Florida Legal Duty Analysis

11 Sep 2014

Florida Legal Duty Analysis

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I. Duty Analysis

The legal aspect of “duty” is linked to the concept of foreseeability and may arise from any one of four sources: (1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and/or (4) a duty arising from the general facts of the case. McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n. 2 (Fla. 1992)Although only one source is necessary for Plaintiffs to defeat Defendants’ Motions to Dismiss, at least 3 out of 4 of these sources are present in this case.

A. Judicial Precedent Giving Rise to a Legal Duty for All Counts of the Second Amended Complaint.

As per McCain, one of the ways a legal duty is created is via judicial precedent. Id. The application of the following five legal principles demonstrate that Defendants owed a legal duty to the Plaintiffs.

1. The chemical at issue is hazardous, and thus questions about whether a duty exist are resolved in Plaintiffs’ favor.

Both Danao’s and Botna-Don arguments ignore the fact that the chemical at issue in this case (the “Hazardous Material”), is classified by independent third parties as both a “Serious Hazard” and “Extremely Dangerous”. As noted by the Florida Supreme Court: “[A]s the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.” McCain v. Florida Power Corp., 593 So.2d 500, 503 (Fla. 1992) (citation omitted).

In United States v. Stevens, 994 So.2d 1062, 1067 (Fla.2008), the Florida Supreme Court held that the inability to measure the extent of the risk involved – by itself – merits the Plaintiffs with an opportunity to go forward. The Court stated as follows:

Given the allegations of negligent security of the ultrahazardous material and the virtual impossibility of potential victims to protect themselves once this substance is at large, this is obviously one of those cases we contemplated in McCain, where the risk of injury is great and the corresponding duty of the lab is heightened. In a very real sense, it is this inability to measure the extent of this risk that merits giving the claimants an opportunity to go forward. Of course, the ultimate outcome of this case and the law it develops will be determined by the actual facts of the case as established in the trial court.

(e.s.), Id. at 1070. Thus, the Court in Stevens held that a laboratory owed a duty of reasonable care to members of the general public to avoid an unauthorized interception and dissemination of bio-hazardous materials.

Although Stevens involved ultrahazardous material, the First District in Herndon v. Shands Teaching Hospital made it clear that the holding also applies to merely hazardous material and is not limited to ultrahazardous material:

Stevens merely applied the principles enunciated in McCain to a defendant’s negligent control of anthrax, a much more hazardous substance than the drugs involved here. However, there is nothing in Stevens or McCain that supports a finding of no duty by Appellee to Michelle Herndon, as a matter of law, for a risk created by negligent control of admittedly dangerous drugs. Stevens was a recognition of a duty under McCain and not a limitation of that duty to the supervision of hazardous drugs having the same hazardous level of anthrax (as concluded by the trial judge).

Herndon v. Shands Teaching Hospital, 23 So.3d 802, 804 (Fla. 1st DCA 2009) (e.s.). The 1st DCA in Herndon further held as follows:

The drugs used to murder Michelle Herndon were dangerous drugs that require a doctor’s prescription, and Appellee was entrusted with their proper use. Appellee’s failure to ensure their proper use created a ‘zone of risk,’ as it exposed the general public to a risk that Appellee could have avoided by taking reasonable measures to prevent the drugs’ theft and removal without a doctor’s authorization.

Id. at 803-804 (e.s.). Thus, cases involving hazardous materials, drugs or chemicals involve greater risks to society, and it is “this inability to measure the extent of this risk that merits giving the claimants an opportunity to go forward.” Stevens, 994 So.2d at 1070. The Hazardous Material thus fall within the rationale of these cases.

2. The specific injury need not be foreseeable or frequent.

The Defendants did not need to foresee the exact injury to Plaintiffs to have a duty towards them. Likewise, the type of injury does not have to be frequently suffered. As stated by the Florida Supreme Court in McCain:

As to duty, the proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.

McCain v. Florida Power Corp., 593 So.2d 500, 504 (Fla. 1992). (e.s.). “[T]he trial and appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant.” Id. at 502-03.

Recently, in Dorsey v. Reider, No. SC12-2197 (March 27, 2014), the Florida Supreme Court reversed a district court’s determination that it must “evaluate whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that `in the field of human experience’ the same type of result may be expected again.” The Court stated thatThis interpretation of our McCain decision and the proper test to be applied when determining if the defendant’s conduct has created a broad zone of foreseeable risk is incorrect.Instead, “[a]s to duty, the proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.”

As discussed infra in section 4, Plaintiffs were within the foreseeable zone of risk. Moreover, as discussed in the next section (section 3), the injury was foreseeable because the Plaintiff’s exact injury matches the exact type hazard present.

3. If the type of injury matches the type of hazard at issue, a duty exists.

In this case, the type of injury suffered (i.e. a child accidentally drinking a chemical), matches the hazard at issue (i.e. a pink colored, dangerous chemical). Because the type of injury suffered by the Plaintiffs matches the type of hazard, a legal duty exists.

As noted by the 4th DCA, “In applying the ‘foreseeable zone of risk’ test to determine the existence of a legal duty, the Supreme Court has focused on the likelihood that a defendant’s conduct will result in the type of injury suffered by the plaintiff.” Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co., 715 So.2d 343, 344 (Fla. 4th DCA 1998). This aspect of foreseeability requires a court to evaluate:

whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that `in the field of human experience’ the same type of result may be expected again.

(emphasis in original), citing Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441, 443 (Fla. 1961). Thus, in McCain, the supreme court held that power-generating equipment created “a zone of risk that encompasses all persons who foreseeably may come in contact with that equipment.” Id. citing McCain, 593 So.2d at 504.

Children swallowing hazardous chemicals is an injury frequently suffered. According to the Official Journal of the American Academy of Pediatrics, “Household cleaning products are responsible for many unintentional poisonings in children and are consistently in the top 5 categories for pediatric poisoning exposure.”1 There is even a reported case, Everhart v. O’Charley’s Inc., 200 N.C.App. 142, 161, 683 S.E.2d 728, 742 (2009), involving a plaintiff drinking the same or similar Botna-Don chemical product at issue in the instant case. It would be impossible to conclude that people accidentally drinking hazardous materials is not a type of injury foreseeable from a hazardous chemical.

Here, the injury (chemical ingestion by a child) is an extremely common hazard – universally recognized. Moreover, the Danao’s restaurant at issue caters to persons carrying out cups and drinks for consumption at their homes. ¶ 12. It cannot come as a surprise to anyone that the harm suffered by Plaintiff was caused by a chemical such as the Hazardous Material. Thus, clearly, the type of harm suffered by Plaintiff was foreseeably caused by the Hazardous Material.

4. The injury does not have to occur on the Defendant’s property.

Also, there is no merit to Defendant’s arguments that conclude property owners owe no duty to persons off-site. The instant case is not a “property owner liability case” whereby the Plaintiffs allege Defendants failed to maintain their land or that the premises were defective. Thus, cases about a landowner’s liability to invitees is inapplicable.2 In the majority of cases involving personal injury, “the problem has been treated as one of simple negligence.” W. Page Keaton Et Al., Prosser and Keaton on the Law of Torts § 57 (1984), at page 87.

