2400384 (Fla. June 17, 2010). The fact that it comes from a case in which commercial fishermen were seeking damages for pollution of the ocean ensures that we will be hearing more about it in litigation over the Gulf of Mexico oil spill.
In Curd, a fertilizer manufacturer owned a phosphogypsum storage area near a tidal estuary in Florida. The property had a wastewater storage area that was overfilled, and the dikes around the pond were narrower than they were supposed to be. State and local authorities warned the company that the facility was in danger of a spill if there were even a few inches of tropical rain. As predicted, rains came, the dike gave way and pollutants ultimately spilled into Tampa Bay, allegedly killing the fish that commercial fishermen relied upon for their livelihood.
The fishermen sued, asserting common law negligence and a claim under Florida Statute section 376.313, which permits people to bring a private cause of action for damages from the discharge of pollutants. The intermediate court of appeal had held that the fishermen could not sue, as they had not suffered personal injury or property damage. After all, they did not own the fish in the sea.
The Florida Supremes reversed. Analyzing the plain language of the statute, they held that "damages" were not only physical injury and property damage, but also damage to the environment, including living creatures. The statute allowed anyone to sue for such harm. Moreover, following some earlier precedents, the court held that the liability under the statute was strict liability, and certain affirmative defenses ordinarily available at common law would be unavailable against the statutory claim. The court reasoned that the Legislature created a remedial scheme that should be liberally construed to allow any person who could demonstrate "damage" from a discharge to bring a claim.
The court also rejected the argument that the fishermen’s claim was barred by the economic loss doctrine. This was not a commercial transaction where warranty law could be expected to govern the parties’ expectations, the court reasoned, and the defendant was not a product manufacturer that had produced a product which injured only itself. As such, the court held that the principles underlying the economic loss doctrine simply did not apply to the case.
As for the negligence claim, the commercial fishermen, the court noted, were not like the public at large, in that they had a license from the state to regularly harvest the fish in Tampa Bay for profit. The court cited a series of common law decisions holding that fishermen suffered a special or unique harm – “a diminution or loss of livelihood” – which was not suffered by the public at large. This was sufficient to form a common law duty, the court reasoned, when combined with the foreseeability of a Tampa Bay release causing harm to Tampa Bay fishermen.
Justice Ricky Polston partially dissented and partially concurred. He agreed with the majority’s reading of the statute, including the fact that it should be liberally construed: “If the statute is overly broad as suggested by the [court below], that is an issue for the Legislature to address.”
But Justice Polston disagreed with the majority when it came to the common law claim for negligence. He began by noting that the Florida Supreme Court previously had abrogated the traditional tort requirement that a plaintiff suffer a personal injury or property damage. See Indemnity Ins. Co. v Am. Aviation, Inc., 891 So.2d 532 (Fla. 2004) (“in general, actionable conduct that frustrates economic interests should not go uncompensated solely because the harm is unaccompanied by injury to a person or other property”). In light of this radical departure from traditional tort law, Justice Polston argued that “the function of the duty element takes on a greater role to filter out the unwarranted claims.”
According to Justice Polston:
Commercial fishermen in Florida do not have a ‘special’ interest within the ‘zone of risk’ the majority finds [the defendant] to have created. Rather, commercial fishermen are few among the tens of thousands of Floridians who earn their living from healthy ocean waters. For example, in 2006, beach tourism alone contributed $24.1 billion to the state’s economy and provided 275,630 Floridians with jobs, earning them $7.7 billion. . . .
Although the majority rules that the commercial fishermen’s state licenses set them apart from the general population, if every state-licensed Floridian has a ‘special’ or ‘unique’ interest, then it seems there is endless ‘foreseeable’ liability. Commercial fisherman are a small group among thousands of licensed Floridians who can claim economic damages from pollution of coastal waters. For example, hotels and restaurants near the beach, seafood truck drivers, beach community realtors, and yacht salesmen are all licensed by the State to conduct commercial activities that may be negatively affected by the pollution of coastal waters. Because the commercial fishermen have not demonstrated that [the defendant] owed a specific, unique duty to protect their purely economic interests, I would disallow common law recovery in order to avoid subjecting defendants to limitless liability to an indeterminate number of individuals conceivably injured by any negligence.
