DAVIS v. DOLLAR RENT A CAR SYSTEMS, 5D02-599 (Fla.App. 5 Dist. 9-1-2005)

SAWAYA, J.

ON MOTION FOR REHEARING

The Appellee, Beverly Williams, has filed a motion for rehearing directed to our opinion rendered on November 17, 2004. We feel compelled to address the allegations and arguments made in the motion because it is obvious that Williams misunderstands and misstates the rationale of our decision. The motion for rehearing asserts that no duty was owed by Williams because the decision in Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001), has a very narrow reach and is limited to private property used commercially. Williams thus argues that we should apply a strict rule of no liability for private property owners like herself whose property is not used commercially, rather than the foreseeable zone of risk standard applied in Whitt. Indeed, the central issue in this case is whether the foreseeable zone of risk standard applies. The argument is also advanced that no duty of care should be owed based on the policy consideration that it would be "ruinous" and, therefore, unreasonable to expect private landowners to keep their property clear of foliage so that it does not obstruct the view of motorists entering and exiting an adjacent intersection.

Addressing first the assertions made regarding our application of the decision in Whitt, we did not say that Whitt is indistinguishable from the instant case. We did say, however, and correctly so, that Whitt is factually analogous because it involved private property containing foliage that obstructed the view of motorists attempting to negotiate the adjacent intersection. Obviously, the fact that the property in Whitt was commercial as opposed to non-commercial is a distinguishing feature. Nevertheless, Whitt is clear in holding that the foreseeable zone of risk standard adopted by the court in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), is the appropriate standard for us to apply to determine whether a duty is owed by private landowners, like Williams, to motorists whose view of the adjacent roadway is obstructed by foliage on their property. In this regard, it is beyond doubt thatWhitt is indistinguishable from cases where the property, as in the instant case, is not used commercially. Indeed, the court in Whitt clearly stated that in negligence cases in general, the foreseeable zone of risk standard as explained in McCain must be applied to determine whether a common law duty was owed. Specifically, the court in Whitt stated that the purpose of the decision in McCain is to "restate the general principles of negligence law and clarify the role that foreseeability plays in evaluating the duty and proximate cause elements of a common law negligence claim." Whitt, 788 So. 2d at 216. The court further stated:

Importantly, subsequent decisions in accident cases resulting from visual obstructions to motorists have recognized and applied McCain's foreseeability analysis to determine whether the landowner owed a duty of care and whether that duty was breached in a particular instance. See Napoli v. Buchbinder, 685 So. 2d 46, 47 (Fla. 4th DCA 1996) (holding that plaintiff's wrongful death action alleging that design of parking lot and placement of stop sign which contributed to accident created a material question of fact as to whether defendant's alleged negligence placed plaintiff in a foreseeable zone of risk); Dykes v. City of Apalachicola, 645 So. 2d 50 (Fla. 1st DCA 1994) (holding that the test to determine whether city was liable for trees and bushes which allegedly contributed to an accident was whether defendant's conduct created a "foreseeable zone of risk"). Hence, it appears that McCain has been applied in most instances as we intended, as a restatement of the law of negligence.

Id. at 217-18 (emphasis added). Moreover, the courts of this state have consistently held that the foreseeable zone of risk standard adopted byMcCain must be applied in order to properly determine whether a common law duty was owed in negligence cases. For example, in Henderson v. Bowden, 737 So. 2d 532 (Fla. 1999), the court held:

Henderson v. Bowden, 737 So. 2d 532 (Fla. 1999); Florida Power Light Co. v. Periera, 705 So. 2d 1359, 1361 (Fla. 1998) ("The proper way of determining whether a duty existed is to decide whether the defendant's actions created a foreseeable zone of risk, not by whether the specific injury suffered was foreseeable by the defendant."); City of Pinellas Park v. Brown, 604 So. 2d 1222 (Fla. 1992); Gibbs v. Hernandez, 810 So. 2d 1034, 1037 (Fla. 4th DCA 2002) (holding that in order to determine whether a duty was owed in a negligence case, "`the proper inquiry for the reviewing appellate court is whether the defendant's conduct created a foreseeable zone of risk. . . .'") (quoting McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992)) (emphases deleted);Hitchcock v. F.S. Disposition, Inc., 704 So. 2d 1118, 1120 (Fla. 2d DCA 1998) ("The supreme court in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), clarified the standard which trial and appellate courts must apply in determining foreseeability issues under these elements. The court explained that in the duty element the focus is on `whether the defendant's conduct foreseeably created a broader `zone of risk' that poses a general threat of harm to others.'"); Creamer v. Sampson, 700 So. 2d 711, 713 (Fla. 2d DCA 1997) ("A proper analysis requires that we consider the dichotomy of foreseeability principles set out in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992). . . . Our analysis here is concerned only with the duty element of foreseeability which is the legal threshold requirement `for opening the courthouse doors.' We must determine whether the allegations of the complaint are sufficient to satisfy the duty element of negligence."); Napoli v. Buchbinder, 685 So. 2d 46 (Fla. 4th DCA 1996); White v. Whiddon, 670 So. 2d 131 (Fla. 1st DCA 1996) (holding that the proper inquiry to determine whether a duty was owed is to apply the foreseeable zone of risk standard);Powers v. Ryder Truck Rental, Inc., 625 So. 2d 979, 980 (Fla. 1st DCA 1993) ("This is a threshold legal requirement; thus, as to duty, the appellate court must determine only whether the defendant's conduct created a foreseeable zone of risk."); Stazenski v. Tennant Co., 617 So. 2d 344, 346 (Fla. 1st DCA 1993) ("In McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), the supreme court discussed the appropriate legal analysis in determining the existence of a duty. . . . The duty issue is resolved by determining whether the defendant created a generalized and foreseeable risk of harming others."); Kowkabany v. Home Depot, Inc., 606 So. 2d 716, 720 (Fla. 1st DCA 1992) ("Although McCain and the case at hand are factually dissimilar, we find the supreme court's analysis of duty to be not only instructive but controlling on the duty issue raised in the instant case."); see also Dykes v. City of Apalachicola, 645 So. 2d 50, 52 (Fla. 1st DCA 1994) ("The general test for determining whether a duty exists to support a negligence action is whether a defendant's conduct creates a foreseeable zone of risk.").

In McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), this Court explained the legal analysis that a court must engage in when determining whether the defendant in a negligence action owed a duty of care to the plaintiff:

The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader "zone of risk" that poses a general threat of harm to others. See Kaisner, 543 So. 2d at 735 (citing Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983)). . . .

. . . Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. As we have stated:

Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.

Kaisner, 543 So. 2d at 735 (citing Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983)) (emphasis added); see Webb v. Glades Elec. Coop., Inc., 521 So. 2d 258 (Fla. 2d DCA 1988). Thus, as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken. J.G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45 (1912).

Id. at 535 (emphasis added). The Florida Supreme Court has recently emphasized that "[t]he core predicate for imposing liability is one of reasonable foreseeability — the cornerstone of our tort law." Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002). In our prior opinion, we applied the appropriate standard mandated by McCain and Whitt and analyzed whether the foliage that obstructed the view of the decedent as she attempted to enter the intersection created a foreseeable zone of risk. Our conclusion was that it did and that a common law duty was therefore owed by Williams to the decedent. As we noted in our opinion, the fact that the foliage obstructed the view of motorists attempting to enter the intersection is uncontested by Williams.