Accordingly, whether or not the injury occurred on Defendant’s premises is irrelevant. The possessor of land is “required to exercise reasonable care, with regard to any activities which he carries on, for the protection of those outside his premises.” Id. Thus, for example, the possessor of land is negligent if it “runs a factory so that it gives out unnecessary noise or smoke.” Id. See also Restatement (Second) of Torts § 371 (1965) (possessor of land may be subject to liability for physical harm to others outside land caused by activity carried on by possessor thereon); Clay Electric Cooperative, Inc. v. Johnson Inc., 873 So.2d 1182 (Fla. 2003) and Ivan Martinez v. Florida Power and Light Company, 863 So.2d 1204 (Fla. 2003) (utility companies had a legal duty to third parties (children killed in separate vehicular accidents) when street lighting installed in the vicinity of the accidents was not operating due to alleged failure of the utilities to maintain it).

5. The parties can be complete strangers for a duty to exist.

Defendant Danao’s claims there has to be a “connection” between it and Plaintiff or some other relationship for a duty to exist – this is incorrect. As discussed above, the Florida Supreme Court has recognized that a duty of reasonable care arises whenever a defendant’s conduct poses a generalized and foreseeable risk of harm to persons or property. McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla.1992). Thus, there are at least two general situations where no special relationship is required for an employer to be liable for its employee’s actions: Chattels of the Defendant and Zone of Risk Created by Landowners.

a. Chattel of Defendant – Both the Hazardous Material and Danao’s Carry-Out Cups

Defendant Danao’s Motion, at page 5, identifies one exception: the Second Restatement of Torts, Section 317 (entitled “Duty of Master to Control Conduct of Servant”). See also McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So. 2d 198 (Fla. 4th DCA 1970) (applying § 317). Section 317 specifically applies to situations where a servant is acting outside his employment and imposes liability in circumstances when an employee uses an employer’s chattel – even offsite. Comment (b) to Section 317 explains that the master as such is under no duty to control the conduct of his servant while he is outside of the master’s premises, unless the servant is at the time using a chattel entrusted to him as servant.” (e.s.). Here, both Danao’s to-go cups and their Hazardous Material was used by Mr. Madan, with Danao’s permission.

The example described by Comment (c) to the Restatement Section 317 also makes it clear that no relationship is necessary between the Defendant and the injured. In that example, “a railroad company which knows that the crews of its coal trains are in the habit of throwing coal from the cars as they pass along tracks laid through a city street, to the danger of travelers, is subject to liability if it retains the delinquents in its employment, although it has promulgated rules strictly forbidding such practices.” The passengers of the cars were complete strangers to the railroad company but the railroad company is still liable per Section 317.

It is also notable that Danao’s did not fire or otherwise discipline Mr. Madan when knowing he was leaving with the Hazardous Material and taking it home. As per Comment (c) to Section 317, “There may be circumstances in which the only effective control which the master can exercise over the conduct of his servant is to discharge the servant. Therefore the master may subject himself to liability under the rule stated in this Section by retaining in his employment servants who, to his knowledge, are in the habit of misconducting themselves in a manner dangerous to others.” Danao’s actually provided the Hazardous Material to Mr. Madan knowing he was taking it home in a to-go cup. Moreover, Danao’s also did not notify the authorities upon knowing he was taking the Hazardous Material home – instead they impeded the investigation.

b. Zone of Risk Created by Landowner

Additionally, when a landowner creates a “zone of risk” then the landowner can be held liable in negligence for an injury that took place off the landowner’s property. Daly v. Denny’s, Inc., 694 So.2d 775, 777 (Fla. 4th DCA 1997), citing Thunderbird Drive-In Theatre v. Reed, 571 So.2d 1341 (Fla. 4th DCA 1990). Thus, as per the Restatement (Third) of Torts containing the principles applicable to liability for physical harm:

[e]ven when the actor and victim are complete strangers and have no relationship, the basis for the ordinary duty of reasonable care … is conduct that creates a risk to another. Thus, a relationship ordinarily is not what defines the line between duty and no-duty; conduct creating risk to another is.

Restatement (Third) of Torts § 37, Reporter’s Note, cmt. c. Because the requirement of privity no longer plays a role in negligence claims, “[w]hen a defendant causes physical harm through misfeasance—affirmative acts of negligence— rather than nonfeasance, he [or she] is liable to the foreseeably injured person for the harm.” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008)3, citing 2 Dan B. Dobbs, The Law of Torts § 321, at 870 (2001).

Likewise, the Third Restatement of Torts, Section 37, contains the principles applicable to liability for physical harm. Comment (c) to Section 37 states as follows:

[e]ven when the actor and victim are complete strangers and have no relationship, the basis for the ordinary duty of reasonable care … is conduct that creates a risk to another. Thus, a relationship ordinarily is not what defines the line between duty and no-duty; conduct creating risk to another is.

Restatement (Third) of Torts § 37, Reporter’s Note, cmt. c. Restatement (Third) of Torts § 37, Reporter’s Note, cmt. d. Likewise, Comment (d) to Restatement Section 37 states:

For courts concluding, often influenced by § 315 of the Second Restatement, that absent a special relationship an actor has no duty to control third parties, see [citations omitted]. To be accurate, these statements about the lack of a duty to control third parties need qualification: an actor owes a duty of reasonable care when the actor’s conduct contributes to the risk of a third party harming another. . . .

That § 315 of the Restatement Second of Torts is so qualified is revealed by § 302B, Comment e, which addresses a duty of care with respect to third parties when “the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such [third-party] misconduct.” This language thus contemplates liability for an actor who creates a risk of another’s misconduct. Similarly, § 449 of the Second Restatement, addressing superseding causes, reveals that an actor can be liable for failing to take precautions with regard to the dangers posed by a third party, not only when a special relationship exists pursuant to § 315, but also when the actor’s conduct has created a risk of harm by a third person.

(e.s.).

Illustration #1 to Restatement Section 302A also makes it clear there need not be a connection between the injured and the tortfeasor. In that example, a passenger in a car is injured from the conduct of a total stranger:

A leaves a hole in the street, which would be quite obvious to an attentive automobile driver, but might easily not be discovered by an inattentive driver. B, a driver who is not keeping a proper lookout, drives into the hole and person C is injured as a guest in B’s automobile. A may be found to be negligent toward B.

Similarly, a common law duty is recognized, regardless of intervening criminal conduct, when a person’s actions “creates `a foreseeable zone of risk’ posing a general threat of harm to others … to ensure that the underlying threatening conduct is carried out reasonably.” Stevens, 994 So.2d at 1067; McCain, 593 So.2d at 503.

Here, the Defendants created a zone of risk to Plaintiffs from the fact that they live within a mile a half from the Danao’s restaurant, they live within the restaurant’s “territory”, the restaurant actively markets and provides carry-out food and drink to persons within its “territory” and for consumption by “everyone” (regardless of the purchaser), and Plaintiffs could reasonably be expected to consume Danao’s food and/or drink from their home. It was no surprise to anyone that Plaintiff B.W. drank from a Danao’s restaurant to-go cup, a carry-out restaurant within walking distance from his home. Clearly, a legal duty exists.

