## Facts

- Randi Borrack and Charles D. Reed, M.D., were dating.
- Reed took Borrack hiking up a high cliff above a lake during an outing with his family.
- Borrack alleged she was uncomfortable with the climb and repeatedly protested, including saying she was afraid to descend alone.
- Reed allegedly refused to go back down with her and continued toward the top.
- Reed allegedly urged her to continue by telling her he wanted to share with her the view he once shared with his deceased brother.
- Borrack alleged she continued upward because she was afraid to descend alone and felt compelled by Reed’s statements.
- At the top, Borrack alleged she was too frightened to look over the edge and turned to try to descend.
- While Borrack was not looking, Reed allegedly jumped off the cliff into the lake and disappeared from her view.
- Borrack yelled to Reed’s nephew, who was in the water below, to ask what happened to Reed.
- The nephew allegedly responded that he did not know where Reed was and that Borrack should jump to find him.
- Borrack alleged that, out of concern and love for Reed and in an effort to save him, she jumped from the cliff into the lake and suffered severe, permanent injuries.
- Borrack sued Reed for negligence, alleging Reed created a dangerous situation and owed a duty to lessen the risk or protect her from the risk; the trial court dismissed the complaint with prejudice for failure to state a cause of action, and Borrack appealed.

## Issues

1. Whether Borrack’s complaint sufficiently alleged that Reed’s conduct created a foreseeable “zone of risk” giving rise to a duty of reasonable care under Florida negligence law.
2. Whether the allegations, taken as true at the pleading stage, were enough to state a negligence claim based on Reed’s alleged prank that led Borrack to jump from a high cliff.
3. Whether dismissal with prejudice for failure to state a cause of action was proper on these pleaded facts.

## Decision

- The Fourth District Court of Appeal reversed the order dismissing the complaint with prejudice and remanded for further proceedings.
- Applying the motion-to-dismiss standard (accepting well-pleaded facts as true and drawing reasonable inferences for the plaintiff), the court concluded the allegations were legally sufficient to plead a duty based on a foreseeable zone of risk created by Reed’s conduct.

## Legal Principles

- In Florida, duty is a question of law, and a duty of reasonable care may arise when a defendant’s conduct creates a foreseeable zone of risk posing a general threat of harm to others.
- When a defendant’s conduct creates such a foreseeable zone of risk, the defendant has a duty to take reasonable steps to reduce the risk or to ensure reasonable precautions are taken to protect others from the harm the risk poses.
- On a motion to dismiss for failure to state a cause of action, courts accept the complaint’s well-pleaded factual allegations as true and draw all reasonable inferences in favor of the pleader; the question is legal sufficiency, not whether the plaintiff can ultimately prove negligence.
- Labeling alleged conduct as a “prank” does not, by itself, eliminate a negligence duty when the pleaded facts describe conduct that foreseeably exposes another person to physical harm.

## Conclusion

Because Borrack alleged that Reed brought her to a dangerous cliff, refused to accompany her back down despite her fear, then disappeared by jumping and contributed to circumstances that led her to believe he needed rescuing—prompting her to jump and suffer serious injury—the Fourth DCA held the complaint plausibly alleged a foreseeable zone of risk and a resulting duty of care, making dismissal with prejudice improper; the case was reversed and remanded.


Borrack v. Reed, 53 So.3d 1253 (2011)