Post by John Goldberg
In part what it means to take private law seriously is to be mindful of the proper application of basic legal concepts. In that spirit, I will from time to time point out instances of what I take to be sloppy legal analysis. Apologies to those who end up as blog fodder. Lord knows everyone makes mistakes.
Today’s example comes from a plain-vanilla, slip-and-fall case, Bongiorno v. Americorp, Inc., 159 So.3d 1027 (Fla. Ct. App. 2015). The plaintiff slipped while in a restroom in the office building in which she worked. She sued the owner on a premises liability claim.
The first problematic aspect of Bongiorno is the fact that an appellate decision was required to reverse the trial court’s ruling, in a bench trial, that the plaintiff was 50% at fault for wearing “four-to-five inch high-heeled shoes.” The trial judges seems to have been moved by defense counsel’s argument that, while there is no fault in wearing, 2-3 inch heels, the donning of these higher heels for work amounted to carelessness by the plaintiff.
Good lawyering by the defense, I suppose, but poor judging by the trial court. I’m no fashion maven, but 4-5 inch heels are hardly exotic, and surely it is wrong for the law to attribute fault to someone for wearing ordinary footwear to work. (Of course if the plaintiff saw that the floor was especially slippery and proceeded nonetheless, we might have a different case, but so far as I can tell there was no allegation of that sort.)
The second problematic aspect of Bongiorno is the route through which the appellate court got to the right result. It reasoned as follows: (1) comparative negligence is an affirmative defense; (2) the burden is therefore on the defendant to prove that plaintiff was negligent; (3) negligence has four elements – duty, breach, proximate cause and damages; and (4) there was no duty owed here because the plaintiff’s shoe choice did not “create a foreseeable zone of risk.”
Sigh. An allegation of comparative fault is not an allegation that the plaintiff has committed the tort of negligence. There is no “duty” element to comparative fault. The question is simply whether the plaintiff was careless as to her own physical wellbeing and whether that carelessness was a proximate cause of her injuries.
All the appellate court needed to say was that a person of ordinary prudence might well wear 4-5 inch high heels to work—it is not as if she was wearing ice skates or was walking on stilts. There should have been no fault assigned to the plaintiff, or at least nothing approaching 50% fault.