Supreme Court of Florida ____________
No. SC2020-1311 ____________
BRUCE KYLE EMERSON, Petitioner,
vs.
KYLE MICHAEL LAMBERT, et al., Respondents.
November 16, 2023
COURIEL, J.
This is a case about an automobile accident involving a family
car. How much the plaintiff can recover depends on the trial
court’s application of Florida’s dangerous instrumentality doctrine.
That century-old common-law rule of tort liability, as applied to
traffic accidents, provides that “[t]he owners of automobiles in this
state are bound to observe statutory regulations of their use, and
assume liability commensurate with the dangers to which [they] or
their agents subject others in using the automobiles on the public
highway[s],” and accordingly, “[t]he principles of the common law do not permit [an automobile’s] owner . . . to authorize another to use
such instrumentality on the public highways without imposing
upon such owner liability for [the automobile’s] negligent use.” S.
Cotton Oil Co. v. Anderson, 86 So. 629, 632 (Fla. 1920) (quoting
Anderson v. S. Cotton Oil Co., 74 So. 975, 978 (Fla. 1917)).
The doctrine serves to hold financially responsible those who
originate the “dangers incident to the operation of automobiles” by
entrusting such dangerous instrumentalities to others. Id. (quoting
Anderson, 74 So. at 978); see Kraemer v. Gen. Motors Acceptance
Corp., 572 So. 2d 1363, 1365 (Fla. 1990). And in the decades since
we said the doctrine was the law of our State, the Legislature has
regulated who should be liable for injuries arising from the use of
motor vehicles, and to what extent. See ch. 99-225, § 28, Laws of
Fla. (capping liability for short-term lessors and owners who are
natural persons); ch. 86-229, § 3, Laws of Fla. (eliminating
vicarious liability for long-term automobile lessors); see also 49
U.S.C. § 30106(a)(1) (prohibiting states from imposing vicarious
liability on car rental companies). As the Legislature did its work,
we found that, under the circumstances presented in several cases
before us, persons having “an identifiable property interest in [such
-2- a] vehicle [including due to] . . . bailment,[ 1] rental, or lease of a
vehicle”—not just title owners—could be liable under the doctrine.
Aurbach v. Gallina, 753 So. 2d 60, 62-63 (Fla. 2000) (collecting
cases).
Here, the Second District Court of Appeal, having considered
the applicable statutes and our cases elaborating the dangerous
1. A bailment is “[a] delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose, usu. under an express or implied-in-fact contract.” Bailment, Black’s Law Dictionary (11th ed. 2019). A bailment can arise in many circumstances. It can be formed implicitly or expressly. Id. (compare a constructive bailment, which “arises when the law imposes an obligation on a possessor of personal property to return the property to its rightful owner,” with a contractual bailment, where the “terms are specified in a contract”). It can benefit one party or both. Id. (compare a bailment for mutual benefit, which is one “from which both the bailor and the bailee gain some tangible advantage,” with a gratuitous bailment, where “the bailee receives no compensation”). Any bailment involves the transfer of possession but not of title, giving the bailee a temporary possessory interest in the transferred property. 8 C.J.S. Bailments § 33 (2023) (“[W]hen a bailment occurs, there is no transfer of ownership, and the bailee acquires only a possessory interest in the property during the bailment, with the bailor retaining legal and equitable title.”) (footnotes omitted). But the type of bailment has traditionally dictated the standard of care a bailee had to exercise in possessing the property. See Fireman’s Fund Ins. Co. v. Dollar Sys., Inc., 699 So. 2d 1028, 1031 (Fla. 4th DCA 1997) (discussing the effect of the bailment type on determining the standard of care).
-3- instrumentality doctrine, held that the doctrine did not support the
trial court’s entry of a judgment against one spouse, whom the jury
found to be a bailee of the car involved in an accident, when the
other held sole title to the car; their son was driving with the
permission of both parents when he injured someone. Lambert v.
Emerson, 304 So. 3d 364 (Fla. 2d DCA 2020). That holding
matters, for the petitioner ultimately received a net judgment of
$18,906,429.19—that is, $18,306,429.19 more than the maximum
allowed by statute against the car’s owner. 2
The Second District certified the following question of great
public importance:
UNDER THE DANGEROUS INSTRUMENTALITY DOCTRINE, CAN ONE FAMILY MEMBER WHO IS A BAILEE OF A CAR BE HELD VICARIOUSLY LIABLE WHEN THE CAR’S ACKNOWLEDGED TITLE OWNER IS ANOTHER FAMILY MEMBER WHO IS ALSO VICARIOUSLY LIABLE UNDER THE DOCTRINE?[ 3]
Id. at 374. For the reasons we explain below, the answer is no, and
the Second District was correct to say so.
2. The current maximum liability for a person who owns a vehicle under the circumstances presented here is $600,000. See § 324.021(9)(b)3., Fla. Stat. (2023).
3. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
-4- I
In January 2015, twenty-one-year-old Kyle Lambert was
driving home from dinner with his girlfriend when he hit
motorcyclist Bruce Emerson. Lambert, 304 So. 3d at 365-66.