Rather than engage in a proper foreseeability analysis to determine whether a zone of risk was created by the obstructing foliage as we did in our opinion, Williams simply argues that we should adopt a strict rule of no liability for a private landowner who is not using his or her property commercially. Despite assertions to the contrary by Williams, private landowners may be held liable for foliage obstructions emanating from their property in other factual contexts. For example, a private non-commercial landowner who allows a limb from a tree on his or her property to protrude over the boundary line and obscure a sign on a roadway may be held liable to a motorist who is unable to see the sign and abide by its message. See Armas v. Metropolitan Dade County, 429 So. 2d 59 (Fla. 3d DCA 1983); Morales v. Costa, 427 So. 2d 297 (Fla. 3d DCA), review denied, 434 So. 2d 886 (Fla. 1983). In Sullivan v. Silver Palm Properties, Inc., 558 So. 2d 409 (Fla. 1990), the Florida Supreme Court discussed the decisions in Armas and Morales and the foreseeability of the danger posed by a branch that overhangs the landowner's property and obstructs a traffic control sign. The court stated that "common sense required that a duty be imposed upon the landowner to remove landscaping which obstructed critical traffic signage. Vegetation that overhangs and blocks out a traffic control device constitutes an obvious condition and presents an imminent danger of uncontrolled traffic." Id. at 411 (quoting Silver Palm Props., Inc. v. Sullivan, 541 So. 2d 624, 626 (Fla. 3d DCA 1988)). Surely, if the danger posed by an overhanging branch that obstructs a sign is foreseeable, the danger posed by a stand of foliage large enough to block the view of an entire intersection is also foreseeable. To follow the rationale of Williams to its logical conclusion would result in the anomalous situation in the law that a private landowner may be held liable for a branch of a tree that blocks the view of a sign, but may escape liability for a large stand of foliage that blocks the view of an entire intersection.

Williams argues that our decision is contrary to this court's decision in Pedigo v. Smith, 395 So. 2d 615 (Fla. 5th DCA 1981), and that Pedigo, rather than Whitt and McCain, establishes the appropriate standard for us to apply in the instant case. Williams contends thatPedigo adopted a strict rule of no liability for private landowners, which relieves her of any responsibility for the tragic accident that took the life of the decedent. Williams misreads Pedigo. Our decision in Pedigo applied the agrarian rule, which provided that a private landowner could not be held liable for natural conditions in an urban setting that obstructed the view of motorists on adjacent highways or intersections. Indeed, Pedigo specifically held that "the negligence of motorists who collide at intersections intervenes and supersedes that of private property owners of natural vegetation, in the absence of some statutory or ordinance violation." Pedigo, 395 So. 2d at 617. Hence, under the agrarian rule, contrary to Williams' assertions, a private landowner of non-commercial property may be held liable for artificial conditions such as planted foliage or fencing. Since we do not know whether the foliage in the instant case was natural or artificial, summary judgment is inappropriate under the agrarian rule and Pedigo.

The court in Whitt totally rejected the rationale of Pedigo when it dismissed the argument that the focus should be on the motorist's and not the landowner's negligence. The court explained:

The landowner here asserts that if this Court recognizes any duty on his part, landowners will in essence be delegated the role of insurers for motorists using their adjoining roadways and that imposing this duty will relieve motorists of their established duty of care. However, as has been noted quite often, the imposition of a duty is nothing more than a threshold requirement that if satisfied, merely opens the "courthouse doors." Once this duty is satisfied, an injured party must still prove the remaining elements of a negligence claim, including the much more specific proximate cause requirement. Hence, the burden remains with a claimant to establish the elements of a negligence claim against a defendant-landowner before being entitled to recover damages. Moreover, the imposition of a duty of care upon landowners will not relieve motorists of a duty because in Florida, even if a landowner breaches her duty of care, a plaintiff's award will be offset by the percentage of fault attributable to him in comparison to the fault of others, including the landowner.

Whitt, 788 So. 2d at 221 (citations omitted).

The courts that adhere to the natural versus artificial distinction give the term "natural condition" a very narrow definition. In Jackson v. City of Blue Springs, 904 S.W.2d 322 (Mo.Ct.App. 1995), the court explained:

[C]ontrary to what may be the case in some other contexts, vegetation is not necessarily a "natural" condition. To the contrary, (and perhaps to ensure that the limitation of liability to "artificial" conditions was not extended to situations in which the landowner had created, maintained, or exacerbated the risk of harm), what constitutes a "natural" condition has always been very narrowly defined to include only conditions that are not in any way the result of human activity. Natural conditions thus include soil that has not been cultivated, graded or otherwise disturbed as well as trees, weeds and other vegetation growing on land that has not been made artificially receptive to it by an act of man.

