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The Highly Unusual, Bizarre, and Extraordinary

Author: Steven Rich

Guest Editor: Amy Chambers

November 2, 2020 3:00pm

The Tragedy of Cleopatra Anglin

Cleopatra “Gayle” Anglin, her husband Tom Anglin, and his brother Fred Anglin were driving south down a country highway in Lake Hamilton, Florida on the night of September 3, 1979, when their pickup truck crossed over train tracks covered by six inches of rainwater. The resulting splash doused the electrical system of their 1965 Chevy, which immediately began to spit and sputter before finally stalling out at the bottom of a hill.

After all attempts to restart the engine failed, the Anglin brothers decided to push the Chevy up the grade using equal parts of determination and grit. Tom and Fred figured that once they reached the downhill side of the slope, gravity would take over and generate enough speed for Gayle to “pop the clutch.” Unfortunately, Gayle was unskilled at this form of mechanical defibrillation; therefore, she was forced to swap places with Tom. With Fred and Gayle now pushing from behind, Tom took his turn at manually restarting the engine.

As the Anglins struggled to revive their Chevy, a man named Edward DuBose drove past them in the opposite direction. Within seconds after passing the Anglins, Dubose slammed his brakes, spun his car around in the road, and roared straight back towards the Anglins’ truck. The aftermath left Gayle pinned between the Chevy and DuBose’s car. Despite all medical efforts, both of her legs had to be amputated.

Teddy Edwards’ Lunch in Havana

Theodora “Teddy” Edwards sat asleep in her chair while traveling on a DC-8 jet that was cruising through the air on its way from Miami to Jacksonville on a summer morning in 1971. Teddy was suddenly awakened from her slumber by the sound of exploding bullets, blood splatter, and the shocking sight of a hijacker charging the cockpit with a gun in one hand and a stick of dynamite in the other. Teddy watched in terror as the hijacker commandeered the aircraft and redirected its flight path to Cuba. Immediately after touchdown in Havana, the hijacker fled the plane, leaving the passengers and crew behind.

Aside from gunshot injuries suffered by a flight attendant and a fellow passenger, Teddy and the remaining occupants of the plane survived the hijacker’s criminal design. Strangely enough, Teddy should have been thinking more about her lunch than the chaotic events that had just unfolded.

Before allowing the airplane to return to Miami, the Cuban government forced Teddy and the other passengers to disembark and reside in special quarters for approximately 8 hours. During this time, Teddy was provided certain food and drink (a/k/a “Castro’s Cuisine”) by the authorities. Teddy initially rejected the hospitality, but was ultimately forced to consume the offerings due to hunger. As it turns out—at least according to Teddy—this forced lunch ended up causing her serious gastrointestinal ailments and the contraction of a long-term illness.

The Monstrous Acts of John William Ferry

On July 2, 1983, less than an hour away from where the Anglins’ Chevy broke down, drifter John William “Billy” Ferry entered a Palm River, Florida Shop & Go convenience store carrying only an open mouth pail. He spent twenty minutes picking out an RC Cola and a cupcake before paying and leaving. A few minutes later, Ferry walked back into the store and retrieved the pail he had inadvertently left behind. He returned to the Shop & Go yet again, this time complaining that his soda was flat. The clerk promptly switched the RC for a Pepsi, free of charge, and Ferry went on his way. Shortly before 8:00 p.m. that same day, Ferry returned to the store a final time. He pumped $4.50 of unleaded gasoline into his pail and paid the clerk. Ferry then began walking across the street towards a Winn-Dixie store.

Once inside the Winn Dixie, John William Ferry hurled his full pail of gasoline on innocent customers and employees. He then, while giggling to himself, ignited the fuel with a cigarette lighter. The blaze killed five young people (including a 16 year-old and a 4 year-old) and severely burned thirteen others.

Intervening Causes

The victims in each one of these cases filed civil lawsuits in pursuit of compensation for her or his injuries. Gayle Anglin argued the railroad company acted negligently by allowing water to pool over the train tracks. In Teddy Edwards’ case, she claimed it was well known that Cuban food caused gastrointestinal ailments to those not accustomed to its consumption, and that airline security should have discovered the hijacker’s gun and dynamite before he boarded the plane. Those forever hurt or killed by Billy Ferry sued the Shop & Go on the basis its clerk knew or should have known that Ferry was imminently violent.

In response, the defendants argued they were not responsible for plaintiffs’ injuries due to intervening causes. In the Anglin[1] case, the railroad company took the position Mr. DuBose’s act of spinning his car around in the middle of the road, racing back towards Gayle Anglin, and crashing into the back of her pickup truck was the true reason for the accident. Likewise, National Airlines argued the criminal actions of the hijacker, and the subsequent acts of the Cuban government, caused Teddy Edwards’ stomach illness. Finally, Shop & Go claimed that Billy Ferry alone was responsible for the horrors that occurred at Winn-Dixie that summer evening.