Emerson suffered severe injuries, leaving him quadriplegic. Keith
Lambert, Kyle’s father, owned the 2011 Hyundai Sonata Kyle was
driving. The car was mainly driven by Kyle’s mother, Debbie
Lambert, although her name did not appear on its title.
Emerson sued Keith, Kyle, and Debbie Lambert for negligence.
Against Kyle Lambert, Emerson alleged negligence in operating the
car. Against Kyle’s parents, Emerson alleged vicarious liability for
Kyle’s negligent use of the car under the dangerous instrumentality
doctrine. Emerson claimed that Keith Lambert was vicariously
liable as the car’s titleholder, while Debbie Lambert was vicariously
liable as a bailee who had allowed Kyle to drive the car.
At trial, the jury heard testimony about how the car was
shared among the various members of the Lambert family. Keith
Lambert testified that, while his wife mainly used the car as her
“daily driver,” it was a family car—family members of driving age
were free simply to take an extra key and use the car as needed.
-5- Kyle Lambert testified that, on the day of the accident, he
understood that he had both his parents’ permission to use the car.
Keith Lambert testified that he was unsure if he spoke with Kyle
about using the car on that particular day, but that Kyle had his
general permission to use the car. Kyle had asked his mother to
borrow the car that evening, and Debbie Lambert said he could.
At the close of Emerson’s case, Debbie Lambert moved for a
directed verdict. She argued that she could not be liable under the
dangerous instrumentality doctrine because it did not support
holding family members vicariously liable as bailees. 4 The trial
court denied her motion. It concluded that our decision in Aurbach
left open the possibility that a family member with an identifiable
property interest in an automobile could be vicariously liable even if
another family member legally owned the vehicle. The trial court
submitted the matter of Debbie Lambert’s liability to the jury,
instructing them to determine whether she was a bailee and if she
had authorized Kyle’s use of the car on the night of the accident.
The jury instructions provided:
4. Debbie Lambert previously moved for summary judgment on the same basis, but the trial court denied her motion.
-6- There is a preliminary issue for you to decide. That issue is: … Whether Debbie Lambert was the bailee of the vehicle driven by Kyle Lambert and whether Kyle Lambert was operating the vehicle with the express or implied consent of Debbie Lambert. A person who is a bailee of a vehicle and who expressly or impliedly consents to another’s use of it is responsible for its operation. A bailee of a vehicle is one to whom the vehicle has been furnished or delivered by its owner for a particular purpose, with the understanding that it will be returned. If the greater weight of the evidence does not support the Plaintiff’s claim on this issue that Debbie Lambert was the bailee of the vehicle being driven by Kyle Lambert and that she expressly or impliedly consented to Kyle Lambert’s use of the vehicle, then your verdict on the claim of the Plaintiff should be for Debbie Lambert. However, if the greater weight of the evidence supports the claim of Plaintiff on this issue that Debbie Lambert was the bailee of the vehicle being driven by Kyle Lambert and that she expressly or impliedly consented to Kyle Lambert’s use of the vehicle, then you shall decide the other issues on Plaintiff’s claim.
The jury found Kyle Lambert seventy-five percent at fault for
the accident and Bruce Emerson twenty-five percent at fault.
Lambert, 304 So. 3d at 366. It also found that Debbie Lambert was
a bailee who consented to Kyle’s use of the car on the night of the
accident. It awarded damages to Emerson totaling $27,437,306.25.
Considering fault apportionment and medical and social security
disability payment setoffs, the parties agreed to a net judgment of
-7- $18,906,429.19. The parties also agreed to reduce Keith Lambert’s
judgment to $600,000, the statutory maximum under section
324.021(9)(b)3., Florida Statutes (2015). Id. at 366 n.4. The trial
court entered final judgment for $18,906,429.19 against Kyle and—
key to our work in this case—Debbie Lambert. Id. at 366-67.
Following the verdict, Debbie Lambert renewed her motion for
a directed verdict, and the Lamberts moved for a new trial related
to, among other things, alleged juror misconduct. The trial court
denied both motions. The Lamberts appealed both decisions to the
Second District Court of Appeal.
The Second District affirmed the denial of the motion for a new
trial without comment but reversed the trial court’s decision on
Debbie Lambert’s vicarious liability. The court accepted “the jury’s
determination that a bailment arose between [Keith and Debbie]
Lambert” without accepting the propriety of “how this jury was
instructed on the law of bailments.” Id. at 367. Then the court
marshaled our cases to “synthesize the current state of the
dangerous instrumentality doctrine”:
[I]f title owners of a car entrust their car to a family member who, in turn, causes injury, the title owners may be held vicariously liable for that tort. If a family member
-8- has an identifiable property interest in a car (whether a bailment or some other recognized property interest) and entrusts their car to another who, in turn, causes injury, that family member can be held vicariously liable for the tort if the title owner denies vicarious liability for that entrustment. But we do not believe there is a sound basis in the law to hold both the acknowledged title owner and a family member bailee liable for the bailee’s entrustment of a car under the dangerous instrumentality doctrine.
Id. at 373 (emphasis and citations omitted).
