           Case: 17-11438   Date Filed: 06/06/2018   Page: 1 of 13


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11438
                       ________________________

                   D.C. Docket No. 0:15-cv-61953-JEM

TIMOTHY S. O’DONNELL,

                                               Plaintiff-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                               Defendant-Appellee.




                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (June 6, 2018)



Before WILLIAM PRYOR, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Timothy S. O’Donnell appeals the district court’s grant of summary

judgment to the United States in his Federal Tort Claims Act (FTCA), 28 U.S.C.

§ 2671 et seq., action against the United States, based on injuries he received as a

result of a United States Postal Service (USPS) employee’s alleged negligence.

O’Donnell asserts the district court erred in concluding that USPS did not owe him

a legal duty of care, and in determining that even if USPS owed him a legal duty,

proximate cause was lacking. After review and with the benefit of oral argument,

we reverse the district court’s grant of summary judgment and remand for further

proceedings.1

                                    I. BACKGROUND

       On December 5, 2014, O’Donnell was pressure cleaning the driveway of a

house located at 4310 SW 82nd Way in Davie, Florida. O’Donnell was working

with Miracle Pressure Cleaning, Inc. (Miracle). The pressure cleaning equipment

O’Donnell was using, which included two motors, reels with hoses, and water

tanks, was on a trailer attached to a pickup truck. The pickup truck and trailer

were parked on SW 82nd Way, in front of the house where O’Donnell was

working. The back of the trailer was at the edge of one side of the house’s

driveway. The house’s mailbox was at the edge of the other side of the driveway.


       1
         We GRANT O’Donnell’s motion to supplement the record on appeal with the four
pictures of the scene on the day of the accident referenced in the depositions of O’Donnell,
Richard Curtin, and Ikramul Haq. See Ross v. Kemp, 785 F.2d 1467, 1472 (11th Cir. 1986).
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      O’Donnell testified that before he started working, he unreeled the entire

length of pressure washing hoses (which he estimated to be between 150 and 200

feet) from the trailer and stacked the hoses behind the trailer in the road. There

were at least two hoses connected together and stacked behind the trailer. There

were no cones or barricades around the hoses.

      Miracle’s owner and president, Richard Curtin, testified that hoses from two

spools on the trailer were unreeled for the job, and that each hose was 200 feet long

for a total of 400 feet of hose. Curtin also testified that ninety percent of the 400

feet of hose was behind the trailer in a pile in the road occupying about four square

feet of space behind the trailer.

      After stacking the hoses behind the trailer, O’Donnell pulled a portion of one

hose up the driveway and connected a surface cleaner to the end of that hose. The

other end of the hose was connected to the pressure cleaning pump on the trailer.

O’Donnell testified he needed approximately 40 to 48 total feet of hose to reach

from the edge of the driveway to the garage door of the house, and to have some

slack hose to allow him to move the surface cleaner from side-to-side in order to

clean the driveway. Even though he needed a total of 40 to 48 feet of hose for the

job, the two hoses he was using were not disconnected from one another because

the entire length of the hoses is needed for larger jobs.




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       O’Donnell began pressure cleaning the driveway by facing the garage door

of the house with the surface cleaner between him and the garage door. He moved

from side-to-side pressure cleaning the driveway in rows. O’Donnell positioned

the pressure cleaning hoses in the driveway in a loop and placed his right foot in

the middle of the loop so that he could move the hoses backward and out of the

way as he continued to clean the driveway. After completing a row, O’Donnell

moved backwards and slid the hoses down the driveway away from the garage

with his right foot.

       After O’Donnell began pressure cleaning the driveway, a USPS letter

carrier, Ikramul Haq, arrived at the house. Curtin testified that Haq parked with

two of his tires on the hoses. 2 Haq walked in between the stack of hoses and the

trailer to deliver a package to the front of the house. When O’Donnell saw Haq

approaching the front door to deliver the package, he turned the valve off on the

surface cleaner to prevent the water from spraying Haq. After Haq delivered the

package and was almost back to his mail truck, O’Donnell turned the valve back

on and continued to pressure clean the driveway while facing the garage door. Haq




       2
          O’Donnell testified Haq parked his mail truck behind the stack of hoses, but not on the
stack of hoses. However, for purposes of summary judgment we credit the version of the facts
most favorable to O’Donnell, which is that Haq actually parked two tires on the hoses. See Lee
v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (“Nevertheless, for summary judgment
purposes, our analysis must begin with a description of the facts in the light most favorable to the
plaintiff.”).
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testified that he saw O’Donnell “washing” the driveway in front of the garage

before he drove away from the house.