In Florida, for an act to be considered an intervening cause, the act must be: (1) efficient and independent; (2) intervening; and (3) unforeseeable.[2] The first element—despite the ambiguous terminology—means the intervening force must be independent and not set into motion by the original act of negligence.[3] For example, in Anglin, the defense argued the first element was met because the railroad’s failure to keep the tracks free from rainwater did not set Mr. Dubose’s actions (of driving his car into Gayle Anglin’s legs) into motion. The second element simply requires the passage of time between the original act and the intervening act—that is, the two cannot occur contemporaneously.[4] The Edwards case provides a good instance of where a significant amount of time passes between events: Teddy’s unwelcome meal occurred hours after the airline negligently allowed an armed hijacker to board the plane. The third, and by far most interesting, element concerns foreseeability. With respect to foreseeability, the question is whether the original defendant should be held accountable for the highly unusual, bizarre, and extraordinary acts of others. Take the Shop and Go case: even if the store clerk was negligent, could any reasonable person foresee the despicable acts of Bill Ferry?

As with most legal doctrines, the difficulty lies not with the underlying elements; it lies with the application of the elements. In Mozer[5], the court boiled down the application of these elements to the following:

“It is notorious that [the law of intervening causes] is in most cases what the courts will it to be and that it is at best a theory under which the courts … shield from liability those that the courts find should not in reason and logic be responsible for a given result.[6]

If one really thinks about it, the weight of this holding is extraordinary. In essence, the court is making a bold proclamation—stripped of any legal rhetoric—that the fate of certain litigants will be decided by nothing more than the court’s will.[7] There is no attempt to camouflage the point in a morass of legal theory. The court simply punches you in the mouth with the sobering truth: the court will determine the correct result. But was it the correct result for Gayle Anglin, Teddy Edwards, and the victims of Billy Ferry?

Department of Transportation v. Anglin, 502 So. 2d 896 (Fla. 1987)

In Anglin, the Florida Supreme Court, in a majority decision, decided that DuBose’s acts, including crashing into and taking Gayle Anglin’s legs, was “so far beyond the realm of foreseeability that, as a matter of law and policy, the [railroad company] [could] not be held liable [because] it was not reasonably foreseeable that DuBose would act in such a bizarre and reckless manner.”[8] Justice Ehrlich, who wrote the opinion, did not cite to the Mozer (court’s will) doctrine; however, he did cite to (public) policy in his holding. But whose policy? That is, when applying its will to reach the correct result, what lens does a judge use to view the critical facts?

Interestingly, Justice Ehrlich makes no reference to why DuBose did what he did. To be sure, an examination of the record and archived video of the oral argument offer very little factual information—or even interest by the court—regarding that question. The appellate briefs indicate there was a suspicion DuBose was under the influence of alcohol; however, the officer at the scene denied DuBose was intoxicated. Otherwise, there is one witness that recalled DuBose cooing out the window at Gayle as he initially drove by the Anglins’ Chevy. This anecdote, although lacking decorum, still does not explain DuBose’s subsequent actions. The court, nonetheless, was not deterred by the lack of evidence. In fact, the court went so far as to conclude, on these paltry facts, that DuBose was grossly negligent—a heightened standard of negligence that requires a degree of intent.

From one angle, the court reached the correct result by not holding a railroad company liable for an individual who behaved in a manner that simply made no sense—to either side. From another vantage point, the court’s decision to fill in cavernous evidentiary gaps and use its collective gut to decide the case on its own is just as inexplicable as what transpired on that Lake Hamilton road in 1979.

National Airlines v. Edwards, 336 So. 2d 545  (Fla. 1976)

 Although Teddy Edwards’ experience of being on a hijacked plane is terrifying by any measure, her claim of being forced to eat unfamiliar food and drink by the Cuban government, which allegedly caused permanent illness, is perhaps a bit less than compelling. With that said, this case also raises questions about whether judges should decide matters involving intervening causes.

In Edwards, the trial court—after a hearing on a three-paragraph motion devoid of any case law—dismissed Terry Edwards’ lawsuit on the basis that an airline carrier has no duty or obligation to protect passengers from contracting illness. On appeal, The Fourth District Court of Appeal reversed the trial court by holding:

[W]e understand plaintiff to have pled and assumed the burden of proving that the airline knew or should have known that by reason of its negligence and contractual breach in failing to prevent the hijack, its airplane containing plaintiff would be taken to Cuba and there detained by the Cuban authorities. Further, that the airline knew or should have known that plaintiff, while so detained, would be forced in order to sustain herself to consume dangerous and illness causing food and drink provided by the Cuban government.[9]

The decision, however, did not last for long because National Airlines appealed to the Florida Supreme Court, where the justices had a different view of the matter.