On this basis, the Second District concluded that the trial
court erred in denying Debbie Lambert’s renewed motion for
directed verdict: “Though the jury determined that she was a bailee
of the Sonata . . . that is not a basis upon which vicarious liability
can be applied under the dangerous instrumentality doctrine since
[Keith] Lambert, the undisputed title owner, has also been found
vicariously liable for what is, essentially, the same entrustment of
the same vehicle.” Id. at 374.
So the Second District reversed the final judgment against
Debbie Lambert and remanded to the trial court with directions to
enter a judgment in accordance with its decision, leaving before us
the certified question in this case.
-9- II
Answering it requires us to say something about how a court
working with the common law—that is, the law as courts have said
it is in deciding cases 5—behaves in the presence of related
legislative action. For that is what we do in determining that the
Second District decided this case correctly. A straightforward
application of the relevant statutes and the dangerous
instrumentality doctrine in its original form tells us that liability
extends to Keith Lambert. The question becomes: Does it extend to
Debbie Lambert?
No, it does not. For as a matter of common law and statute, in
Florida, liability under the dangerous instrumentality doctrine in
automobile accident cases has stemmed from a concern that a car’s
true owner not escape responsibility for injuries that result from its
use. That concern is absent in this case. The vehicle’s owner, who
5. One great common law scholar, in a description preordained to be cited by the courts of this State, said “it stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left, and in his turn left a foundation upon which his successors might work.” Learned Hand, Book Review, 35 Harv. L. Rev. 479, 479 (1922) (reviewing Benjamin N. Cardozo, The Nature of the Judicial Process (1921)).
- 10 - by statute and common law is vicariously liable for Emerson’s
injuries, did not increase the number of people liable to Emerson
under the doctrine when he shared the car with his family
members.
A
Our decisions relevant to this case stem from the basic
common law negligence principle that, on the road as in general,
“all members of a civilised commonwealth are under a general duty
towards their neighbors to do them no hurt without lawful cause or
excuse. The precise extent of the duty, as well as the nature and
extent of the recognised exceptions, varies according to the nature
of the case.” Frederick Pollock, The Law of Torts: A Treatise on the
Principles of Obligations Arising from Civil Wrongs in the Common
Law 1 (6th ed. 1901). When we determine the extent of common
law duties, we “fix the dividing lines between those cases in which a
man is liable for harm which he has done, and those in which he is
not.” Oliver Wendell Holmes, Jr., The Common Law 79 (Dover
Publications 1991) (1881).
Before 1920, liability for automobile-related injuries in Florida
depended on an analysis of the defendant’s general common law
- 11 - duties to the injured party, the defendant’s breach of those duties,
and the plaintiff’s own negligence contributing to the injury, if any.
See Atl. Coast Line R. Co. v. Weir, 58 So. 641, 642 (Fla. 1912)
(noting that drivers had a duty to control their vehicles under “the
principles of the common law,” and failure to do so “[was]
negligence, and the consequences of negligence are governed by
applicable provisions and principles of law”); Louisville & N.R. Co. v.
English, 82 So. 819 (Fla. 1919) (applying general tort principles in
an action for automobile-related injuries); Groover v. Hammond, 75
So. 857 (Fla. 1917) (same); Atl. Coast Line Ry. v. Hobbs, 70 So. 939
(Fla. 1916) (same); Porter v. Jacksonville Elec. Co., 60 So. 188 (Fla.
1912) (same). 6
Then came Southern Cotton Oil Co. A company’s employee was
using its car on a personal errand when the employee negligently
injured the plaintiff. S. Cotton Oil Co., 86 So. at 636. The driver
6. Our cases addressing automobile-related injuries in the early twentieth century often concerned collisions with railroad cars at train crossings. See, e.g., Weir, 58 So. at 642. At the time, statutes addressed liability in such situations by (1) shifting the burden of presumption to railroad companies to show that “their agents have exercised all ordinary and reasonable care and diligence”; and (2) limiting recoverable damages based on comparative negligence. See id.; §§ 3148, 3149, Gen. St. 1906.
- 12 - was concededly at fault; the issue was the company’s liability.
“This responsibility,” we said, “must be measured by the obligation
resting on the master or owner of an instrumentality that is
peculiarly dangerous in its operation, when he intrusts it to another
to operate on the public highways.” Id. at 631. Even though the
employee was attending to a purely personal matter outside the
scope of his employment, we concluded that the company was liable
for the employee’s negligent operation of its vehicle. Id. at 635 (“An
automobile being a dangerous machine, its owner should be held
responsible for the manner in which it is used; and his liability
should extend to its use by any one with his consent.” (quoting
Ingraham v. Stockamore, 118 N.Y.S. 399, 401 (N.Y. Sup. Ct. 1909))).
We drew on two well-settled principles: An owner of a dangerous
thing is strictly liable for its negligent operation, and a principal is
vicariously liable for the negligent conduct of an agent. See id. at
636 (“In intrusting the servant with this highly dangerous agency,
the master put it in the servant’s power to mismanage it, and as
long as it was in his custody or control the master was liable for any
injury which might be committed through his negligence.”).
