[Buffymommy]

The Finish Line
This background is admittedly not your standard law talk -- certainly not a conventional statement of background for a legal opinion. It might even be thought distorted humor rather than the good side of the opinion.10 But it is meant to set the stage for a serious legal issue.

The trial judge decides what proof goes to the jury, and the jury decides the damages. No argument about that. But his damages have to be reasonably possible, no matter how certain the horse is about his loss. And the proof must allow the jury to find the loss probable, even if not certain. The judge's role is to figure out what evidence of the possible could also be probable.

According to someone, it's possible to trace every happening on earth back to something else. Like, for want of a nail the kingdom was lost. But that is not so with damages, which must be “proximate” to the wrong. The question is how close must they be? How proximate to get the loss to the jury? Between the merely possible and the possibly probable, when does evidence become too uncertain? Can the horse get there just by insisting that even damages depending on many variables are virtually certain? That's the general question.

And then there's the particular tort in this case. In an action for injurious falsehood, disparagement damages are “restricted to that which results directly and immediately from the falsehood's effect on the conduct of third persons. . . .” Bothmann v. Harrington, 458 So.2d 1163, 1170 (Fla. 3d DCA 1984); see also Restatement (Second) of Torts, § 633 (1967). Defendant's wrongful act “must be the legal cause of the claimed pecuniary losses.” 458 So.2d at 1170. The damages must be the “foreseeable and normal consequences [e.s.] of the alleged wrongful conduct, and the conduct must be a substantial factor in bringing about the losses.” Id.; see also Jacksonville v. Raulerson, 415 So.2d 1303, 1305 (Fla. 1st DCA 1982) (legal cause exists only where injuries are the reasonably foreseeable result of the wrongful act).

An essential element of injurious falsehood is that it caused the victim special damages. See Donald M. Patterson Inc. v. Bonda, 425 So.2d 206, 208 (Fla. 4th DCA 1983) (failure to produce evidence of any damage); and Continental Dev. Corp. of Fla. v. Duval Title & Abstract Co., 356 So.2d 925, 927 (Fla. 2d DCA 1978) (actionable injurious falsehood must cause actual or special damage). The victim's proof must eliminate the possibility that a loss of a future expectation can be explained by other factors. See generally Restatement (Second) of Torts, § 633(1)(a), Reporters Note (1967). Consequently, whatever may be the line for proximate damages in tort actions legally, for this cause of action the horse must plead and prove special damages that -- after eliminating all other causes for his claimed loss of an expectation -- are directly and immediately caused by the falsehood.

The horse's theory of damages goes like this. The false Miami Herald article about the Kentucky Derby win insulted the integrity of the jockey. Feeling wronged, jockey overcompensates in the Preakness. Right out of the gate he uses the whip on the horse all the way to the wire in spite of a big lead. So at Belmont -- and we got this from the horse's mouthpiece -- the horse had already spent all his reserves and had nothing left to win the Triple Crown. As a result of the disparagement, he lost the money a Belmont win would have brought.

Readers will grasp the crucial implication buried deep inside this damages scenario. If the disparagement is what caused the horse to lose the Belmont, then the horse must have been sure to win the race without it. Does the evidence bear out this implication?

No, because the horse's theory doesn't eliminate other factors. Nothing shows that the article was likely a substantial factor at Belmont. To the contrary, the Herald countered with evidence of written statements from the horse's own jockey and managing partner not long after the race. They wrote then that the loss came from a muddy track at Belmont, and the horse spent too much energy before entering the gate. So what makes a win at Belmont inevitable? Are they saying all winners of both the Derby and Preakness go on to win the Belmont?11

With his accustomed candor, the horse's able appellate counsel conceded there are far more Triple Crown losers than winners. In fact history shows it's two-to-one against. If it were otherwise, the possibility of a Triple Crown would not ignite such excitement. And needless to say, the Damon Runyon stories and the Frank Loesser lyrics would lose their most vital element. Runyon, who understood such things, was known to say that “all life is six-to-five against,” making a loss probable in most anything but also making winning just close enough to be tantalizing.12 All life -- we are led to believe -- includes horse racing. And as Sky Masterson repeated from the “Good Book”: “the race is not to the swift . . .but time and chance happen to them all.”13

The writings of both the owner and the jockey show they believed that a sloppy track was the substantial factor in the loss at Belmont, rather than the jockey's ride in the Preakness. The horse may even have exhausted too much energy at Belmont before the start of the race. He did delay in getting out of the gate. The prospect of a win is touched by so many variables it's just naturally in doubt. Without some sign of evidence disposing of other causes for his loss at Belmont, the horse is stuck with the variables.

These other, more direct, immediate and normal causes persisting, we need not labor in this case to cast for all time where damages become too speculative for trial. Here it is enough for us to say the theory behind the loss of a Belmont win may be this side of possible but it is a long way from being directly and immediately caused by the Herald's articles, or from being the foreseeable and normal consequences of disparagement.

Damages must fit snugly in the context. The context is there is no certainty in horse racing. The horse has to win the race. In competition you have to play and win. No one is certain to win today simply because he won before. A win yesterday doesn't promise another today or tomorrow. If it did, there would be many more Triple Crowns; more pennants for the Boston Red Sox; San Diego would be last year's Super Bowl champ; Florida State would be the ACC football champ; and the former Soviet Union would have the gold medal in hockey from the 1980 Olympics.

The decision has to be Affirmed.14