      Curtin testified that when Haq returned to the mail truck, he backed up

enough to get around the trailer then “tore off like a bat out of hell.” O’Donnell

was facing the garage door moving the hose loop with his foot when he felt the

hose loop tighten around his right ankle. When the hoses tightened around his

ankle, he fell forward onto his stomach. O’Donnell was dragged down the wet

driveway feet-first for approximately 40 feet, and ultimately came to a stop behind

the trailer. Curtin saw the hoses being pulled by the truck and saw O’Donnell

being dragged down the driveway by the hoses caught on the mail truck. Haq

stopped when Curtin and an unidentified neighbor yelled at him to do so.

      Following the incident, O’Donnell was transported to Memorial Hospital by

ambulance for treatment of a fractured right ankle. O’Donnell’s injuries ultimately

required surgery within a month of the accident, and at the time of his deposition,

O’Donnell was awaiting another surgery on his right ankle. O’Donnell now uses a

wheelchair or walker when leaving his house as a result of his injuries.

      O’Donnell sued the United States for negligence pursuant to the FTCA,

contending that Haq ran over the pressure cleaning hoses that were in the road, and

that the hoses or a portion thereof caught on something underneath the mail truck

causing O’Donnell to be dragged down the driveway. The district court entered


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summary judgment in favor of the United States, finding O’Donnell could not

establish a legal duty as a matter of law, as it was not foreseeable USPS’s conduct

would include a zone of risk that would encompass O’Donnell standing at least 40

feet away from the USPS mail truck, and it was highly unlikely that O’Donnell’s

same type of injury could be expected again. “One could not reasonably foresee

that Haq’s act of running over the hoses—which were placed in the road and not

cordoned off by any cones—would result in a loop of the hose tightening around

O’Donnell’s ankle and dragging him down the driveway.”

      The district court also determined that even assuming a duty existed and was

breached, proximate cause was lacking. Even if it was foreseeable that running

over the hoses would cause them to become caught on something underneath the

mail truck, the relevant question was whether it was foreseeable that O’Donnell

would fracture his ankle after the hose tightened around it and dragged him down

the driveway. The district court concluded it was a freak accident that could not

support proximate cause, even under the undisputed facts.

                                 II. DISCUSSION

      We review the district court’s grant of summary judgment de novo and

apply the same standards as the district court. Citizens for Smart Growth v. Sec’y

of Dep’t of Transp., 669 F.3d 1203, 1210 (11th Cir. 2012). The substantive law of

Florida determines the liability of the United States under the FTCA because the


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incident in question occurred in Broward County, Florida. See McCorkle v. United

States, 737 F.2d 957, 959 (11th Cir. 1984).

         Under Florida law, four elements are necessary to sustain a negligence

claim:

         1. A duty, or obligation, recognized by the law, requiring the
         defendant to conform to a certain standard of conduct, for the
         protection of others against unreasonable risks.

         2. A failure on the defendant’s part to conform to the standard
         required: a breach of the duty. . . .

         3. A reasonably close causal connection between the conduct and the
         resulting injury. This is what is commonly known as “legal cause,” or
         “proximate cause,” and which includes the notion of cause in fact.

         4. Actual loss or damage . . . .

Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1227 (Fla. 2010) (quotation and

alterations omitted). The only elements at issue on appeal are the first and the

third—duty and proximate cause.

         “[T]he question of foreseeability can be relevant both to the element of duty

(the existence of which is a question of law) and the element of proximate

causation (the existence of which is a question of fact).” McCain v. Fla. Power

Corp., 593 So. 2d 500, 502 (Fla. 1992). There is a temptation “to merge the two

elements into a single hybrid ‘foreseeability’ analysis, or to otherwise blur the

distinctions between them.” Id. But “foreseeability relates to duty and proximate

causation in different ways and to different ends.” Id.
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A. Duty

      Duty exists as a matter of law and is “a minimal threshold legal requirement

for opening the courthouse doors.” Id. (emphasis and footnote omitted). “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.” Id. Florida “recognizes that a legal duty will arise whenever a human

endeavor creates a generalized and foreseeable risk of harming others.” Id. at 503.

The core of the duty element is a requirement of reasonable, general foresight. Id.

      “[T]rial 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. Further, the

defendant is not required to anticipate the exact resulting injury for duty to exist.

Id. at 504. “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,

345 (Fla. 4th DCA 1998). This test 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.” Pinkerton-Hays Lumber Co. v. Pope, 127

So. 2d 441, 443 (Fla. 1961) (emphases and quotations omitted).


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         Construing the facts in the light most favorable to O’Donnell, the

circumstances are that Haq saw the hoses in the road and parked two tires on them.

Then, when leaving, Haq backed over those hoses and pulled off in an aggressive

manner, dragging the hoses under the truck. Haq saw O’Donnell pressure washing

the driveway, so whether or not he knew that O’Donnell’s foot was in the loop of

the hose, he knew there was a person “washing” the driveway at the end of the

hoses.

