Third District Court of Appeal State of Florida
Opinion filed June 15, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-1194 Lower Tribunal No. 15-641-K ________________
Arthur Sager, Appellant,
vs.
Madalina Blanco and Ricardo F. Blanco, Appellees.
An appeal from the Circuit Court for Monroe County, Timothy J. Koenig, Judge.
Robert C. Tilghman, P.A., and Robert C. Tilghman, Nathan E. Eden, P.A., and Nathan E. Eden, for appellant.
Cooney Trybus Kwavnick Peets, and Warren Kwavnick, and David F. Cooney (Fort Lauderdale), for appellees.
Before SCALES, LINDSEY, and MILLER, JJ.
MILLER, J. This appeal involves the application of vicarious liability under the
dangerous instrumentality doctrine, first adopted by the Florida Supreme
Court over a century ago in Southern Cotton Oil Co. v. Anderson, 86 So. 629
(Fla. 1920). 1 The primary issue is whether an injured party is precluded from
pursuing a claim for vicarious liability against an owner when the driver has
weaponized the vehicle with the intent to cause bodily harm. Adhering to an
expansive body of cogent legal authority, we conclude that where such
misconduct is reasonably foreseeable, liability may be imputed under the
doctrine.
BACKGROUND
Appellant, Arthur Sager, responded to a domestic dispute at the
residence of his neighbor, appellee, Madalina Blanco. Having just assaulted
his girlfriend, Ricardo Blanco, Ms. Blanco’s son, fled from the scene driving
his mother’s vehicle. After initially departing, he then shifted the vehicle into
reverse and accelerated backward, striking Mr. Sager and dragging him
under the vehicle. As a result, Mr. Sager sustained significant injuries.
Mr. Blanco was arrested and charged with aggravated battery with a
deadly weapon, a charge for which he was later convicted. Mr. Sager then
1 Mr. Sager further appeals an order denying his motion for leave to amend to add a claim for punitive damages. This portion of the appeal is dismissed as untimely. See Fla. R. App. P. 9.130(b).
2 filed suit against both mother and son. The complaint alleged negligent
entrustment and vicarious liability under the dangerous instrumentality
doctrine against Ms. Blanco, along with negligence against her son.
Shortly before trial, Ms. Blanco filed a motion to strike or dismiss or,
alternatively, for judgment on the pleadings or summary judgment. In the
motion, she argued that because she had admitted to ownership of the
vehicle for purposes of vicarious liability, the negligent entrustment claim was
redundant and should not be used as a conduit for admitting evidence of Mr.
Blanco’s driving history. In opposition, Mr. Sager argued he was entitled to
advance alternative legal theories and that, given the statutory limitation on
damages associated with vicarious liability under the dangerous
instrumentality doctrine, negligent entrustment potentially exposed Ms.
Blanco to greater liability. He further sought to estop both Blancos from
denying the essential allegations of aggravated battery during the civil trial.
Ms. Blanco then offered to waive the statutory limitation on damages for
vicarious liability, but Mr. Sager rejected the offer, asserting he was entitled
to enforce the parties’ written stipulation to submit the negligent entrustment
claim to the jury.
The trial court ultimately rendered judgment in favor of Ms. Blanco on
the negligent entrustment claim and granted the motion to estop the Blancos
3 from denying the essential elements of aggravated battery. Then, acting on
its own volition, the court entered judgment on the vicarious liability claim in
favor of Ms. Blanco. In so ruling, the court cited sections 772.14 and
775.089, Florida Statutes (2020), for the proposition that because Mr. Blanco
had been criminally convicted of intentionally using the motor vehicle in a
weapon-like manner, Mr. Sager was foreclosed from arguing any lesser
degree of culpability during the civil trial. Relying upon certain language in
Burch v. Sun State Ford, Inc., 864 So. 2d 466 (Fla. 5th DCA 2004), the court
further concluded the weapon-like use of the vehicle precluded a vicarious
liability claim under the dangerous instrumentality doctrine. Mr. Sager, timely
but unsuccessfully, sought reconsideration. The instant appeal ensued.