B. Legislative Enactments and Regulations Giving Rise to A Legal Duty.

A legal duty can arise solely from legislative enactments and regulations. See McCain v. Fla. Power Corp., 593 So. 2d at 503 n. 2. Here, in addition to judicial interpretations, the Defendants’ legal duty also arises directly from the following legislative enactments and administrative regulations: Florida Admin. Code 64E-11.004, OSHA’s Hazardous Communication Standards (“HazCom”), and the Hazardous Materials Transportation Act (“HMTA”).

1. Florida Admin. Code 64E-11.004 protects both Danao’s employees and “other persons”.

Florida Amin. Code 64E-11.004, Section 21(d) provides that “Poisonous or toxic materials shall not be used in a way that contaminates food, equipment, or utensils, nor in any way that constitutes a hazard to employees or other persons, nor in a way other than in full compliance with the manufacturer’s labeling.” (e.s.). Thus, “other persons” (i.e. persons other than a restaurant’s employees) are within the foreseeable zone of risk as per the language of Florida Amin. Code 64E-11.004. Florida Admin. Code 64E-11.004, Section 21(b) also states that “Poisonous or toxic materials shall be stored separate from food, food equipment, utensils, or single-service articles.” According to 64E-11.002 (Definitions), a single-service article specifically includes cups.

Therefore, Florida Admin. Code 64E-11.004 creates a legal duty on Danao’s (and, by way of contract, to Botna-Don) to refrain from putting poisonous materials in their cups and from ensuring their employees do the same. The Code specifically states that this is for the benefit of persons other than the Defendant’s employees. The foreseeable injury contemplated by Florida Admin. Code 64E-11.004, which specifically prohibits poisonous or toxic materials to be stored in cups, is that someone may drink from that cup and ingest the material from the cup. That type of injury, the ingestion of the poisonous chemical from a to-go cup, is the exact type of injury suffered in this case. See Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co., 715 So.2d 343, 344 (Fla. 4th DCA 1998) (the focus of the duty inquiry is the type of injury suffered and the type of harm at issue).

2. Failing to comply with HazCom, as per a HazCom expert, creates a foreseeable harm to households.

HazCom specifically requires employers to perform certain training for their employees regarding the care and handling of the Hazardous Material. To this end, Plaintiffs attached a preliminary expert opinion as Exhibit A to their complaint. As stated therein:

In summary, it is my opinion that if an Employer effectively conveys the hazards of workplace chemical, and provides the appropriate personal protective equipment for its employees to use when handling these chemicals, that an employee will be less likely to take dangerous chemicals into a household, and risk injury to others.

(e.s.).

Pursuant to Rule 1.130(b), “Any exhibit attached to a pleading shall be considered a part thereof for all purposes.” Thus, Plaintiffs allegations include expert witness opinion that the failure to properly train employees about this Hazardous Material creates a foreseeable risk to persons in households. This legal duty extends to both Danao’s and Botna-Don (whom agreed contractually to perform the Hazcom training to Danao’s managers/supervisors).

3. HMTA protects persons off Danao’s property and away from the equipment owned by Botna-Don.

Danao’s and (by way of contract) Botna-Don also had the duty to comply with the Hazardous Materials Transportation Act (HMTA). As described in ¶ 64- 66, the HMTA mandates that hazardous material is transported in a safe manner by licensed personnel via specialized and properly labeled containers. The main method Danao’s employees could violate HMTA would be to transport the material outside from the Danao’s restaurant. Similarly, as Botna-Don owned the equipment used with the Hazardous Material, the way HMTA would be violated is if it were transported off that cite (i.e. the Danao’s restaurant).

Here, Defendant Danao’s provided Mr. Madan with the Hazardous Material and permitted him to take it home in a Danao’s sushi cup — all in direct violation of the HMTA. Danao’s employees, whom should have been trained by both Danao’s and Botna-Don4, removed the Hazardous Material off-site in violation of HMTA. Thus, it is foreseeable that persons living with Mr. Madan would be harmed by permitting an employee to take home a pink, liquid chemical that is both a “Serious Hazard” and “Extremely Dangerous” in a restaurant cup.

C. Legal Duty Arising from the General Facts of the Case.

A legal duty also can arise solely from the facts of the case, as described below. See McCain v. Fla. Power Corp.,593 So. 2d at 503 n. 2 (a legal duty may arise from laws, regulations and from the general facts of the case). Florida courts have consistently relied upon the Restatement of Torts as to whether the facts of a case establish a legal duty. See e.g. United States v. Stevens, 994 So.2d 1062 (Fla. 2008) (laboratory owed a duty of reasonable care to members of the general public to avoid an unauthorized interception and dissemination of bio-hazardous materials). Applying the facts of the case to each count of the Second Amended Complaint, as done below, also demonstrates a legal duty.

1. Count I – Negligent Hiring Against Danao’s

a. Ignored Facts

Defendant Danao’s ignores the following pled facts when arguing that Plaintiffs failed to state a cause of action for Negligent Hiring. Specifically the following:

¶ 11. Danao’s offers sushi and drinks to persons in the local community — including persons that dine in and carry home their food and drink.

¶ 12. . . . . it is both common and encouraged by Danao’s for persons to order Danao’s carry out and take it home where it is consumed by “everyone”.

¶ 13. Because of the Plaintiffs’ home was in close proximity to the Danao’s restaurant at issue and/or within its franchise “territory,” they were within the zone of persons whom would be reasonably expected to either patron Danao’s and/or consume its food and drink at their home.

¶ 19. The Hazardous Material is not readily available to the general public, is not permitted to be transported by anyone without a special licensing, and was specially delivered by trained and experienced Botna-Don representatives to Danao’s.

¶ 20. The Hazardous Material is a pink liquid, has a pleasant odor and resembles the Kool-Aid type of children’s drink.

¶ 52. Mr. Madan’ job responsibilities at Danao’s included and/or required access to and/or included unsupervised access to the Hazardous Material.

¶ 53. At the time he was hired by Danao’s, Mr. Madan had no prior experience working with hazardous materials (including the Hazardous Material) and had only, at best, a high school diploma.

¶ 96. Due to Mr. Madan’ background and lack of experience, it was unreasonable to hire Mr. Madan for a position which either dealt with or had unrestricted access to the Hazardous Material.

¶ 32, 33, 36 and 37. The Hazardous Material Mr. Madan was hired to work with is a “Serious Hazard,” with “Major injury likely unless prompt action is taken and medical treatment is given,” and that it is “Extremely Dangerous: Avoid skin contact and inhalation.” As per paragraphs 27, 28, and 34, these are direct quotes from the Material Safety Data Sheet, the Hazardous Materials Identification System and the National Fire Protection Association about this exact type of chemical (i.e. the Hazardous Material).

64. Transportation of the Hazardous Material from the Danao’s site is illegal without being a licensed Hazardous Waste Transporter as per the Hazardous Materials Transportation Act (“HMTA”) and related regulations. The HMTA makes sure that material, such as the Hazardous Material, is transported in a safe manner by licensed personnel via specialized and properly labeled containers.

65. Neither Danao’s nor Mr. Madan hold Hazardous Waste Transporter licenses; nor is a sushi restaurant cup a proper container for the transportation of the Hazardous Material per HMTA.