Everything which does not fall within this definition of a "natural" condition, even if it constitutes vegetation, is an "artificial" condition of the land and, under the rules noted above, liability can result if that condition causes an unreasonable risk of harm to persons outside the land. This includes not just buildings and structures, but also vegetation that is planted by the landowner or was planted by the landowner's predecessor as well as vegetation that grows on land only because the land has been plowed or made receptive to it, although the vegetation has not been planted or cultivated by anyone.

Id. at 330 (citations omitted) (emphasis in original). The court also explained, using the example of a tree, why the distinction between natural and artificial conditions has been criticized and rejected by most courts. The reasons include

the virtual impossibility of obtaining evidence concerning the origin of trees in many instances; the unfairness in imposing liability upon one who plants or nurtures a tree to a stately and aesthetic appearance while excusing one who neglectfully permits the growth of unsightly scrubs; [and] the problems inherent in assessing the effect of human intervention by watering, fertilizing, pruning, etc.

Id. at 333-34 (quoting Hasapopoulous v. Murphy, 689 S.W.2d 118, 119-20 (Mo.Ct.App. 1985); see also Sprecher v. Adamson Cos., 636 P.2d 1121 (Cal. 1981); Harvey v. Hansen, 445 A.2d 1228 (Pa.Super.Ct. 1982).

However, the court in Whitt discarded the agrarian rule because it is outdated, and in doing so, it disapproved of the decision in Pedigo and cases like it. Williams seems to argue that the court in Whitt disapproved of the agrarian rule only in cases where commercial property is involved. Again, Williams misreads Whitt and ascribes far too narrow a holding to it. Clearly, the court in Whitt meant to, and did, say that the agrarian rule has been completely abrogated in all negligence cases and that in its place, courts must apply the McCain foreseeable zone of risk standard. Hence, that is the appropriate standard we must apply to private landowners whose property is not used commercially. This conclusion is not to be unexpected and was recognized by the lone dissenter in Whitt, Justice Wells, when he stated that "[a]lthough the majority view is appealing, I am concerned about the extensive exposure to liability which this decision will now cast upon all real property owners, including homeowners." Whitt, 788 So. 2d at 223 (Wells, J., dissenting).

We are unimpressed with the policy argument presented by Williams that liability would be "ruinous" to the private landowner. We note that if liability for artificial conditions such as walls, fences, and landscaping would be ruinous as Williams contends, it has been so since Pedigo, and we have yet to witness the ruination of the private landowner. Moreover, similar policy arguments were dismissed by the Florida Supreme Court in Clay Electric Cooperative, Inc. v. Johnson, 873 So. 2d 1182 (Fla. 2003). In Clay Electric, the court addressed claims by the defendant that imposing a duty of care would violate public policy because it would open the floodgates to similar lawsuits and be financially burdensome to require that defendants take measures to reduce the risk of harm to others. The court rejected this argument, stating that "[a]lthough courts, where appropriate, will address existent public policy concerns, Clay Electric's `floodgate' argument asks this Court to base its decision on pure speculation. The electric company cites no record evidence supporting its hypothesis." Id. at 1189 (emphasis in original). Likewise, we have no record evidence supporting Williams' claim based on her public policy arguments. The court in Clay Electric used the following quote from Weinberg v. Dinger, 524 A.2d 366 (N.J. 1987), to further explain:

[T]he primary purpose of tort law is "that wronged persons should be compensated for their injuries and that those responsible for the wrong should bear the cost of their tortious conduct." Moreover, forcing tortfeasors to pay for the harm they have wrought provides a proper incentive for reasonable conduct. . . . The fear of limitless liability and litigation has marked many advances in tort law. As we said in [a prior case], "[t]he answer to the allegation of unchecked liability is not the judicial obstruction of a fairly grounded claim for redress. Rather, it must be a more sedulous application of traditional concepts of duty and proximate causation to the facts of each case." Reasonable care is not a standard beyond the reach of any enterprise.