ANALYSIS
Over one hundred years ago, the Florida Supreme Court adopted the
dangerous instrumentality doctrine in the seminal case of Southern Cotton
Oil Co. v. Anderson, 86 So. 629 (Fla. 1920). There, the court merged
common law concepts governing master-servant relationships and strict
liability for ultrahazardous activities to impose strict vicarious liability on an
automobile owner for the negligent acts of the driver. Analogizing the
entrustment of a motor vehicle to that of a locomotive, the court articulated
the dangerous instrumentality doctrine as follows:
4 [O]ne who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality on the highway by one so authorized by the owner.
S. Cotton, 86 So. at 638; see Phila. & Reading R.R. Co. v. Derby, 55 U.S.
468, 487 (1852).
Importantly, under the doctrine, strict liability is not absolute. Instead,
an injured party “must prove some fault, albeit on the part of the operator,
which is then imputed to the owner.” Burch, 864 So. 2d at 470. Liability is
ascribed “to an owner even when the operator disobeys restrictions on the
use of the vehicle.” Id. Thus, the entrusting owner is rendered liable “no
matter where the driver goes, stops, or starts.” Boggs v. Butler, 176 So. 174,
176 (Fla. 1937).
Although the dangerous instrumentality doctrine “has drawn its fair
share of criticism,” in the progeny of Southern Cotton, our high court has
reiterated the viability of the doctrine. Fischer v. Alessandrini, 907 So. 2d
569, 570 (Fla. 2d DCA 2005). Writing for the court in Kraemer v. General
Motors Acceptance Corp., 572 So. 2d 1363, 1365 (Fla. 1990), Justice
Grimes justified its continuing application in the following manner:
The dangerous instrumentality doctrine seeks to provide greater financial responsibility to pay for the carnage on our roads. It is premised upon the theory that the one who originates
5 the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation.
While the contours of the doctrine have since been refined, the
essential articulation remains unchanged. The owner of a dangerous
instrumentality who entrusts its use to another is liable for damages caused
by the negligence of the operator. As noted by Justice Grimes, this rule “has
been applied with very few exceptions.” Id. Indeed, reported Florida
Supreme Court decisions expressly identify but three. One who voluntarily
entrusts his or her vehicle to a repair service is not liable for injuries caused
by the negligence of an employee of the service, so long as the owner does
not exercise control over the injury-causing operation of the vehicle and is
not otherwise negligent. See Castillo v. Bickley, 363 So. 2d 792, 793 (Fla.
1978). Similarly, a breach of custody amounting to a species of conversion
or theft will relieve the owner of liability. See Hertz Corp. v. Jackson, 617
So. 2d 1051, 1053 (Fla. 1993). Lastly, where a vehicle owner possesses
bare naked title while another party holds beneficial ownership, vicarious
liability will not lie. See Palmer v. R.S. Evans, Jacksonville, Inc., 81 So. 2d
635, 637 (Fla. 1955).
The Florida Legislature has further diminished the reach of the doctrine
by declaring that a powered shopping cart in a retail establishment is not a
6 dangerous instrumentality, § 768.093(2), Fla. Stat. (2022), limiting liability to
a vessel operator unless the owner is present, § 327.32, Fla. Stat. (2022),
limiting the liability of a lessor of an automobile subject to registration for
operation on public roads, depending on the duration of the lease, §§
324.021(9)(b)1., 2., Fla. Stat. (2022), and, finally, limiting the liability of
owners who are natural persons and lend their car to any permissive user, §
324.021(9)(b)3., Fla. Stat. Additionally, in 2005, Congress enacted the
Graves Amendment, prohibiting states from imposing vicarious liability on
car rental companies. See 49 U.S.C. § 30106.