- 13 - We also looked to what the Legislature had done. And in part
because “the Legislature regarded automobiles as dangerous
machines,” we turned from an approach, adopted in other
jurisdictions, that focused primarily or exclusively on the conduct of
drivers. 7 Id. at 634 (quoting Ingraham, 118 N.Y.S. at 400).
We announced this principle of liability:
[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.
Id. at 638. 8
7. A century later, Florida stands alone among the states in adhering to the dangerous instrumentality doctrine as a means of holding an automobile owner responsible, under most circumstances, for the negligent use of his or her vehicle by another. See Kraemer, 572 So. 2d at 1365 n.2 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 73, at 524 (5th ed. 1984)).
8. Notably, because liability insurance for automobile drivers was not yet mandatory when we first applied the dangerous instrumentality doctrine to automobiles in Southern Cotton Oil Co., see chapter 23626, Laws of Florida (1947) (enacting Florida’s financial responsibility law, which included motor vehicle insurance coverage requirements for the first time); see also Jonathan L. Alpert & Robert A. LeVine, Florida Practice Handbook Motor Vehicle No-Fault Law, § 4-1 (1992) (“[t]he first Florida financial responsibility law was adopted in 1947”), we reasoned that “the
- 14 - Though the dangerous instrumentality doctrine was premised
on a master’s ownership of the vehicle and its entrustment to a
servant, in subsequent cases over the decades, we found that the
doctrine’s “underlying theory” applied in the bailment 9 context,
when title ownership of the vehicle was removed from its actual
control on the road, or when the beneficial owner of the vehicle
stood in the shoes of the person with bare title to it. See Aurbach,
753 So. 2d at 62-63 (collecting cases); see generally Lynch v.
Walker, 31 So. 2d 268 (Fla. 1947) (tracing the judicial development
remedy of the injured party would in most cases be illusive” without increasing liability for owners, Southern Cotton Oil Co., 86. So. at 632 (quoting Philadelphia & Reading Railroad Co. v. Derby, 55 U.S. 468, 487 (1852)).
9. At common law, bailments were not primarily a way to affix liability for injuries; they instead emerged in the context of possessory remedies—getting stuff back. Possession was procedurally essential for a person to sue for a bailed thing that had been wrongfully appropriated by a party outside the bailment. The bailee, not the bailor, alone could sue for repossession. The bailor’s only available action was against the bailee. Though a form of action later arose for a bailor to seek repossession from the appropriating party as the common law developed, bailees today remain answerable to their respective bailors. See generally Holmes, Jr., The Bailee at Common Law, in The Common Law, supra, at 164-205 (surveying the development of the traditional law of bailment); R. H. Helmholz, Bailment Theories and the Liability of Bailees: The Elusive Uniform Standard of Reasonable Care, 41 U. Kan. L. Rev. 97 (1992) (discussing the duties of a bailee).
- 15 - of the dangerous instrumentality doctrine), overruled on other
grounds by Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984).
In Herr v. Butler, the Court for the first time held liable an
owner of an automobile for injuries caused by the negligent driving
of a gratuitous bailee—that is, someone who borrowed the car for
free. 132 So. 815 (Fla. 1931). The owner had allowed his adult son
to borrow his car while visiting from out of state when the son
negligently caused an accident. Concluding that “this case comes
well within the rule” in Southern Cotton Oil Co., we explained that
an owner is liable even if he entrusts his automobile to another to
be operated solely for the latter’s benefit. Id. at 816.
We later applied Herr when we considered a commercial
bailment, holding a car rental agency liable for the negligent
operation by a driver who had rented its vehicle. Lynch, 31 So. 2d
at 271-72. We said: “When an owner authorizes and permits his
automobile to be used by another[,] he is liable in damages for
injuries to third persons caused by the negligent operation so
authorized by the owner.” Id. at 271; see Boggs v. Butler, 176 So.
174, 176 (Fla. 1937) (“Under the law of this state, if the owner once
gives his express or implied consent to another to operate his
- 16 - automobile, he is liable for the negligent operation of it no matter
where the driver goes, stops, or starts.”).
In a pair of cases arising from the same bailment for hire, we
found that the dangerous instrumentality doctrine supplied a basis
for holding both a bailor and its bailee liable. In Fleming v. Alter, we
found that a rental car business was liable for injuries caused by a
customer’s wife who had been driving a car, notwithstanding the
absence of any provision in the rental agreement for another
person’s use of the car. 69 So. 2d 185, 186 (Fla. 1953). And in
Frankel v. Fleming, 69 So. 2d 887 (Fla. 1954), we affirmed a
judgment against the man who had rented the car and allowed his
wife to drive it when she injured the plaintiff. “Proof of actual
ownership of the vehicle causing injury,” we said, “is not
indispensable to recovery, for the misfortune of the injured person
should not depend entirely on the repository of the legal title; nor is
recovery dependent upon perfection of title in a given person.” Id.
at 888 (citation omitted).
But neither did we recede from the basic connection between
ownership and liability. For in Metzel v. Robinson, we considered
the liability of an aunt who had financed and taken title to a vehicle
- 17 - for her nephew to use; the seller had objected to an eighteen-year-
old signing the financing paperwork. 102 So. 2d 385, 385 (Fla.