66. Danao’s provided Mr. Madan with permission to transport the Hazardous Material to Plaintiffs’ home on or about April 21, 2013 in a Danao’s sushi cup while knowing that Mr. Madan did not have a proper license to transport the material and in violation of Admin. Code 64E-11.004. See also Exhibit B to the Complaint – a sworn declaration by a witness stating that Mr. Madan had permission to transport the material.5

90. Danao’s had a duty to hire an appropriate person to work with and around the Hazardous Material.

¶ 93. An appropriate investigation into Mr. Madan should have included a review of his work history (or lack thereof), a review of his licenses to transport hazardous materials (or lack thereof), a simple internet/Facebook search, and a FLDE background check that is readily available for either no charge or a minimal fee.

94. An appropriate investigation into Mr. Madan would have revealed the unsuitability of Mr. Madan for the duties he was performing.

95. Had Danao’s conducted a reasonable investigation prior to hiring Mr. Madan, it would have learned information that should have caused Danao’s to either 1) assign him to duties that did not involve unrestricted access and handling of the Hazardous Material and/or 2) lessen the dangers associated with that type of chemical agent by altering the position to use a less dangerous soap, chemical or detergent than the Hazardous Material.

b. Analysis

To bring a prima facie case for negligent hiring, a plaintiff must demonstrate that:

(1) the employer was required to make an appropriate investigation of the employee and failed to do so; (2) an appropriate investigation would have revealed the unsuitability of the employee for the particular duty to be performed or for employment in general; and (3) it was unreasonable for the employer to hire the employee in light of the information he knew or should have known.

Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002). A critical component of the analysis is the job duties that will be performed by the prospective employe. Williams v. Feather Sound, Inc., 386 So.2d 1238, 1239-40 (Fla. 2nd DCA 1980) (“We think that in analyzing the employer’s responsibility to check out an applicant’s background, it is necessary to consider the type of work to be done by the prospective employee.”). As described below, the job duties of Mr. Madan involved direct control, contact and handling of the Hazardous Material.

i. Because Mr. Madan’ position included direct contact and control of the Hazardous Material, Danao’s had a duty to make sure he was qualified and responsible for the job.

Mr. Madan was hired to work directly with a chemical classified by its “Material Safety Data Sheet” (MSDS) as a 3 out of 4, meaning it is a Serious Hazard” and “Major injury likely unless prompt action is taken and medical treatment is given.” Additionally, according to the National Fire Protection Association‘s rating (“NFPA”), the rating for the Hazardous Material is also a 3 out of 4, meaning it is Extremely Dangerous.” It cannot be transported off Danao’s restaurant site by persons whom are not properly licensed per the HMTA. Danao’s is also governed by the requirements of Florida Admin. Code 64E-11.004 regarding the storage of the material in drinking cups and Hazcom. Thus, because of the dangerous nature of the Hazardous Material, Danao’s was required to make an appropriate investigation of the employee it chose to work with and provide unsupervised control over the Hazardous Material.

As explained by the Florida Supreme Court:

We have also explained that as a general proposition the greater the risk of harm to others that is created by a person’s chosen activity, the greater the burden or duty to avoid injury to others becomes. Thus, as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.

Stevens, 994 So.2d 1062, 1067 (Fla. 2008), (c.o.) (e.s.).

When deciding to hire for Mr. Madan’ position, Danao’s was required to make an investigation into whether he was qualified for the risks associated with the Hazardous Material. This would have included whether or not he had training and/or experience with this type of chemical, or any other type of hazardous materials. Since Danao’s permitted Mr. Madan to take the Hazardous Material, it also would have included whether he was properly licensed to transport it and knew the proper containers for transporting it. The position included unrestricted access to a commercial chemical hazard both when Mr. Madan was on the clock and off. ¶ 60.

ii. The application of Section 317 of the Restatement also establishes a legal duty.

Danao’s Motion to Dismiss, at page 5, cites Restatement Section 317 as a proper tool for analysis of whether a duty exists. Second Restatement of Torts § 317, entitled “Duty of Master to Control Conduct of Servant,” provides as follows:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if:

a. the servant

i. is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

ii. is using a chattel of the master, and

b. the master

i. knows or has reason to know that he has the ability to control his servant, and

ii. knows or should know of the necessity and opportunity for exercising such control.

The comment to Section 317 states (e.s.):

So too, he [the master] is required to exercise his authority as master to prevent them [servants] from misusing chattels which he entrusts to them for use as his servants. This is true although the acts of the servant … in the use of the master’s chattels are done wholly for the servant’s own purposes and are, therefore, outside the course of the servant’s employment and thus do not subject the master to liability under the rules of the law of Agency. On the other hand, the master as such is under no duty to control the conduct of his servant while he is outside of the master’s premises, unless the servant is at the time using a chattel entrusted to him as servant.

See also McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So. 2d 198 (Fla. 4th DCA 1970) (applying § 317 to find an employer liable for the negligent acts of a servant which were unconnected with the servant’s duties and outside the scope and course of employment.); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008) (employer’s failure to notify its employees of the dangers associated with asbestos or to provide alternatives for employees to wearing their contaminated clothing home created a risk of disease from asbestos for the employee’s families and therefore had a duty of reasonable care).

Analyzing Section 317 element by element proves it was met in this case. Section 317(a)(ii) is met because the servant [Mike Madan] was using a chattel of the master [the Hazardous Material].6

Section 317(b)(i) is met because Danao’s “knows or has reason to know that he has the ability to control his servant.” Danao’s was his employer and could reassign, discipline or fire him. See also Comment c to the Restatement of Torts, Section 317 (There may be circumstances in which the only effective control which the master can exercise over the conduct of his servant is to discharge the servant.”). Not only did Danao’s fail to discipline, discharge or call the authorities, it literally permitted Mr. Madan to take home the Hazardous Material in a Danao’s to-go cup. Easily, Danao’s could have controlled Mr. Madan as its employee.

Section 317(b)(ii) is met because Danao’s “knows or should know of the necessity and opportunity for exercising such control” over Mr. Madan. The “necessity” of controlling Mr. Madan is clear from the nature of the Hazardous Material Danao’s provided Mr. Madan access to and required him to work with – in fact, it is legally and specially required by Hazcom (as well as the Florida Administrative Code and HMTA). Hazcom legally requires an employer to train its employees in the safety, handling and care of the Hazardous Material. Again, as per the rationale in Stevens and Herndon, that the Hazardous Material is classified as both a “Serious Hazard” and “Extremely Dangerous” the necessity to control employees hired to work with is obvious.

The “opportunity” to control Mr. Madan is also clear from the fact that he was employed to work on-site at the Danao’s restaurant. During this time, Danao’s had the legal obligation and amply opportunity to train him as per Hazcom and the aforementioned related laws/regulations. It had the opportunity to control Mr. Madan’ actions by either securing the Hazardous Material or using a less dangerous chemical. Danao’s also had the opportunity the moment it decided to permit Mr. Madan to take home the Hazardous Material – active negligence (as opposed to an omission). It was on full notice that Mr. Madan was taking home this dangerous, pink chemical in a Danao’s to-go cup – Danao’s permitted him to take both the cup (an illegal container for transporting the Hazardous Material per HMTA) and the Hazardous Material. Moreover, the fact that the incident occurred off Danao’s premises is irrelevant because Mr. Madan was using the chattel Danao’s entrusted to him. As noted by Comment (b) Section 317:

So too, he [the master] is required to exercise his authority as master to prevent them [servants] from misusing chattels which he entrusts to them for use as his servants. This is true although the acts of the servant … in the use of the master’s chattels are done wholly for the servant’s own purposes and are, therefore, outside the course of the servant’s employment and thus do not subject the master to liability under the rules of the law of Agency. On the other hand, the master as such is under no duty to control the conduct of his servant while he is outside of the master’s premises, unless the servant is at the time using a chattel entrusted to him as servant.