         Haq was on notice that the pressure washing was occurring in the driveway,

and he had a duty to use reasonable care under the circumstances presented. See

Miami Paper Co. v. Johnston, 58 So. 2d 869, 871 (Fla. 1952) (providing “one

manipulating a motor vehicle on the highway, whether backing, starting, or

proceeding ahead, must exercise reasonable care, circumstances being the guide as

to what constitutes reasonable care”). When one is driving in an aggressive

manner, an injury to a person nearby is within the foreseeable zone of risk. See

Nelson v. Ziegler, 89 So. 2d 780, 783 (Fla. 1956) (en banc) (stating “an automobile

is a dangerous instrumentality and while the driver thereof is certainly not an

insurer of the safety of those who project themselves into his pathway, he is

charged with the responsibility of having his vehicle under control at all times,

commensurate with the circumstances and the locale,” and maintaining “a sharp




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and attentive lookout in order to keep himself prepared to meet the exigencies of

an emergency within reason and consistent with reasonable care and caution”).

      USPS cites Palm Beach-Broward Medical Imaging Center, Inc., in support

of its argument that duty is lacking. 715 So. 2d at 345. There, the Fourth District

Court of Appeal reasoned “[i]n 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.” Id. (emphases added). That court then held “the foreseeable zone of risk

created by the negligent operation of a motor vehicle d[id] not include an

electricity consumer some distance from the scene of an accident.” Id. Here,

unlike in Palm Beach-Broward Medical Imaging, the foreseeable zone of risk test

supports legal duty—it is foreseeable that aggressive driving (the defendant’s

conduct) could result in personal injury (the type of injury suffered by the plaintiff)

to those nearby.

      Accordingly, we hold O’Donnell was within the foreseeable zone of risk and

that Haq had a legal duty, under the circumstances presented, to operate his mail

truck with reasonable care. See McCain, 593 So. 2d at 503 (“[T]rial and appellate

courts cannot find a lack of duty if a foreseeable zone of risk more likely than not

was created by the defendant.”).




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B. Proximate Cause

      Proximate cause is a “more specific factual requirement that must be proved

to win the case once the courthouse doors are open.” Id. at 502. “The proximate

causation element . . . is concerned with whether and to what extent the

defendant’s conduct foreseeably and substantially caused the specific injury that

actually occurred.” Id. “[A] defendant might be under a legal duty of care to a

specific plaintiff, but still not be liable for negligence because proximate causation

cannot be proven.” Id. at 502-03.

      The proximate-causation element is more narrow; “foreseeability is

concerned with the specific, narrow factual details of the case, not with the broader

zone of risk the defendant created.” Id. at 503. Harm is proximate “if prudent

human foresight would lead one to expect that similar harm is likely to be

substantially caused by the specific act or omission in question.” Id. However,

“an injury caused by a freakish and improbable chain of events would not be

‘proximate’ precisely because it is unquestionably unforeseeable, even where the

injury may have arisen from a zone of risk.” Id.

      The district court granted summary judgment to USPS on the ground that

O’Donnell’s accident was a freak one that could not support proximate cause, even

under the undisputed facts. Here, however, reasonable persons could differ as to

whether the facts establish proximate cause. See id. at 504 (explaining “where


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reasonable persons could differ as to whether the facts establish proximate

causation—i.e., whether the specific injury was genuinely foreseeable or merely an

improbable freak—then the resolution of the issue must be left to the fact-finder”).

A reasonable person could determine Haq’s aggressive driving set off the chain of

events that resulted in O’Donnell’s injury. While the precise manner in which the

injury occurred might not be expected, that Haq allegedly aggressively drove over

a large pile of hoses while O’Donnell was using those hoses to pressure wash the

driveway does not necessarily make this accident a “freak” one. See id. at 503

(stating “it is immaterial that the defendant could not foresee the precise manner in

which the injury occurred or its exact extent”). Though Haq may not have known

O’Donnell had placed his foot in the middle of the hose loop, reasonable minds

could differ regarding whether the injury was foreseeable based on Haq’s

aggressive driving and knowledge that O’Donnell was pressure washing in the

driveway. This is not a case where it appears to the court “highly extraordinary”

that Haq’s aggressive driving over the hoses could have injured the person using

those hoses. See id. at 504 (explaining a trial court has discretion to decide

proximate cause as a matter of law if, “looking back from the harm to the actor’s

negligent conduct, it appears to the court highly extraordinary that [the conduct]

should have brought about the harm” (quotations omitted)). Because “reasonable




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persons could differ as to whether the facts establish proximate causation,” we

remand this issue for further proceedings. Id.

                               III. CONCLUSION

      For the foregoing reasons, we REVERSE the district court’s grant of

summary judgment, and REMAND for further proceedings consistent with this

opinion.

      REVERSED and REMANDED.




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