Offering only a brief analysis, the court concluded the intervening act of consuming Cuban food and beverages cut off any responsibility the airline had for the hijacking. And with that decision, Teddy’s case came to an end—although her colorful story, and heartburn, endured. Query whether the court would have reached the same decision if the hijacked plane had been directed to a warring land where soldiers had, instead of sustenance, presented machetes.

Roberts v. Shop & Go, Inc., 502 So. 2d 915 (Fla.  2d DCA 1986)

The Shop and Go case frightfully reminds us of the worst of which man is capable. The deranged acts of Billy Ferry are unspeakably tragic and wreaked havoc and enduring pain on both the victims and their families. Based upon the horrific events that unfolded, the Second District Court of Appeal concluded Shop & Go was not responsible for the victims’ damages. The court held:

[T]he events following the sale of the gasoline to Ferry are well outside the concept of “natural” and “probable” consequences; consequences of that kind “are those which a person by prudent human foresight can expect to anticipate as likely to result from an act, because they happen so frequently from the commission of such act that in the field of human experience they may be expected to happen again.”[10]

The court added:

The difficulty with the application of […] any theory of negligence in the present setting, however, derives from the total absence of a reasonable expectation that Ferry would intentionally commit the pathologically deviant act which occurred on July 2.[11]

Justice Patterson, however, offered the following dissent:

The pre-violent conduct of Ferry on the night in question, including the purchase of gasoline, in fact put Shop & Go’s [clerk] on notice of a likelihood of harm to others, and prompted her to exclaim that Ferry was “up to something.” Additionally, the plaintiffs have pleaded a breach of [statute], in the dispensing of gasoline in an open container. That event, while insufficient to sustain a cause of action in and of itself, constituted the breach of a statutory duty and can be evidence of negligence.[12]

As with Edwards[13], this case presents conflicting opinions of justices on the same set of facts. Here, however, the wills of justices on the same bench differ. The writer for the majority, Justice Frank, found that Ferry’s actions were so monstrous that they were not foreseeable to the store clerk. Justice Patterson’s dissent, on the other hand, highlights record evidence that Ferry: (1) illegally pumped gas into an open container; and (2) conducted himself in a manner that put the clerk on notice something was wrong. Other record evidence also demonstrated the Shop & Go clerk had observed Ferry painting “Billy can’t handle it” and “Fire, Fire, Fire” on a nearby wall—not to mention the fact that Ferry was, before leaving Shop & Go, wearing a cardboard box over his head.

Final Remarks

Can one truly disrupt the causal chain of human events? This is the everlasting philosophical debate of free choice versus destiny. The law of intervening causes seeks reconciliation of the two philosophies by charging judges with the unenviable task of finding the middle ground through aggregation of connectivity, time, and fairness … all in an effort to reach the correct result.

In the end, the issue is not whether the results reached by judges are correct, but whether the very attempt itself is a fool’s errand. That is, does a standard predicated on highly subjective analysis of the highly unusual, bizarre, and extraordinary make any sense, especially when learned judges at the highest level cannot agree on the measure of unusualness, bizarreness, and extraordinariness that is required to cut off liability? In today’s world, is anything truly unforeseeable, or do we simply choose to ignore more remote risk? In fact, one might question whether the actions of DuBose, the hijacker, and Billy Ferry were even remote. The law books are littered with cases where drivers crashed into the back of stalled cars. From 1968 to 1972, over 130 American planes were hijacked, including over 27 to Cuba during 1970-71 alone.[14] Indeed, there are historical references to Cuban authorities (including Fidel Castro himself) briefly holding over hijacked planes during this period and providing spicy food and drink to the passengers. And sadly, Billy Ferry is not the only deviant to set people on fire with gasoline. There have, regrettably, been a number of similar cases in the United States involving similar facts.[15]

So what is the alternative? In the cases of Gayle Anglin, Teddy Edwards, and the victims of Billy Ferry, the plaintiffs were simply asking for a jury—instead of a judge—to listen to their cases and render a fair verdict. Depending on what you think of the facts, you may or may not agree with their pleas. And, depending on your philosophy (free will versus destiny), perhaps the result would have been exactly the same either way.