(e.s.). See also McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So. 2d 198 (Fla. 4th DCA 1970) (applying Section 317 to find an employer liable for the negligent acts of a servant which were unconnected with the servant’s duties and outside the scope and course of employment.); Williams v. Feather Sound, Inc., 386 So.2d 1238, 1240 (Fla. 2nd DCA 1980) (recognizing that an employer had no duty to investigate an applicant’s background where he was hired for outdoor maintenance of townhouses and minimal contact with tenants. However, the duty to perform an investigation increased when the employee was transferred to inside work with access to pass keys). Thus, all the elements of Section 317 are met.

iii. Misapplied case law

Defendant Danao’s cites Garcia v. Duffy, 492 So.2d 435, 441-42 (Fla. App.1986) for the notion that Danao’s had no duty to Plaintiffs. Garcia v. Duffy, 492 So.2d 435, 441-42 (Fla. App.1986) (holding that an employer had no duty to investigate an applicant’s background where job duties involved work outside). However, as mentioned by Danao’s, Garcia was relying upon the principles set forth in Restatement Section 317 – something satisfied as per the analysis in the previous section (ii). As per Defendant Danao’s Motion to Dismiss, at page 5:

The cause of action for negligent hiring or retention had it genesis in Mallory v. O’Neil, 69 So.2d 313 (Fla. 1954), which was based on section 317 of the Restatement (Second) of Torts. Under the rule, a plaintiff could recover based on the negligence of an employer who kept a known dangerous employee on the premises, and the employer would be liable for the employee’s acts when the acts caused damage to someone legally on the employer’s premises. Garcia v. Duffy, 492 So.2d 435 (Fla. 2nd DCA 1986).

The above, however, is a gross misstatement of the principles of Section 317 – the Section Defendant admits as the basis for Garcia (and Mallory).

As discussed in the previous section (section ii), Plaintiffs meet each of the elements of Section 317 of the Restatement. Thus, Defendant’s analysis of Garcia is misplaced because (even according to the Defendant) those cases are “based on section 317 of the Restatement (Second) of Torts.” Id.

2. Count II – Negligent Training Against Danao’s

Although Defendant Danao’s attempts to lump Plaintiffs’ Negligent Hiring, Training and Supervision Counts into a single analysis, each count is different. For negligent training, an employer is liable in tort for reasonably foreseeable damages resulting from the negligent training of its employees and agents. See, e.g., McFarland & Son, Inc. v. Basel, 727 So.2d 266 (Fla. 5th DCA 1999). Hazcom specifically imposes a legal duty on Danao’s to train its employees in the safety, handling and care of the Hazardous Material. A duty is also imposed to persons other than Danao’s employees as per Florida Administrative Code 64E-11.004 and HMTA.

a. Facts Ignored by the Defendant

¶ 38. Danao’s and the Hazardous Material were at all times relevant subject to the provisions of OSHA’s Hazardous Communication Standard (“HazCom”); and Danao’s was legally required to comply therewith. See Exhibit A, attached hereto.

¶ 43. HazCom requires that employers develop, implant, and maintain at each workplace, a written hazard communication program which at least describes how the criteria for labels and other forms of warning, material safety data sheets, and employee information and training will be met.

¶ 44. It is also an industry standard, based off the HazCom legal requirements, that companies working with chemicals such as the Hazardous Material create and enforce written policies such as those required and/or suggested by HazCom.

52. Mr. Madan’ job responsibilities at Danao’s included and/or required access to and/or included unsupervised access to the Hazardous Material.

¶ 53. At the time he was hired by Danao’s, Mr. Madan had no prior experience working with hazardous materials (including the Hazardous Material) and had only, at best, a high school diploma.

¶ 105. Danao’s was negligent in the implementation or operation of the training program required by HazCom, industry standards based upon HazCom, and training its employees regarding the requirements of the Florida Administrative Code 64E-11.004.

¶ 106. Danao’s also failed to train Mr. Madan to use proper gloves and eye protection, which are advised by the label of the Hazardous Material and MSDS, and mandate their use, thus causing its employees such as Mr. Madan not to appreciate the degree of hazard as it relates to taking the material offsite and/or putting it into a drinking cup.

¶ 107. Danao’s’ employees, and in particular Mr. Madan, failed to appreciate the danger and harm of the Hazardous Material because of Danao’s’ failure to comply with HazCom and train its employees as to proper compliance of Florida Admin. Code 64E-11.004.

b. Analysis

i. Hazcom specially requires training.

HazCom training requirements are significant, and described in ¶ 38 – 43 of the Second Amended Complaint ¶ 38 – 44. Among other things, it specifically requires employers to provide unrestricted employee access to the MSDS or equivalent. ¶ 40. HazCom requires appropriate training for employees to understand the related health and safety risks of the chemicals. ¶ 41. It requires that employers develop, implant, and maintain at each workplace, a written hazard communication program which at least describes how the criteria for labels and other forms of warning, material safety data sheets, and employee information and training will be met. ¶ 43.

Furthermore, a failure to train would increase the likelihood of injury to persons in their home. In fact, Plaintiff’s expert has already stated that “if an Employer effectively conveys the hazards of workplace chemical, and provides the appropriate personal protective equipment for its employees to use when handling these chemicals, that an employee will be less likely to take dangerous chemicals into a household, and risk injury to others.” (e.s.). See Exhibit A to the Second Amended Complaint. Without question, Danao’s had a legal duty under HazCom to provide training to its employees about the safety, handling and care of the Hazardous Material. Here, Danao’s utterly failed to perform this training.

ii. Danao’s and its employees were legally required to comply with Florida Admin. Code 64E and HMTA.

Danao’s also had the legal duty to take measures to make sure its employees complied with the Florida Amin. Code and HMTA as described supra on pages 12 – 14. The purpose of both Florida Admin. Code 64E-11.004 and HMTA is to protect “other persons” and persons off-site from the dangerous chemicals. Again, as detailed in supra on pages 4 – 5, a failure to train its employees regarding this chemical (which is classified as a “Serious Hazard” and “Extremely Dangerous”) would place Plaintiffs within the foreseeable zone of risk. Per HMTA, the Hazardous Material cannot even be transported off-site without a proper license – none of which the Danao’s employees held. They, or the persons who live with them, are persons that could reasonably be expected to patron the Danao’s restaurant and consume its food and drink from home. If HMTA was not followed, it is reasonable to assume that persons living near the Danao’s restaurant and/or whom consume its food and drink from home (such as the Plaintiffs) can be injured. Thus, the Plaintiffs are within the foreseeable zone of both Florida Admin. Code 64E-11.004 (as “other persons”) and HMTA (as persons whom are off-site, but still within walking distance, from the Danao’s restaurant).

iii. Restatement Sections 302A and 290(a) also demonstrate a failure to train could foreseeably injure the Plaintiffs.