1958). The nephew made all car payments. The aunt insured the
vehicle in her name to comply with state law but had no further
involvement. We reasoned that “[the aunt] was still in a position to
exert some dominion and control over the vehicle.” Id. at 386. She
therefore maintained an ownership interest as a matter of law and
“could have been held liable for the accident.” Id.
In the following years, we reaffirmed the “non-delegable
nature” of ownership liability under the doctrine, starting with
Susco Car Rental System of Florida v. Leonard. 112 So. 2d 832, 836
(Fla. 1959). There, we determined that a rental agency was
financially responsible for the negligent operation of its vehicle by a
person not named in the rental contract, even though the individual
who had rented the car agreed in the contract to be the sole driver.
Id. at 834; see also Kraemer, 572 So. 2d at 1364-67 (finding a long-
term lessor and owner of an automobile liable for injuries incurred
when an unauthorized driver of a leased automobile struck another
with the car). “[W]hile the rule governing liability of an owner of a
dangerous agency who permits it to be used by another is based on
- 18 - consent,” we explained, “the essential authority or consent is simply
consent to the use or operation of such an instrumentality beyond
his own immediate control.” Leonard, 112 So. 2d at 837.
More recently, in Aurbach, we clarified that, without
ownership, the right to exercise “some degree of dominion and
control” over a vehicle does not necessarily bring about vicarious
liability under the doctrine. 753 So. 2d at 65. In Aurbach, parents
bought and maintained a car for their daughters to use; the car was
titled exclusively in the mother’s name. One of the daughters, with
her mother’s permission to use the car, negligently caused an
accident. Both the mother and daughter conceded liability: the
daughter as the operator and the mother as the titleholder.
Although the father did not hold any property interest in the car,
the jury specially found that he “had the right to control the
vehicle.” Id. at 65. But such “a general right to control the
operation or use of the vehicle,” we explained, was familial alone
and thus insufficient to give rise to vicarious liability under the
doctrine. Id. at 62.
We are left with an enduring principle of the common law that
liability under the dangerous instrumentality doctrine “will
- 19 - generally flow from legal title,” id. at 66, and while persons with
other property interests may be vicariously liable, the number of
people liable under the doctrine is not multiplied every time a
vehicle is shared. Those who “originate[] the danger by entrusting
the automobile to another,” id. at 62 (quoting Kraemer, 572 So. 2d
at 1365) (emphasis added), whether directly or by “authoriz[ing]
other[s],” remain principally liable, id. at 63.
B
Legislative activity has played a cardinal role in the dangerous
instrumentality doctrine’s development. Since its inception, the
doctrine has had as its touchstone the Legislature’s power to
regulate the use of automobiles. See S. Cotton Oil Co., 86 So. at
634. And while the courts were at work over the proceeding
decades, so too was the Legislature. Along with “vastly increas[ing]”
the scope and complexity of vehicle operational regulations, the
Legislature enacted “numerous provisions to assure financial
responsibility of owners . . . based on the assumption that an owner
cannot deliver a vehicle into the hands of another without
assuming, or continuing, his full responsibility to the public.”
Leonard, 112 So. 2d at 837 (citing ch. 324, Fla. Stat. (1955)).
- 20 - Eventually, however, the Legislature began limiting vicarious
liability under the doctrine. In 1986, it enacted section
324.021(9)(b), Florida Statutes (1986), to shield long-term motor
vehicle lessors from vicarious liability under the doctrine:
[T]he lessor, under an agreement to lease a motor vehicle for one year or longer . . . shall not be deemed the owner of said motor vehicle for the purpose of determining financial responsibility for the operation of said motor vehicle or for the acts of the operator in connection therewith.
Ch. 86-229, § 3, Laws of Fla. And in 1999, the Legislature added
monetary caps on recovery for (1) short-term motor vehicle lessors
“under an agreement to rent or lease a motor vehicle for a period of
less than 1 year” and (2) “owner[s] who [are] natural person[s] and
loan[] a motor vehicle to any permissive user,” chapter 99-225,
section 28, Laws of Florida, if they have satisfied “the requisite
minimum insurance coverage specified by the statute,” Aetna Cas.
& Sur. Co. v. Huntington Nat’l Bank, 609 So. 2d 1315, 1317 (Fla.
1992). 10
10. The statutory provisions relating to short-term lessors and owners were “added by the Legislature in 1999 as part of a tort reform package” known as the Tort Reform Act. Vargas v. Enter. Leasing Co., 60 So. 3d 1037, 1041 (Fla. 2011); see generally George N. Meros, Jr. & Chanta Hundley, Florida’s Tort Reform Act: Keeping
- 21 - Section 324.021(9)(b) limits liability against certain non-
operators, including vehicle owners, who are vicariously liable
under the dangerous instrumentality doctrine. Ch. 99-225, § 28,
Laws of Fla. It does not, however, codify the existence of vicarious
liability or the right to recover against those liable under the
doctrine. See Abdala v. World Omni Leasing, Inc., 583 So. 2d 330,
332 (Fla. 1991) (“There is no statutory right to sue a long-term
lessor of an automobile for damages an individual suffers as a
result of the operation of that automobile.”).