Against these settled principles, we review the ruling on appeal. In
determining the doctrine was unavailable under the given factual
circumstances, the trial court engaged in a two-fold analysis. The court first
determined that certain statutory provisions designed to insulate crime
victims from “further damage from the criminal conduct and maximize the
potential for recovery” estopped Mr. Sager from arguing his injuries were the
result of negligence and then concluded that the weapon-like use of the
motor vehicle shielded Ms. Blanco from vicarious liability under the
dangerous instrumentality doctrine. Bd. of Regents v. Taborsky, 648 So. 2d
748, 754 (Fla. 2d DCA 1994). We examine the respective findings, in turn.
7 Section 772.14, Florida Statutes, located within the Civil Remedies for
Criminal Practices Act, provides, in relevant part:
A final judgment or decree rendered in favor of the state in any criminal proceeding concerning the conduct of the defendant which forms the basis for a civil cause of action under this chapter . . . shall estop the defendant in any action brought pursuant to this chapter as to all matters as to which such judgment or decree would be an estoppel as if the plaintiff had been a party in the criminal action.
Section 775.089(8), Florida Statutes, which is part of the Florida Criminal
Code, similarly reads:
The conviction of a defendant for an offense involving the act giving rise to restitution under this section shall estop the defendant from denying the essential allegations of that offense in any subsequent civil proceeding. An order of restitution hereunder will not bar any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.
Both statutes clearly and unambiguously preclude a criminal defendant from
denying the essential allegations of his or her conviction in a related civil trial.
Neither provision, however, places an equivalent restriction on the injured
victim. “The plain intent of these statutes is to eliminate the common law
requirement of identity of parties for collateral estoppel to be used offensively
in a civil . . . suit.” Stafford v. Don Reid Ford, Inc., 920 So. 2d 791, 793 (Fla.
5th DCA 2006). Accordingly, we conclude the trial court erred in concluding
that the statutes operated defensively to prevent Mr. Sager from arguing his
8 injuries were the result of negligence or advancing any other factual theory
that draws support from the evidence. See Sun Chevrolet, Inc. v. Crespo,
613 So. 2d 105, 107 (Fla. 3d DCA 1993) (holding that section 775.089(8),
Florida Statutes, “applies to a criminal defendant only” and cannot be used
“to exercise collateral estoppel offensively”).
Further, to the extent the trial court read Burch as imposing a blanket
prohibition on vicarious liability claims premised upon the weaponization of
the dangerous instrumentality, the analysis was slightly incomplete. In
Burch, the driver of the vehicle dropped his girlfriend and her friend off at a
nightclub. 864 So. 2d at 468. When he returned later to retrieve them, he
observed both women entering another vehicle. Id. He then pursued the
vehicle, committing numerous traffic violations along the way. Id. at 468–69.
The lead vehicle crashed into a tree, killing one occupant and severely
injuring the other two. Id. at 469. Although the driver denied he intended to
cause harm, he was subsequently convicted of willful or wanton reckless
driving. Id.
The trial court concluded that the degree of culpability of the driver was
greater than negligence; thus, the vehicle owner could not be found
vicariously liable under the dangerous instrumentality doctrine. Id. at 468.
In determining the propriety of the trial court’s ruling, the Fifth District Court
9 of Appeal first examined Caetano v. Bridges, 502 So. 2d 51 (Fla. 1st DCA
1987) and then closely scrutinized the underpinnings of the dangerous
instrumentality doctrine. In Caetano, the driver borrowed a car and drove to
a location to search for her boyfriend. 502 So. 2d at 52. She soon observed
him in the company of two women. Id. As she drove away, she veered
toward her boyfriend. Id. Her boyfriend and one of the women sustained
injuries. Id.
The injured woman filed suit against both the driver and vehicle owner.
The trial court granted summary judgment as to liability in favor of the injured
woman. Id. The vehicle owner appealed. The appellate court reversed,
finding that the dangerous instrumentality doctrine does not apply when an
“operator is involved in intentional misconduct which is not foreseeable.” Id.
at 53. Hence, because the evidence was in dispute below as to whether the
driver intended to injure the woman, summary judgment against the owner
was improper. Id.