Weinberg, 524 A.2d at 375-79 (footnote and citations omitted) (quoting People Express Airlines, Inc. v. Consolidated Rail Corp., 495 A.2d 107, 111 (N.J. 1985)). The court in Clay Electric agreed with theWeinberg analysis, noting its consistency with Florida's own precedent:

The answer to the issue posed in the present cases lies not in the judicial obstruction of the plaintiffs' claims, but in the sedulous, even-handed application of established principles of tort law. Reasonable care is not a standard that is beyond Clay Electric's reach. We approve the decisions of the district court in Johnson v. Lance, Inc., 790 So. 2d 1144 (Fla. 1st DCA 2001), and Lance, Inc. v. Johnson, 790 So. 2d 1163 (Fla. 1st DCA 2001), as explained herein.

Clay Electric, 873 So. 2d at 1190-91.

Just as in Clay Electric, if there is to be a finding of no liability in the instant case, it must be based on the sedulous, even-handed application of established principles of tort law rather than judicial obstruction of Davis' claim. That application of tort law was explained by Justice Pariente in her concurring opinion in Clay Electric:

The questions that will be addressed first by the jury will be whether Clay Electric was negligent in failing to maintain the streetlights and, if so, whether its negligence was a legal cause of the accident. If the jury determines the existence of liability on the part of Clay Electric, the jury may also determine that the motorist was also at fault and attribute a percentage of responsibility to the motorist. The jury would also be charged with determining any comparative negligence on the part of the pedestrian. All that is decided by the majority opinion is that from the factual allegations in this case, a duty arose on the part of Clay Electric to exercise reasonable care. That is not a novel concept but instead an application of well-established principles of negligence.

Clay Electric, 873 So. 2d at 1195 (Pariente, J., concurring). If we are wrong in our application of the foreseeable zone of risk standard, the Florida Supreme Court will tell us. If there should be no liability in cases such as this as a matter of public policy, the Legislature will tell us.

Finally, Williams alleges that the lack of evidence of prior accidents at the intersection established as a matter of law that she owed no duty of care to the decedent under the holding of McCain. This certainly is an incorrect statement of Florida law. As the court held in Springtree Properties, Inc. v. Hammond, 692 So. 2d 164 (Fla. 1997), the absence of similar accidents does not make a particular accident unforeseeable as a matter of law and may not be the basis for holding that no duty was owed.

MOTION FOR REHEARING DENIED.

PALMER, J., concurs.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, J., dissenting.

Recently, the American Law Institute, at its meeting in Philadelphia, received and considered "Proposed Final Draft No. 1" of its Third Restatement of the Law of Torts entitled, "Liability for Physical Harm" ["the Draft"]. I have looked it over to see if somewhere within its 852 pages I would find a formulation that would help me explain more coherently why, as a matter of law, Mr. and Mrs. Williams are not liable under a theory of negligence for the injuries suffered by Twanda Green. This is what I found.

RESTATEMENT (THIRD) OF TORTS, LIABILITY FOR PHYSICAL HARM (PROPOSED FINAL DRAFT NO. 1, 2005).

Section 6 of the draft entitled, "Liability for Negligent Conduct," provides:

An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability, unless the court determines that the ordinary duty of reasonable care is inapplicable.

Id. at 79. The Comment to Section 6 explains that this issue of "duty" is a "question of law for the court to determine." Id.

Section 7(a) of the Draft is most analogous to the "foreseeable zone of risk" analysis applied in Whitt:

§ 7. Duty

(a) an actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.

(b) in exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.

Subsection (b) of Section 7 appears to me to be contrary to the "mother" of all of Florida's "foreseeable zone of risk cases," Kaisner v. Kolb, 543 So. 2d 732, 735 (Fla. 1989), quoted with approval in Whitt.