The Restatement Sections 302(a) and 290(a) also show that Defendant’s failure to train its employees to use, store and care for the Hazardous Material could harm Plaintiffs. Those Restatements make it clear that a party’s reckless conduct must take into account the “qualities and habits” of human beings – which in the instant case includes the fact that children commonly ingest poorly stored chemicals.

Second Restatement of Torts, Section 302A [Risk of Negligence or Recklessness of Others] states: “An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person.” An illustration to Section 302A provides as follows:

1. A leaves a hole in the street, which would be quite obvious to an attentive automobile driver, but might easily not be discovered by an inattentive driver. B, a driver who is not keeping a proper lookout, drives into the hole and is injured. A may be found to be negligent toward B.

2. The same facts as in Illustration 1, except that the person injured is C, a guest in B’s automobile. A may be found to be negligent toward C.

(e.s.).7

Similar to Example 2 to Section 302A, Plaintiffs and Mr. Madan lived in the same abode. Therefore, failing to train Mr. Madan could foreseeably harm both him and those he lives with “ through the negligent or reckless conduct of” Mr. Madan.

Moreover, “For the purposes of determining whether the actor should recognize that his conducts involves a risk, he is required to know the qualities and habits of human beings and animals and the qualities, characteristics and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community.” Restatement Section 290(a). A common quality of human beings includes the fact that people are at risk of drinking chemicals unsafely kept or handled.8 In fact, in the case of Everhart v. O’Charley’s Inc., 200 N.C.App. 142, 161, 683 S.E.2d 728, 742 (2009), an adult accidentally drank the same or similar Botna-Don product and suffered throat injuries as a result.

This type of harm, people drinking hazardous material, is therefore foreseeable in the context of a pink commercial chemical cleaner. Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co., 715 So.2d 343, 344 (Fla. 4th DCA 1998) (whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that `in the field of human experience’ the same type of result may be expected again.). That Mr. Madan was also negligent is irrelevant. United States v. Stevens, 994 So.2d 1062, 1067 (Fla.2008) (A common law duty is recognized, regardless of intervening criminal conduct, when a person’s actions create `a foreseeable zone of risk’).

iv. The nature of the Hazardous Material involves a greater zone of risk.

It bears repeating that because the chemical at issue is a “Serious Hazard” and “Extremely Dangerous,” a greater zone of risk is created. See supra beginning on page 4. Plaintiffs lived within Danao’s “territory” and within a mile and a half from the Danao’s restaurant. Thus, they are within a zone of risk of an unkept Hazardous Material within walking distance from their house.

3. Count III – Negligent Supervision Against Danao’s

Plaintiffs’ Negligent Supervision count should likewise survive Defendant’s Motion to Dismiss. “Negligent supervision occurs when during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further actions such as investigation, discharge, or reassignment.” Dep’t of Envtl. Prot. v. Hardy, 907 So. 2d 655, 660 (Fla. 5th DCA 2005).

a. Facts Ignored by the Defendant

60. Danao’s permitted Mr. Madan access to the Hazardous Material, even permitting him to be at work even when he was not needed; thus, permitting him with unnecessary, excessive and/or unsupervised access to the Hazardous Material.

¶ 64. Transportation of the Hazardous Material from the Danao’s site is illegal without being a licensed Hazardous Waste Transporter as per the Hazardous Materials Transportation Act (“HMTA”) and related regulations. The HMTA makes sure that material, such as the Hazardous Material, is transported in a safe manner by licensed personnel via specialized and properly labeled containers.

¶ 65. Neither Danao’s nor Mr. Madan hold Hazardous Waste Transporter licenses; nor is a sushi restaurant cup a proper container for the transportation of the Hazardous Material per HMTA.

66. Danao’s provided Mr. Madan with permission to transport the Hazardous Material to Plaintiffs’ home on or about April 21, 2013 in a Danao’s sushi cup while knowing that Mr. Madan did not have a proper license to transport the material and in violation of Admin. Code 64E-11.004. See Exhibit B, attached hereto.

121. Danao’s also failed to supervise Mr. Madan by permitting him to be at work even while not working, because he “has no life;” thus, permitting Mr. Madan with unnecessary and excessive unsupervised access to the Hazardous Material.

¶ 123. Danao’s permitted Mr. Madan to take the Hazardous Material off Danao’s premises.

b. Analysis

Danao’s provided Mr. Madan with permission to transport the Hazardous Material to Plaintiffs’ home on or about April 21, 2013 in a Danao’s carry-out cup while knowing that Mr. Madan did not have a proper license to transport the material. This violated Admin. Code 64E-11.004 and Hazcom because he put the Hazardous Material into a cup. This violated the HMTA because Mr. Madan transported the Hazardous Material in an unlawful container without a proper license. Danao’s supervision of Mr. Madan was both negligent and unlawful.

Danao’s also provided Mr. Madan with unfettered access to the Hazardous Material, permitted him to be around it even when he was not working, and instead of supervising him actually permitted him to bring it to Plaintiffs’ home in a Danao’s carry-out cup. ¶ 77. As mentioned supra beginning on page 4, because Defendant Danao’s knew it was providing Mr. Madan with a dangerous chemical, it had a grater duty towards persons such as the Plaintiff to make sure Mr. Madan was either trained or supervised with the same – Danao’s did neither. Clearly, Danao’s supervision of Mr. Madan was grossly negligent.

4. Count IV – Negligent Entrustment Against Danao’s

“An owner may not intentionally or negligently allow harmful substances or objects from his property to harm individuals outside the owner’s premises.” Foreseeable Zone of Risk: An Analysis of Florida’s Off-Premises Liability Standard, 55 U. Miami L. Rev. 397 2000-2001. The elements for negligent entrustment are also identified via the Restatement of Torts, Section 390. Kitchen v. K-Mart Corp., 697 So.2d 1200, 1202 (Fla.1997). Section 390, entitled “Chattel for Use by Person Known to be Incompetent,” states as follows:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Id. at 1202. (e.s.).

a. Facts Ignored by the Defendant

¶ 66 Danao’s provided Mr. Madan with permission to transport the Hazardous Material to Plaintiffs’ home on or about April 21, 2013 in a Danao’s sushi cup while knowing that Mr. Madan did not have a proper license to transport the material and in violation of Admin. Code 64E-11.004.

• Declaration of Amber Adair, attached as Exhibit B to the Second Amended Complaint, which states in part that “Mr. Madan stated that the incident was not his fault because he was told by his supervisor at Danao’s that he was allowed to bring the chemical cleaner home with him in the Danao’s cup.” (e.s.).

19. The Hazardous Material is not readily available to the general public, is not permitted to be transported by anyone without a special licensing, and was specially delivered by trained and experienced Botna-Don representatives to Danao’s.

20. The Hazardous Material is a pink liquid, has a pleasant odor and resembles the Kool-Aid type of children’s drink.

26. The Hazardous Material is not supposed to be used by households or be present in them; it is potentially lethal when used outside the commercial setting and/or in an improper manner.

¶ 32-33. [The Hazardous Material has] a HMIS rating of 3 [which] means the material is a “Serious Hazard” and “Major injury likely unless prompt action is taken and medical treatment is given.”

36-37. [The Hazardous Material has a NFPA] health rating . . . of 3 meaning “Extremely Dangerous: Avoid skin contact and inhalation.”