The Burch court noted that this legal conclusion was unelaborated, and
the phrase “intentional misconduct” is susceptible to multiple interpretations.
864 So. 2d at 469. It then observed that neither a poor manner of driving
nor disobedience historically absolved an owner of liability under the
dangerous instrumentality doctrine. Id. at 471; see Anderson v. S. Cotton
10 Oil Co., 74 So. 975, 978 (Fla. 1917) (imputing liability to owner where driver
engaged in an unauthorized frolic); Susco Car Rental Sys. of Fla. v. Leonard,
112 So. 2d 832, 836 (Fla. 1959) (finding owner liable when vehicle is
misused); Orefice v. Albert, 237 So. 2d 142, 144 (Fla. 1970) (same); Jordan
v. Kelson, 299 So. 2d 109, 111 (Fla. 4th DCA 1974) (same). In doing so, it
echoed the words of our high court in Susco Car Rental:
Where dangerous instrumentalities are utilized then, contrary to ordinary master-servant law, with practical unanimity, the courts hold the master liable for damages caused thereby, even though the servant, who has the sole custody and control thereof, is at the time acting willfully, wantonly, and in disobedience to his master’s order . . . the public safety demands that he shall be answerable for the exercise of his servant’s judgment. This underlying theory is equally applicable to the field of bailment. If the owner of such a vehicle cannot, in the performance of his primary duty to the public to see that it is used in a safe and proper manner, substitute or delegate such duty to a servant, then neither can he by contract substitute a bailee, except, of course, as between the parties to such contract.
Burch, 864 So. 2d at 470–71 (quoting Susco Car Rental, 112 So. 2d at 836–
37). 2 Drawing upon these principles, along with the basic tenet that vicarious
2 In adopting the dangerous instrumentality doctrine, the Florida Supreme Court appears to have explicitly encompassed certain quasi-intentional acts within the ambit of liability. See S. Cotton, 86 So. at 634 (“[T]he courts hold the master liable for damages caused thereby, even though the servant, who has the sole custody and control thereof, is at the time acting willfully, wantonly, and in disobedience to his master’s order.”); Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1357 (Fla. 1994) (“Moreover, the language specifically reflects the intent to include certain intentional conduct by the inclusion of the words ‘willful and wanton.’”); Prosser & Keeton on the Law
11 liability is imposed by mere reason of the consensual entrustment of the
vehicle in the hands of the driver, the Burch court declined to adopt a per se
distinction between negligent, quasi-intentional, and intentional conduct.
The court next considered whether the weapon-like use of a vehicle
should be distinguished from other acts. The court observed that, at
common law, strict liability for ultrahazardous activity did not allow for the
imposition of liability “when an implement or machine [was] used for a
purpose different than that for which it is designed, such as when a hammer
[was] used as a deadly weapon.” Id. at 472. Then, noting that “[o]peration
of a vehicle falls within the strict liability doctrine because a vehicle is
dangerous to others when used for its ‘designed purpose,’” the court
determined that “[t]he liability undertaken by the [entrusting] owner of a
of Torts, § 34 at 213 (5th ed. 1984) (“The usual meaning assigned to ‘willful,’ ‘wanton,’ or ‘reckless,’ according to taste as to the word used, is that the actor has intentionally done act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm will follow.”); Good Samaritans & Liability for Medical Malpractice, 64 Colum. L. Rev. 1301, 1309 (Nov. 1964) (“[T]he contradictory term ‘willful and wanton’ negligence, vaguely denotes quasi-intentional conduct that is qualitatively different from [mere] negligence.”); see also § 324.021(9)(b)3., Fla. Stat. (“The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator . . . .”); Farrey v. Bettendorf, 96 So. 2d 889, 895 (Fla. 1957) (“Intentionally not looking where one is going when operating a dangerous instrumentality is essentially the same as operating such dangerous instrumentality with the eyes of the operator closed.”).