[E]ach defendant who creates a risk is required to exercise prudent foresight when others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element. For these same reasons, duty exists as a matter of law and is not a factual question for the jury to decide: duty is the standard of conduct given to the jury for gauging the defendant's factual conduct. As a corollary, the 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. [emphasis supplied.]

788 So. 2d at 217.

In the view of the new draft Restatement, this categorical view of the "foreseeable zone of risk" would have to be wrong. According to the Restatement:

[I]n some categories of cases, reasons of principle or policy dictate that liability should not be imposed. In these cases, courts use the rubric of duty to apply general categorical rules withholding liability.

Id. at 90. There are many examples given, including "relational limitations:"

Courts sometimes use the rubric of duty to decide whether an otherwise negligent actor should be liable to a class of persons in a certain relationship. For example, a property owner who creates a hazard might be liable to persons lawfully on the property, but not to a trespasser.

Id. at 94. In other words, the actor's conduct may be the same, the "foreseeable zone of risk" may be the same but the law recognizes differing duties owed to one class of persons or another, as a matter of policy. Foreseeable zone of risk is only part of the analysis.

The question the preceding discussion begs is what constitutes an "actor's conduct" that "creates" the zone of risk. In this case, of course, and in the class of landowner cases we are concerned with, the landowner has engaged in no "conduct." He has created no risk. The foliage grows and he has simply failed to cut it down. The Whitt court acknowledges that a landowner has not "created" the obstructing natural condition and that "early supporters of the rule" believe that he is therefore "free from any duty to change or maintain it in order to prevent harm." 788 So. 2d at 214. One of the mysteries of Whitt is what "conduct" on the part of the defendant has created the zone of risk. In our case, no "conduct" on the part of the Williams is alleged, only ownership.

Section 37 of the Draft is entitled, "No Duty of Care with Respect to Risks Not Created by Actor." That section provides:

An actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that one of the affirmative duties provided in §§ 38-44 is applicable.

Id. at 709. In comment F of that section entitled, "The Role of Foreseeability," the following explanation appears:

Section 7, comment J, rejects the use of unforeseeability as a ground for deciding that no duty exists. Conversely, foreseeable harm, even highly foreseeable harm, does not affect the no-duty rule in this section. Equally important, categorical foreseeability — assessing foreseeability for a class of cases — which is rejected in Section 7, comment J, as a basis for deciding that no duty exists, is equally unsound as a basis for recognizing an affirmative duty as an exception to this Section.

Id. at 715. A comparison of these two concepts is summarized in comment L of Section 7, entitled "Relationship with Affirmative Duties to Act." Id. at 99. The comment says that "[t]he general duty rule contained in this Section is conditioned on the actor's having engaged in conduct that creates a risk of physical harm." Section 37 states the obverse of this rule: In the absence of conduct creating a risk of harm to others, an actor ordinarily has no duty of care to another. To simplify: If an actor acts negligently, it is presumed that he is liable for injuries within the zone of risk, unless a policy limits liability. If the claim of negligence is the failure to act, presumptively, there is no negligence unless some policy imposes the duty. The reporters' notes to Comment L of Section 7 provides this test:

One useful characterization of whether an actor has created a risk as distinguished from whether a pure affirmative duty is at issue is to consider whether, if the actor had never existed, the harm would not have occurred.

Id. at 113, citing Leo Katz, BAD ACTS AND GUILTY MINDS, 143 (1987). Clearly, in the facts before us, if the Williams had never existed, the accident would nevertheless have occurred.

This case is not one where a zone of risk analysis works. Either the duty is created as a matter of policy or a rule of "no duty" prevails. From the standpoint of the Restatement Third's Draft, no matter whether Mr. and Mrs. Williams can be characterized as "actors," liability is controlled by a policy determination.

For all the reasons set forth in my original dissent, there should be no "duty" imposed on landowners such as the Williams to trim or eliminate foliage in order to assure clear visibility to motorists on adjacent roads. If the Whitt court felt constrained by Kaisner's "foreseeable zone of risk" analysis to impose such a duty, perhaps the re-articulation of tort law as reflected in the new draft Restatement frees us all to begin the debate anew.