 

Author’s Notes and Additional References:

  1. Favorite quote: “[A] tortfeasor need not be able to foresee—as it is necessarily impossible to foresee—the exact concatenation of events which has in fact ended in damage to another.” K-Mart Enterprises of Florida, Inc. v. Keller, 439 So. 2d 283, 286 (Fla. 3d DCA 1983) (emphasis added). Translation: Who knows why the heck it happened the way it happened?
  2. The facts of Mozer v. Semenza, 177 So.2d 880, 883 (Fla. 3d DCA 1965): In case you were wondering, Mozer (the court’s will case) involved an arsonist that set a hotel on fire. Two truckers staying at the hotel were injured when they fell trying to escape down an open staircase. At trial, evidence showed that a City of Miami fire inspector had spoken to the owner about the danger of the unenclosed stairwell. Another inspector observed the same condition five months earlier. The court ultimately held the act of the arsonist was not an independent intervening cause.
  3. Worthwhile reading: Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). In this famous case, two notoriously brilliant New York judges square off intellectually in an attempt to answer the most intriguing question: whether a railroad company is legally responsible for its station guards who helpfully nudge a train patron, but cause the patron to drop an unmarked box of fireworks on the rails, which then explodes and causes a shock strong enough for a scale to fall upon, and injure, the unsuspecting plaintiff, Ms. Palsgraf, who was standing many feet away. Although the case was ultimately decided on the element of duty and not the law of intervening causes, the railroad argued at the intermediate court level that the passenger’s negligence was intervening—even though it preceded the helpful acts of the station guards. Even more interestingly, the package of fireworks may not have been fireworks at all, but rather a bomb.
  4. For more on Teddy Edwards: Two Are Wounded in New Hijacking (July 25, 1971), New York Times, https://www.nytimes.com/1971/07/25/archives/two-are-wounded-in-new-hijacking-stewardess-and-passenger-shot-in.html.
  5. For more on Bill Ferry: Thirty Years Later, Memory of Winn-Dixie Fire, Billy Ferry, Still Vivid (July 1, 2013), Tampa Bay Times, https://www.tampabay.com/news/publicsafety/crime/thirty-years-later-memory-of-winn-dixie-fire-billy-ferry-still-vivid/2129443/.

[1] Dep’t of Transp. v. Anglin, 502 So. 2d 896, 898 (Fla. 1987).

[2] § 3:6.Intervening causes, 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 3:6 (2019-2020 ed.).

[3] Dep’t of Transp. v. Anglin, 502 So. 2d 896, 898 (Fla. 1987).

[4] Pope v. Pinkerton-Hays Lumber Co., 120 So. 2d 227, 230 (Fla. 1st DCA 1960).

[5] Mozer v. Semenza, 177 So.2d 880, 883 (Fla. 3d DCA 1965).

[6] Emphasis added.

[7] See also K-Mart Enterprises of Florida, Inc. v. Keller, 439 So. 2d 283, 285–86 (Fla. 3d DCA 1983) ([B]ecause the rules have […] become meaningful only in terms of their application to a particular factual-legal situation as it is perceived by the courts, Mozer v. Semenza, 177 So.2d 880 (Fla. 3d DCA 1965), there is no reason here to survey or expound upon the Florida law of proximate causation, foreseeability, intervening cause and the like. (emphasis added).

[8] Department of Transportation v. Anglin, 502 So. 2d 896 (Fla. 1987).

[9] National Airlines v. Edwards, 336 So. 2d 545, 546 (Fla. 1976).

[10] Roberts v. Shop & Go, Inc., 502 So. 2d 915, 917 (Fla. 2d DCA 1986) (emphasis added).

[11] Id. at 918 (emphasis added).

[12] Id. at 918  (emphasis added).

[13] National Airlines v. Edwards, 336 So. 2d 545 (Fla. 1976).

[14] “Take This Plane to Cuba”: Remembering the Hijackings of the 1960s (October 12, 2009), Finding Du cinea, http://www.findingdulcinea.com/news/Americas/2009/October/Take-This-Plane-to-Cuba.html; “Oh no, not again”: Remembering the epidemic of plane hijackings from SFO to Cuba (January 17 2020 Updated), SF Gate, https://www.sfgate.com/travel/article/sfo-hijacking-havana-cuba-san-francisco-14981405.php#item-95844-tbla-7; List of Cuba-United States Aircraft Hijackings (July 2020), Wikipedia, https://en.wikipedia.org/wiki/List_of_Cuba–United_States_aircraft_hijackings#1970s.

[15] For example, in Concord Florida, Inc. v. Lewin, 341 So. 2d 242 (Fla. 3d DCA 1976), a man walked into a crowded cafeteria, lit a 5-gallon container of gasoline on fire and ran away. Many patrons were burned, suffered smoke inhalation and/or were injured trying to escape. In Walcott v. Total Petroleum, Inc., 964 P.2d 609 (Colo. App. 1998), the plaintiff sued the operator of a filling station that sold gasoline in a paper cup to a customer, who then used the gasoline to set another person on fire. The Court of Appeal  in that case held, among other things, that: (1) the risk that a customer would intentionally throw gasoline on victim and set her on fire was not reasonably foreseeable to the operator; and (2) the filling station’s alleged violation of an ordinance by selling gasoline in a paper cup did not permit a finding of negligence per se.

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