The statute defines a vehicle’s owner as “[a] person who holds
the legal title of a motor vehicle.” § 324.021(9)(a), Fla. Stat. (2015).
Specifically discussing the monetary cap, the statute reads:
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 in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage.
Faith with the Promise of Hoffman v. Jones, 27 Fla. St. U. L. Rev. 461, 483-85 (2000) (discussing vicarious liability of automobile owners and lessors under the Tort Reform Act). Congress would later further limit vicarious liability under the doctrine for those “engaged in the trade or business of renting or leasing motor vehicles” through the Graves Amendment. 49 U.S.C. § 30106(a)(1) (2006); see Vargas, 60 So. 3d at 1041-42.
- 22 - § 324.021(9)(b)3. If the negligent operator is uninsured or has
subpar insurance (insurance with limits below $500,000 combined
property damage and bodily injury liability), then the owner can be
liable for “up to an additional $500,000” for “economic damages
only arising out of the use of the motor vehicle.” Id. Essentially,
the statute prevents an automobile owner who was not directly at
fault for causing an injury from being treated the same as the
operator who caused the injury.
The Legislature, in enacting section 324.021(9)(b), directly
addressed compensation under the dangerous instrumentality
doctrine, laying out protections for individuals who, unlike the
negligent operator, were only indirectly responsible for causing the
harm. See Christensen v. Bowen, 140 So. 3d 498, 504-05 (Fla.
2014) (“[T]he Legislature has developed a system whereby the rights
and responsibilities of owners of motor vehicles are both assigned
and dependent upon the existence of legal title.”). All the while, our
courts have continued applying the doctrine congruently with the
Legislature’s work. See, e.g., id. at 502, 504 (explaining that the
Court’s application of the beneficial ownership exception, also
- 23 - known as the “bare legal title” exception, is “consistent with
Florida’s statutory scheme, in that vehicle ownership is determined
through legal title” (citing § 324.021(9)(a), Fla. Stat. (2013)));
Aurbach, 753 So. 2d at 65-66 (declining to apply the dangerous
instrumentality doctrine absent an identifiable property interest
and noting the lack of any supporting statutory authority).
III
The dangerous instrumentality doctrine remains “premised
upon the theory that the one who originates 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.” Kraemer, 572 So. 2d at
1365; see S. Cotton Oil Co., 86 So. at 636. Because Keith Lambert
originated the danger at issue here by giving Kyle blanket
permission to use the car, it is he, and not Debbie Lambert, who,
under the dangerous instrumentality doctrine, is in the best
position to face Emerson’s claim for damages. That is the teaching
of our cases in light of the applicable statutes.
- 24 - A
As long as there has been a dangerous instrumentality
doctrine, we have described as its “underlying rationale” the idea
that a vehicle owner who gives control of the thing to another driver
“commits himself or herself to the judgment of that driver and
accepts the potential liability for his or her torts.” Christensen, 140
So. 3d at 501; see S. Cotton Oil Co., 86 So. at 632 (“[T]he master
cannot shift the responsibility connected with the custody of such
[dangerous] instruments to the servant to whom they have been
intrusted, and escape liability therefor.” (quoting Barmore v.
Vicksburg, S. & P. Ry. Co., 38 So. 210, 214 (Miss. 1905))); Hertz
Corp. v. Jackson, 617 So. 2d 1051, 1053 (Fla. 1993) (“[A]n owner
who gives authority to another to operate the owner’s vehicle, by
either express or implied consent, has a nondelegable obligation to
ensure that the vehicle is operated properly.”); Chandler v. Geico
Indem. Co., 78 So. 3d 1293, 1297 (Fla. 2011) (noting that a vehicle
owner is liable for injuries caused by a third party’s negligent use,
even if that use exceeded the use authorized by the owner); cf.
Castillo v. Bickley, 363 So. 2d 792, 793 (Fla. 1978) (holding that an
owner is not liable under the dangerous instrumentality doctrine for
- 25 - injuries caused by a repairman because the owner “rarely has
authority and control over the operation or use of the vehicle when
it is turned over to a firm in the business of service and repair”).
Indeed, we concluded in Christensen that a co-owner who did
not have actual possession of or access to his car could still be held
vicariously liable for the damage it causes. 140 So. 3d at 506. 11 To
reach this conclusion, we reasoned that when the title holder
knowingly titled the car in his name, he gained a legal right. This
right allowed him to “encumber, sell, or take possession” of the car.
Id. at 506. That right was his, whether he used it or not. With the
legal right to control property comes the legal responsibility for
harm caused by that property. The co-owner thus retained
sufficient control over the car, as a titleholder, to remain liable
under the doctrine for any injury it caused.
11. The facts of Christensen, 140 So. 3d at 500, are as follows. A husband and wife bought an automobile as joint titleholders. They later divorced, but the husband never had his name removed from the title. At no point did the husband possess or have access to the vehicle. Around two years later, the former wife struck a pedestrian while driving the vehicle under the influence of alcohol and the pedestrian’s estate sought to hold the former husband liable under the dangerous instrumentality doctrine.
