Two recent decisions highlight the legal perils of playing pranks, with a Florida appeals court ruling in one of the cases that a woman could sue her date for tricking her into jumping off a cliff.

Dr. Charles Reed's deceptive behavior created a foreseeable “zone of risk” for which he owed Randi Borrack a duty of reasonable care, the 4th District Court of Appeal said in a Feb. 23 decision. Borrack claims she was severely injured when she landed in the water below the cliff.

The Florida Supreme Court has recognized that “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.”

In an Ohio case, meanwhile, the pranksters were three teenage boys who placed a target deer made out of Styrofoam on a country road after dark. A driver and his passenger were injured when he lost control of his vehicle in trying to avoid the deer.

The Ohio Supreme Court said in a recent opinion that insurers for the boys' parents would not have to defend them from the lawsuits of the driver and passenger if “the boys intended or expected the harm that resulted from their intentional actions.”

Borrack's case is one of first impression. “Only a handful of Florida decisions have discussed the legal ramifications of pranks, tricks, or practical jokes,” Judge Jonathan D. Gerber wrote for the 4th District. “None of those decisions, though, have addressed the issue presented here, that is, whether a prank is capable of giving rise to a negligence action against the prankster.”

According to her suit, Borrack agreed to go water-skiing on a lake with Reed while on a trip to West Virginia. “Unbeknownst to the Plaintiff, the Defendant planned to play a trick on the Plaintiff to induce her to jump off a very high cliff into the lake,” she alleged.

As part of the deception, Reed overcame Borrack's reluctance to climb the cliff by telling her that “the view from the top is something that he used to share with his deceased brother, and now wanted to share with her.” Once they got to the top of the cliff, he tricked her into believing that he had fallen into the water and she should jump in an effort to save him.

A Martin County Circuit Court judge dismissed the case after Reed, an emergency room physician, argued that he had no legal duty to prevent Borrack from jumping into the lake.

“He does not own the cliff,” his lawyer said. “He didn’t create the zone of risk. He hasn’t put anything into it or changed its characteristics in any sense.”

But the 4th District reinstated the case, finding that

As the plaintiff alleged, the defendant induced the plaintiff to climb to the top edge of a very high cliff despite the plaintiff repeatedly advising the defendant that she was not comfortable with the climb and was afraid to descend alone. That alleged conduct created a foreseeable zone of risk in the form of a fall due to the terrain, gravity, or a combination of both.

The Ohio pranksters case mostly involved a discussion of the scope of the doctrine of “inferred intent,” which allows insurers to avoid defending an insured under certain circumstances. “[W]hile the doctrine of inferred intent may apply to actions other than murder or sexual molestation, it does not apply in this case,” the Supreme Court concluded.

But it also said that “the trier of fact on remand must weigh the facts in evidence to determine whether the boys intended or expected harm and, consequently, whether the insurance agreements provide coverage in this case.”

By Matthew Heller
3/27/11