by Wilton H. Strickland

One of the (many) reasons I started my own business was that my colleagues often took credit for my work. I figured that if fellow attorneys were going to do this to me, it might as well be on my terms, so my limited consulting practice works best for everyone: I get to live a life of freedom and independence, and they get to look good while meeting the demands of a full practice. At this point in life, I do not expect to receive credit for my work. Getting paid while knowing that my work is vexing opposing attorneys across the country is good enough for me. “Blessed is he who expects no gratitude, for he shall not be disappointed.”

For all these reasons, I was pleasantly surprised when I sat down to read this month’s issue of the Florida Bar Journal and stumbled on an article that gives me credit for my work. The article is titled When Did We Take Negligence Out Of Negligent Security? Down The Rabbit Hole Of Florida Foreseeability Jurisprudence And The Case For Legislative Reform. It grapples with a thorny legal issue that I addressed in my own cover stories for the Florida Bar Journal in 2009 and again in 2014, namely how to determine whether a crime is foreseeable and thereby triggers the duty of a premises owner to guard against it (something that the Florida courts differ on). As I was reading the article, I noticed that it discusses the three criteria of foreseeability that I had identified, even using my names for them: (1) similarity, (2) geographical proximity, and (3) temporal proximity. I had no idea whether the authors would give me any attribution, and I honestly didn’t care because I could see that my work is continuing to influence the law’s evolution. However, I read through the endnotes and saw that they indeed had referenced and quoted me. This is something they didn’t have to do, and it’s more than my own colleagues did for me when I was still engaged in full practice. 

I wrote an email to the authors thanking them for the attribution, and I warned them that they might come under fire just as I did (an irate plaintiffs’ attorney wrote letters to the editor of the Florida Bar Journal condemning both of my articles as mischaracterizing the law). Their article showed that I was right and that my personal gadfly was wrong. The lead author sent me a response praising my work.

I must admit that I disagree with the article’s call for legislation to impose a single test of foreseeability on the entire state. As I explained in a recent post, the common law is superior to legislation for a variety of reasons (more organic, more flexible, and more democratic). With regard to premises liability in particular, different parts of the state will benefit from different tests of foreseeability. For example, in areas with high rates of crime, a strict test of foreseeability prevents landowners from becoming insurers (a goal that is openly stated in premises-liability jurisprudence). In areas with low rates of crime, a lighter test of foreseeability prevents innocent victims from being left without recourse. 

But disagreement is something that professionals can do while maintaining mutual respect. I respect these attorneys, and I am grateful that they respect me. 

If anyone is interested in reading my two prior articles for some context for this latest one, here they are:

• Premises Liability: A Notable Rift in the Law of Foreseeable Crimes.
  
  
• Premises Liability Revisited: The Law of Foreseeable Crimes Becomes Clearer and Murkier.

I look forward to reading the December issue of the Florida Bar Journal to see if there is an irate letter to the editor, perhaps even from the same attorney who mistakenly criticized me.