- 26 - A bailment, especially a gratuitous one of the kind at issue
here, does not come with the same rights and responsibilities that
attend title ownership. 12 See Aurbach, 753 So. 2d at 63 (“Legal title
remains the most common basis for imposing vicarious liability
under the dangerous instrumentality doctrine.”). While a
titleholder’s control and dominion over a vehicle exists whether or
12. The bailment that the jury found to exist between Keith and Debbie Lambert is not a commercial bailment; it is an implied gratuitous bailment between two private individuals—who happen, not insignificantly, to be members of a family. See Bailment, Black’s Law Dictionary (11th ed. 2019) (defining “gratuitous bailment” as “[a] bailment for which the bailee receives no compensation, as when one borrows a friend’s car”). Courts have held bailees vicariously liable under the doctrine in the context of commercial bailments. See, e.g., Frankel, 69 So. 2d at 888 (Frankel rented car from a rental company); Adams v. Bell Partners, Inc., 138 So. 3d 1054, 1058 (Fla. 4th DCA 2014) (company rented car for employee). In the Fleming cases, the car’s owner and bailor gave rights to his bailee in an arm’s-length agreement, governed by a written contract, that gave the parties a way to provide for how risk would be borne among them, and in exchange for what economic consideration—for example, by agreeing to an indemnity or adjusting the price. Frankel, 69 So. 2d at 888; Fleming, 69 So. 2d at 186; see also Leonard, 112 So. 2d at 837 (We have said, and reiterate, that “an owner cannot deliver a vehicle into the hands of another without assuming, or continuing, his full responsibility to the public.”) (footnote omitted). Keith and Debbie Lambert, husband and wife, have a different relationship. Keith gave Debbie (and their son Kyle) permission to use the car, gratuitously and without a contract setting out its terms, because they are family.
- 27 - not possession is maintained, Christensen, 140 So. 3d at 506, a
bailee’s control over a vehicle relies on possession alone, Metzel,
102 So. 2d at 386.
In our case, it is true Kyle had Debbie Lambert’s permission to
use the car. That fact is immaterial to our analysis, however, as
Keith Lambert—the titleholder—gave them both (and indeed all
family members who could drive) the same permission to use the
car. 13 Keith Lambert was found vicariously liable to the extent
allowed by statute. Under these facts, we cannot agree that the
dangerous instrumentality doctrine makes Debbie Lambert also
vicariously liable.
In concluding as much, we sail in the wake of our decision in
Aurbach, and find that to hold both Keith and Debbie Lambert
liable “would be an improper extension of the doctrine.” 753 So. 2d
at 66. It would indeed extend the doctrine past its breaking point,
yielding an arbitrary and impractical rule under which liability
would be determined not by evaluating the vehicle’s ultimate
13. As the Second District did below, we accept without endorsing the jury’s determination that a bailment arose between Keith and Debbie Lambert. Lambert, 304 So. 3d at 367.
- 28 - ownership and control—the doctrine’s traditional focus—but on
examining family relationships to identify bailments.
We would have a different case if Keith Lambert had contested
consent to Kyle’s use of the car. Consider Stanford v. Chagnon, 86
So. 3d 565 (Fla. 2d DCA 2012), where the titleholder disclaimed
liability when his stepdaughter negligently operated his truck and
caused an accident. The titleholder stated that he had not given his
stepdaughter permission to use the truck the day of the accident,
nor had he given the stepdaughter blanket permission to use the
truck at her leisure. In fact, the stepdaughter admitted that she did
not have her stepfather’s permission to drive the vehicle. The
stepdaughter had received the car keys from her mother, the
titleholder’s wife, who potentially had blanket permission to use the
car. Under these circumstances, it is conceivable that the mother’s
authorization, through bailment, did empower the negligent
operator. 14
14. In Stanford, the liability of either parent was not resolved because the issue had been appealed from a grant of summary judgment. 86 So. 3d at 566. The Second District held that the trial court erred by granting summary judgment for the father because it remained in dispute if his wife “is a bailee of the motor vehicle[,] . . . [because] then it is possible that she is liable in this context for her
- 29 - B
The Legislature has acted to limit liability under the doctrine
so that owners and lessors are not as financially responsible as the
permissive user who caused the harm. See § 324.021(9)(b);
Kraemer, 572 So. 2d at 1367 (noting that the Legislature
“recognized” the reach of vicarious liability under the doctrine and
“enact[ed] . . . section 324.021(9)(b) . . . to provide relief”). There is
no basis to contravene the financial liability regime in section
324.021(9)(b), or to permit its evasion through artful pleading when
more than one family member has the right to direct the use of an
automobile. Yet that is exactly what we would do, were we to
answer the certified question in the affirmative: we would allow an
end-run around section 324.021(9)(b) anytime family members
shared a car, even if the automobile’s titleholder were found
vicariously liable to the maximum extent provided by statute.
“[A] statute is not an alien intruder in the house of the
common law, but a guest to be welcomed and made at home there
bailment to her daughter and that her husband is liable in turn as her bailor.” Id. at 568.
- 30 - as a new and powerful aid in the accomplishment of its appointed
task of accommodating the law to social needs.” Harlan F. Stone,
The Common Law in the United States, 50 Harv. L. Rev. 4, 15 (1936).