133. Danao’s failed to secure, via lock or other security device, the Hazardous Material from access by Mr. Madan. By these actions, Danao’s breached its duties to Plaintiffs.

¶ 134. Danao’s also permitted Mr. Madan to take the Hazardous Material home from Danao’s in a Danao’s drinking cup and permit Mr. Madan with access to the Hazardous Material even when not working. Thus, Danao’s breached its duties to Plaintiffs.

b. Analysis

Danao’s authorized Mr. Madan to take home with him the Hazardous Material in one of its to-go cups. This clearly establishes negligent entrustment.

i. Section 308 of the Restatement shows that Danao’s owed a duty to Plaintiffs.

Second Restatement of Torts, § 308 (1965) [titled Permitting Improper Persons to Use Things or Engage in Activities] demonstrates the legal duty Danao’s had to the Plaintiffs. It provides as follows:

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

Comment (c) to Section 308 makes it clear that Section 308 applies when “the actor permits a third person to use the thing for the third person’s own purposes.”

According to ¶ 66, Danao’s provided Mr. Madan with permission to transport the Hazardous Material to Plaintiffs’ home on or about April 21, 2013 in a Danao’s sushi cup while knowing that Mr. Madan did not have a proper license to transport the material and in violation of both Admin. Code 64E-11.004 and HMTA.

Applying Section 308, it is not necessary that the third person (in this case Mr. Madan) be using the chemical for the purposes of the business. Both Plaintiffs lived within Defendant’s franchise territory, less than a mile and a half from the Danao’s restaurant; thus, they would reasonably be expected to consume its to-go products from their home. Both Plaintiffs lived with Mr. Madan, and Danao’s specifically knew that Mr. Madan was going home with the Danao’s t0-go cup of the Hazardous Material.

Danao’s entrusted Mr. Madan with both the to-go cup (an illegal container for the Hazardous Material) and the Hazardous Material itself (which it knew he was transporting home, also illegally). This is clearly negligent. See also Restatement Section 317, discussed supra in connection with Count I (Negligent Hiring) on pages 18 – 21.

ii. Danao’s permitted Mr. Madan to take the Hazardous Material home without termination or discipline.

Danao’s authorized Mr. Madan to leave its premises and go to his house with a cup full of the Hazardous Material (a chemical pink in appearance, looking like a child’s drink). This not only violated the HMTA and Admin. Code 64E-11.004, but it also a foreseeable danger to all person’s at Plaintiffs’ home (i.e. the same home as Mr. Madan). Thus, the people at Mr. Madan’ home (i.e. the Plaintiffs) are quite clearly within the foreseeable zone of risk as they lived at the place where Mr. Madan was taking the Danao’s sushi cup full of unmarked, pink liquid Hazardous Material. See Comment (c) to the Restatement of Torts, Section 317, (“There may be circumstances in which the only effective control which the master can exercise over the conduct of his servant is to discharge the servant.”).

iii. Danao’s Comparison to Clorox and Pledge

Danao’s analogy to “Clorox Beach or Pledge” is clearly misleading.9 Danao’s Motion, at page 8, claims as follows:

Simply put, to find that a negligence claim can be maintained against Danao’s sushi for “entrusting” a kitchen employee with dishwashing detergent would mean that any place of business that has any chemical whatsoever, such as Clorox Bleach or Pledge, could be held liable for negligently entrusting these items to their employees.

Danao’s still fails to recognize how dangerous the Hazardous Material is. Both Clorox and Pledge have a Zero on the HMIS scale.10 The Hazardous Material has a HMIS rating of 3 out of 4. ¶ 32-33. The Hazardous Material isn’t mere “dishwashing detergent,” equal in substance to Clorox and Pledge.

Unlike Clorox or Pledge, the Hazardous Material is a commercial chemical not available for purchase by normal consumers or households. (¶ 17 and 26). The Hazardous Material is classified by independent third parties as both “Extremely Dangerous” and a “Serious Hazard”. 27 -37). The Hazardous Material has rigorous training requirements specifically set forth by HazCom. 38 – 44). The Hazardous Material cannot be transported by unlicensed person as per the Hazardous Materials Transportation Act. 64 – 66). Despite the fact that it is a “Serious Hazard” and “Extremely Dangerous”, the Hazardous Material looks like Kool-aid – thus, making it even more dangerous. (¶ 20 and 21). The Hazardous Material is not a mere dishwashing detergent that Danao’s claims, nor do Plaintiffs’ allegations in her Second Amended Complaint lead to that conclusion.

5. Count V — Negligent Training Against Botna-Don

Botna-Don, via its contract with Danao’s, stood in Danao’s shoes as to the training regarding the Hazardous Material.11 Thus, the arguments and standards referenced supra as to Count II (discussed on pages 22 – 26) are equally applicable to Botna-Don. Moreover, although Plaintiffs and Botna-Don had no contract, the rule is well settled that privity is not an element of a cause of action in tort. A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973); Navajo Circle, Inc. v. Development Concepts Corporation, 373 So.2d 689 (Fla. 2d DCA 1979). A defendant’s liability extends to persons foreseeably injured by his failure to use reasonable care in performance of a contractual promise. Navajo Circle, Inc. v. Development Concepts Corporation, 373 So.2d at 691-692; Luciani v. High, 372 So.2d 530 (Fla. 4th DCA 1979); Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3d DCA 1969); see Gelman v. Miami Elevator Company, 242 So.2d 156 (Fla. 3d DCA 1970).

a. Key facts

¶ 142. Danao’s had a duty to train its employees as per the legal obligations of HazCom, HMTA, and the Florida Administrative Code. Based upon information supplied by Danao’s, Botna-Don undertook, (both voluntarily and contractually) these training duties.

¶ 143. Based upon information supplied by Danao’s, Botna-Don agreed to do the following “Service” and “Training” relative to the Hazardous Material according to their website and pursuant to the contract attached hereto as Exhibit C . . .

¶ 144. Botna-Don retained ownership of, and leased to Danao’s, the equipment utilized in conjunction with the Hazardous Material to clean the Danao’s restaurant dishes.

145. Botna-Don retained a right of access to the equipment used with the Hazardous Material, at all times relevant. Said right of access included the “right to provide services” required under the contract attached hereto as Exhibit C, which includes the supply of the Hazardous Material.

b. Analysis

As alleged in the Plaintiff’s Second Amended Complaint, Defendant Botna-Don had the contractual duty to train Danao’s sushi employees as to the requirements of HazCom, HMTA and Florida Admin. Code 64E-11.004. If Botna-Don failed to train Danao’s managers and employees with access to the Hazardous Material as to one or more of these three laws, then foreseeable harm could come to both persons whom are reasonably expected to consume carry-out drink from the Danao’s and/or those with regular contact with Danao’s employees.

i. Botna-Don‘s Contractual Duties to Danao’s sushi

A duty of care may arise from a contractual obligation or by the undertaking of performance of a service. See Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla. 2003) (“Whenever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service—i.e., the `undertaker’—thereby assumes a duty to act carefully and to not put others at an undue risk of harm.”). Defendant, Botna-Don’s, duty was established by its contractual relations with co-defendant Danao’s sushi; a contract Botna-Don drafted and should be interpreted against it.

