DO FLORIDA COURTS APPLY A DOUBLE STANDARD WHEN ANALYZING PROXIMATE CAUSE?
Andrew D. Stone , Esq. • Volume 3, Issue 11 November 2009

FACTS
On September 9, 2009, the 3rd DCA rendered its decision in Probkevitz v. Velda Farms, LLC, 34 Fla.L.Weekly D1842. The wrongful death lawsuit arose out of an intersectional auto collision which occurred while the minor decedent, Denise, was driving her mother’s vehicle without her mother’s permission and in violation of her restricted license.

On the evening in question, Denise and her friend advised Ms. Probkevitz, Denise’s mother, that they were going to walk to another girl’s apartment in the same complex where they lived. Ms. Probkevitz then went to sleep. Ms. Probkevitz testified that she was unaware that her daughter had taken her car keys until after she learned that the accident had happened.

The defense argued that Ms. Probkevitz was, at least in part, responsible for the accident because she failed to adequately supervise her daughter and impliedly consented to her use of the vehicle by allowing her to gain access to the car keys. The court ultimately allowed the jury to consider Ms. Probkevitz’ alleged negligence. After a seven day jury trial in Dade County, Florida, the jury returned a verdict for the defendant.

APPEAL
One of the main issues on appeal was whether the trial court erred in allowing the defense to place Ms. Probkevitz on the verdict form. The 3rd DCA first found that there was no record evidence presented to support such a ruling. They cited the fact that Ms. Probkevitz was sleeping at the time that her daughter apparently took the car keys, and that she didn’t know that her daughter and her daughter’s friend left the apartment complex until after she learned about the accident.

The Court then found that even if there were any facts that may have supported a finding of negligence against Ms. Probkevitz, it was not “so closely intertwined” with any negligence of the driver of the commercial vehicle so as to provide a basis for the admission of Probkevitz’ negligence into evidence.

In support of its decision, the 3rd DCA cited D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla. 2001) for the proposition that a remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not a proximate cause of the subsequent injuries. (Note: In D’Amario, the court held that it was error to permit evidence to be presented to the jury that the driver of an allegedly defective vehicle was intoxicated because the issue before the jury was the crashworthiness of the vehicle, not the plaintiff’s intoxication which served only as a “remote condition” which furnished the occasion for the vehicle’s uncrashworthiness.) The 3rd DCA then specifically held that the trial court erred in allowing the jury to consider the negligence of Probkevitz and more specifically, to present evidence regarding her knowledge of her minor daughter’s driving ability and history.

ANALYSIS
Pursuant to Y.H. Investments, Inc. v. Godales, 690 So.2d 1273 (Fla. 1997), the parents of a minor may be placed on the verdict form for a jury to consider whether their negligent supervision caused the minor’s injury. In addition, under Florida Law, a vehicle owner may be found to have impliedly consented to the use of their car depending upon several factors including the accessibility of the keys and the existence of a familial relationship between the owner and driver. See Ming v. Interamerican Car Rental, Inc., 913 So.2d 650 (Fla. 5th DCA 2005). Accordingly, it appears that an issue of fact was presented as to whether Ms. Probkevitz impliedly consented to her daughter’s use of her vehicle in violation of her learner’s permit.

In addition, there are multiple Florida cases where courts have found that legal causes of action exist against defendants because the defendants’ actions or inactions created a foreseeable or “broader zone of risk” that posed a general threat of harm to others. See McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992), Stevens v. Jefferson, 436 So.2d 33 (Fla. 1983). Arguably, by allowing her daughter to gain access to the car keys, Ms. Probkevitz created a “broader zone of risk” of harm to both her daughter and to others.

Despite the above, the 3rd DCA denied the defendant the opportunity to allow the jury to decide whether a percentage of negligence should have been allocated against the minor decedent’s mother. This recent decision may be interpreted by some to suggest that Florida courts may employ a double standard when conducting a proximate cause analysis depending upon the specific facts of the case and whether the analysis benefits the plaintiff or the defendant.

[BACK]