12 vehicle” solely “relates to the potential for injury when it is used as a
conveyance.” Id. The court therefore concluded that when a vehicle is
intentionally weaponized, vicarious liability against the owner is ordinarily
improper. Id.
That was not, however, the end of the analysis. The court crafted a
narrow exception to this general rule, holding that “[w]hen a vehicle causes
harm because it is used like a weapon, a purpose for which it is not designed,
. . . the doctrine does not impose liability, unless its use in this manner is
reasonably foreseeable.” Id. (emphasis added).
We find some aspects of Burch persuasive and consistent with our
own precedent. As relevant to the resolution of this appeal, it is axiomatic
that weapon-like use with the intent to cause harm constitutes a marked
departure from the intended use of a motor vehicle. Under such
circumstances, the resultant harm is not inherent to the operation of the
vehicle, and imputing liability to the owner fails to withstand intellectual
muster. See Restatement (First) of Agency § 238 (1933) (“[T]he mere
entrusting of even a highly dangerous instrument to a servant does not cause
the master to be liable for injuries caused by the servant’s using it in sport or
revenge . . . .”). Conversely, where the weaponization of the vehicle is
foreseeable, the departure from the expected use is reasonably anticipated,
13 and the underpinnings of the doctrine militate in favor of application. See
Sun Chevrolet, Inc., 613 So. 2d at 107 (citing Caetano 502 So. 2d at 53)
(“[The] owner of a vehicle [is] not responsible if the operator is involved in
intentional misconduct which is not foreseeable.”). 3
In this case, the record reflects ample indicia of foreseeability.
Consequently, summary judgment was entered in error. See Stewart v.
Boho, Inc., 493 So. 2d 95, 97 (Fla. 4th DCA 1986) (“Florida law embodies a
strong preference for the resolution of foreseeability issues in negligence
cases by a jury.”); Douglas Danner & Larry L. Varn, Pattern Discovery: Motor
3 Crucially, the issue before this court in Sun Chevrolet was not whether the vehicle owner was strictly liable under the dangerous instrumentality doctrine because the driver’s culpability was greater than mere negligence. On the contrary, in that case, the owner of a vehicle involved in a fatal accident argued there was record evidence that the driver was not at fault at all, via negligence or intentional misconduct, and that the accident was instead caused by an equipment malfunction, which may relieve both driver and owner of liability to the decedent’s estate. 613 So. 2d at 107. This court held that “[s]ince a genuine issue of material fact exists as to whether the accident which caused the decedent’s death was the result of [the driver]’s negligence, the trial court’s order granting summary judgment based on the dangerous instrumentality doctrine must be reversed.” Id. We do not read Sun Chevrolet as imposing strict liability to vehicle owners under the dangerous instrumentality doctrine only in those cases where the driver’s conduct is merely negligent, nor do we believe it conflicts with Burch. See Sun State Ford, Inc. v. Burch, 889 So. 2d 778, 778 (Fla. 2004) (determining “there is no actual conflict” between Burch and Sun Chevrolet).
14 Vehicles § 41:8. (2021) (“The question of foreseeability has been held to be
a question of fact to be decided by the jury.”).
In closing, it is well-established that the law allows the promulgation of
alternative theories of recovery. See Hines v. Trager Constr. Co., 188 So.
2d 826, 830 (Fla. 1st DCA 1966); Hendry Tractor Co. v. Fernandez, 432 So.
2d 1315, 1317 (Fla. 1983). Any potential prejudice stemming from the
negligent entrustment claim may be mitigated by incorporating appropriate
procedural safeguards. See Trevino v. Mobley, 63 So. 3d 865, 867 (Fla. 5th
DCA 2011) (“We remain mindful of the prejudice problems pointed out in
[Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977)]. However, there
are a number of procedural mechanisms that can be used to ensure that a
defendant’s past driving record is excluded from the jury’s determination of
the driver’s negligence, but included in the jury’s determination of the vehicle
owner’s culpability for negligent entrustment. The type of three-phase trial
agreed to by the parties in the present case is just one example.”).