Pursuant to said contract and its website, as described in paragraph 132 of the Complaint and attached as Exhibit C to Plaintiff’s Amended Complaint, Botna-Don had the contactual duty to:

– Teach proper chemical handling and hazard awareness.
– Train staff on proper use of equipment.
– Enable your staff to perform their jobs in a safer, more effective and more efficient manner.

The refusal to perform these services could foreseeably injure the Plaintiffs.

ii. Botna-Don’s Duties to Plaintiffs

Because Botna-Don elected, by contract, to train Danao’s employees, it is liable just the same as Danao’s is for negligently training the Danao’s employees. Therefore, the analysis as to whether Danao’s owed a duty to Plaintiffs (as discussed supra beginning on page 22) is equally applicable to Botna-Don. This duty arises from the fact that, because the chemical is hazardous, theinability to measure the extent of this risk that merits giving the claimants an opportunity to go forward.” United States v. Stevens, 994 So.2d 1062, 1070 (Fla. 2008). Botna-Don contractually agreed to stand in the shoes of Danao’s regarding both the duty to train and the ramifications to persons such as the Plaintiffs from a failure to train.

Here, the Hazardous Material is both a “Serious Hazard” and “Extremely Dangerous”. Botna-Don’s complete failure to train Danao’s employees on the requirements of HazCom, HMTA and Florida Admin. Code 64E-11.004 could harm those persons reasonably expected to consume take out products from the Danao’s restaurant (among others) – such as the Plaintiffs. As discussed supra beginning on page 4, according to Stevens and Herndon, as the risk grows greater, so does the duty. Plaintiff’s expert, whose preliminary report is attached to the Second Amended Complaint as Exhibit A, also demonstrates how a failure to perform training could foreseeably affect persons such as the Plaintiffs. See also Exhibit A to the complaint (“it is my opinion that if an Employer effectively conveys the hazards of workplace chemical, and provides the appropriate personal protective equipment for its employees to use when handling these chemicals, that an employee will be less likely to take dangerous chemicals into a household, and risk injury to others.”)

Additionally, Botna-Don maintained possession and control of the equipment essential for the use of the Hazardous Material. Thus, it had both a legal and physical presence at the Danao’s restaurant at issue. A legal obligation may arise from both possession/control without legal ownership. W. Page Keaton Et Al., Prosser and Keaton on the Law of Torts, § 57 (1984), at pages 386, n.1. By regaining possession and control of the instrumentality key to the use of the Hazardous Material, Botna-Don took itself out of the mere supply of chemicals.

Botna-Don placed its machine used in conjunction with the Hazardous Material within a mile and a half of Plaintiffs’ home. Botna-Don did so without training the persons it left with access to the equipment and Hazardous Material, although it had a contractual duty to do so – something both illegal under HazCom and amounting to gross negligence. It is thus foreseeable that persons within the “territory” of a restaurant well known to cater to take-out-customers is harmed by such gross negligence.

1 Available online at http://pediatrics.aappublications.org/content/126/3/509.full.

2 Even if it were, a landowner owes a duty of care to persons injured off its premises as a result of conditions on the landowner’s property. See e.g. Almarante v. Art Inst. of Ft. Lauderdale, Inc., 921 So. 2d 703, 705 (Fla. 4th DCA 2006) (“A landowner’s conduct can give rise to a zone of risk extending beyond the physical boundaries of his property when harm reaching outside those boundaries is foreseeable.”); see also Whitt v. Silverman, 788 So. 2d 210, 222 (Fla. 2001) (“under our analysis in McCain, the landowners’ conduct here created a foreseeable zone of risk posing a general threat of harm toward the patrons of the business as well as those pedestrians and motorists using the abutting streets and sidewalks that would reasonably be affected by the traffic flow of the business.”); Gunlock v. Gill Hotels Co., Inc., 622 So. 2d 163, 164 (Fla. 4th DCA 1993) (“we find that appellee owed a duty to exercise reasonable care for the safety of its invitees in passing over the highway to and from appellee’s hotel facilities.”).

3 Tennessee, like Florida, follows the same rule that “a duty of reasonable care arises whenever a defendant’s conduct poses an unreasonable and foreseeable risk of harm to persons or property.” Id.

4 At this time, Plaintiffs have not pled vicarious liability. Thus, there are no issue of whether the duties involved are nondelegable or not. See Atlantic Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 679 (Fla. 3d DCA 1980) (“”Holding a particular undertaking to be nondelegable means that responsibility, i.e., ultimate liability, for the proper performance of that undertaking may not be delegated. The term nondelegable does not preclude delegation of the actual performance of the [nondelegable] task. `Nondelegable’ applies to the liabilities arising from the delegated duties if breached.”).

5 Section 90.803(18)(d) allows admission of a statement offered against a party if it is “[a] statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship.” § 90.803(18)(d), Fla. Stat. (2009). Statements under section 90.803(18)(d) are admissible “even in those instances where the employee’s statement is not based on his personal knowledge.” Scholz v. RDV Sports, Inc., 710 So.2d 618, 628 (Fla. 5th DCA 1998). In addition, “[i]t is not necessary for a party to know the name of the person who allegedly has made a damaging statement against the interests of his employer or principal in order for the statement to be admitted as an admission.” Chaney v. Winn Dixie Stores, Inc., 605 So.2d 527, 529 (Fla. 2d DCA 1992) (citation omitted). “Instead, a party may offer circumstantial evidence that the declarant is an employee or agent.” Id.

6 Either Section 317(a)(i) or Section 317(a)(ii) must be met.

7 Likewise, Section 302B of Restatement (Second) of Torts § 302(b) [titled “Risk of Intentional or Criminal Conduct”] provides that “[a] negligent act or omission may be one which involves an unreasonable risk of harm to another through . . . the foreseeable action of the other, a third person, an animal, or a force of nature.” Restatement (Second) of Torts § 302(b) (1965).

8 Its is common knowledge that cleaning products are responsible for many unintentional poisoning in children. Household Cleaning Product-Related Injuries Treated in US Emergency Departments in 1990–2006, Official Journal of the American Academy of Pediatrics (“Household cleaning products are responsible for many unintentional poisonings in children and are consistently in the top 5 categories for pediatric poisoning exposure.”) online at www.pediatrics.aappublications.org/content/126/3/509.full.

9 Defendant’s argument is not only inaccurate it also goes beyond the four corners of the complaint.

10 Available at http://www.co.vermilion.il.us/MSDS/EMA/48-Clorox%20409%20spray%20cleaner.pdf and http://www.eway.ca/MSDS/DRA94430-EN.pdf.

11 Again, there is no issue as to whether the duty is non-delegable. See Atlantic Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 679 (Fla. 3d DCA 1980) (“”Holding a particular undertaking to be nondelegable means that responsibility, i.e., ultimate liability, for the proper performance of that undertaking may not be delegated. The term nondelegable does not preclude delegation of the actual performance of the [nondelegable] task. `Nondelegable’ applies to the liabilities arising from the delegated duties if breached.”).

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Florida Legal Duty Analysis
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This is a sample analysis of whether a legal duty is owed, as prepared by our Gainesville Florida law firm. Our attorneys can assist you with injury claims.
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About the Author:

Massey & Duffy has existed since October, 2003. We focus exclusively on civil litigation, including wrongful death, overtime cases, car and trucking accidents, insurance claims, breach of contract, general employment law, and serious personal injury lawsuits.