Accordingly, we reverse and remand for reinstatement of both claims.
Reversed and remanded.
SCALES, J., concurs.
15 LINDSEY, J., dissenting in part and concurring in part.
The issue in this appeal is whether Appellee Madalina Blanco can be
held vicariously liable under Florida’s unique dangerous instrumentality
doctrine for her son’s intentional, weapon-like use of her vehicle. I agree that
intentional misuse of a vehicle as a weapon precludes vicarious liability
unless the intentional misuse was reasonably foreseeable. However, I
respectfully dissent from the majority’s wholesale adoption of Burch v. Sun
State Ford, Inc., 864 So. 2d 466 (Fla. 5th DCA 2004) because Burch
expressly and directly conflicts with this Court’s decision in Sun Chevrolet,
Inc. v. Crespo, 613 So. 2d 105 (Fla. 3d DCA 1993).
In Crespo, this Court held that “the owner of an automobile who allows
his vehicle to be driven on the open road is liable only if the driver is
negligent.” 613 So. 2d at 107 (emphasis added). In support of this holding,
this Court relied on Caetano v. Bridges, 502 So. 2d 51, 53 (Fla. 1st DCA
1987), which similarly held that the owner of an automobile “is liable only if
the operator is negligent under the circumstances and is not accountable if
the operator is involved in intentional misconduct which is not foreseeable.”
In short, this Court’s holding in Crespo broadly cuts off vicarious liability
under Florida’s dangerous instrumentality doctrine when the driver engages
in intentional misconduct that is not foreseeable. By contrast, our sister
16 district in Burch disagreed with this broad exception. As extensively detailed
in the majority, the Fifth District in Burch held “that the [dangerous
instrumentality] doctrine applies even when an operator is involved in
intentional misconduct, unless the operator makes weapon-like use of the
vehicle with the intent to cause physical harm. However, if the weapon-like
use of the vehicle is reasonably foreseeable to the owner, liability will be
imputed nevertheless.” 864 So. 2d at 473.
The exception in Burch—which only applies when a driver makes
“weapon-like” use of a vehicle—is far narrower than the exception set forth
in this Court’s Crespo decision, which applies when a driver engages in any
form of intentional misconduct. Indeed, the Fifth District recognized this and
expressly “declare[d] conflict with [Crespo], to the extent that its holding is to
the contrary.” Burch, 864 So. 2d at 471.
Because it is unnecessary to abandon the broad exception in Crespo
in favor of the narrow exception in Burch to resolve the issue in this case,
judicial restraint is warranted. Moreover, because Florida’s dangerous
instrumentality doctrine is a creature of judicial decision, 4 I am reluctant to
adopt the majority’s analysis, which essentially enlarges this judicially
4 See Burch, 864 So. 2d at 470 (“The only state to have adopted the doctrine by judicial decision, Florida’s doctrine is unique and has few exceptions.”).
17 created doctrine’s applicability in this District. Finally, even if it were
necessary to abandon Crespo in favor of Burch to decide this case, this could
only be done en banc because Burch directly and expressly conflicts with
Crespo. See Fla. R. App. P. 9.331 (“A majority of the participating judges of
a district court of appeal may order that a proceeding pending before the
court be determined en banc. . . . En banc hearings . . . shall not be ordered
unless the case or issue is of exceptional importance or unless necessary to
maintain uniformity in the court’s decisions.” (emphasis added)).
Accordingly, though I agree this case should be reversed and
remanded for a factual determination on foreseeability, I see no reason this
case cannot be decided under Crespo. This is because Crespo is the
controlling case law in this District. I otherwise decline to join the majority’s
opinion, including but not limited to, its adoption of Burch.