In the face of such legislative action defining the rights and duties
of tortfeasors and victims in this area of the law, we decline to
“expand liability in a field in which the legislature ha[s] so expressly
chosen to restrict [it].” 15 Kitchen v. K-Mart Corp., 697 So. 2d 1200,
1203 (Fla. 1997); see Bankston v. Brennan, 507 So. 2d 1385, 1387
(Fla. 1987) (“[W]hen the legislature has actively entered a particular
field and has clearly indicated its ability to deal with such a policy
question, the more prudent course is for this Court to defer to the
legislative branch.”).
15. The Legislature did not repeal or curtail the dangerous instrumentality doctrine when it amended section 324.021, Florida Statutes. See Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 918 (Fla. 1990) (“The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. Unless a statute unequivocally states that it changes the common law, or is so repugnant to [it] that the two cannot coexist, the statute will not be held to have changed [it].”) (citations omitted). We hold that no expansion of the doctrine is warranted, here—not that it has been abrogated.
- 31 - IV
The answer to the certified question is no. We affirm the
decision of the Second District Court of Appeal to the extent it is
consistent with this opinion.
It is so ordered.
MUÑIZ, C.J., and CANADY, GROSSHANS, and FRANCIS, JJ., concur. LABARGA, J., dissents with an opinion. SASSO, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
LABARGA, J., dissenting.
The majority holds that under Florida’s dangerous
instrumentality doctrine, one family member who is a bailee of a car
cannot be held vicariously liable when the car’s acknowledged title
owner is another family member who is also vicariously liable under
the doctrine. Because I believe that this interpretation of bailee
vicarious liability is too narrow and will lead to inadequate awards
of damages for severe injuries, I respectfully dissent.
The essence of the dangerous instrumentality doctrine is to
attach vicarious liability to a person who, having dominion over the
instrumentality, has discretion as to its use. In Southern Cotton Oil
- 32 - Co. v. Anderson, we explained that the doctrine derives from the
“old and well[-]settled principle” that “certain things are a source of
extraordinary risk, and a man who exposes his neighbor to such a
risk is held, although his act is not of itself wrongful, to insure his
neighbor against any consequent harm not due to some cause
beyond human foresight.” 86 So. 629, 631 (Fla. 1920) (quoting
Pollock on Torts at 506). Thus, liability under the dangerous
instrumentality doctrine turns on the act of entrustment rather
than on ownership. As the majority recognizes, we have held that
various types of possessory interests give rise to dangerous
instrumentality vicarious liability.
The majority, however, unduly places vicarious liability on a
conceding titleholder when that titleholder and the bailee both
entrusted the car to the bailee-tortfeasor. Subject to few
exceptions, vicarious liability requires only (1) a possessory interest
in the car (such as ownership, bailment, rental, or lease) and (2) the
ability to exercise dominion over the car. Aurbach v. Gallina, 753
So. 2d 60, 62-64 (Fla. 2000). In Aurbach, as pointed out by the
majority, “we clarified that, without ownership, the right to exercise
‘some degree of dominion and control’ over a vehicle does not
- 33 - necessarily bring about vicarious liability under the doctrine.”
Majority op. at 19 (quoting Aurbach, 753 So. 2d at 65). However,
our holding also concluded that “[i]n the absence of common law or
statutory authority, . . . a parent who holds neither legal title nor an
identifiable property interest in a motor vehicle should not be held
vicariously liable for his or her child’s negligent operation of the
vehicle under the dangerous instrumentality doctrine.” See
Aurbach, 753 So. 2d at 66 (emphasis added). Thus, we envisioned
the potential vicarious liability of a parent who has an identifiable
property interest in a motor vehicle where the parent entrusts that
vehicle to a child, and the child negligently operates the vehicle
causing injury. The relevant inquiry is who beyond the titleholder
had a possessory interest in the car and dominion over the car such
that they could make the discretionary decision to entrust the car
to the bailee-tortfeasor.
In the present case, that person was Debbie Lambert, who,
unlike the father in Aurbach, satisfies both requirements for
vicarious liability to attach under the doctrine. See id. at 65-66.
She had a possessory interest in the car because she was a bailee,
and she had dominion over the car because it was her “daily
- 34 - driver.” Before the accident, she exercised her dominion over the
car by consciously making the discretionary decision to entrust the
car to her son. Thus, it is appropriate to hold her vicariously liable
under the dangerous instrumentality doctrine, and the certified
question should be answered in the affirmative.
Answering the certified question in the affirmative is also
consistent with the doctrine’s aim “to provide greater financial
responsibility to pay for the carnage on our roads.” Kraemer v. Gen.
Motors Acceptance Corp., 572 So. 2d 1363, 1365 (Fla. 1990).
Allowing recourse against two defendants instead of one aligns with
that goal, especially when the plaintiff suffers severe injuries like
those in the present case. Precluding vicarious liability for family
member bailees when the titleholder concedes vicarious liability will
make the remedy “illusive,” or at most inadequate, in many cases.
See S. Cotton Oil Co., 86 So. at 632.
While limiting liability within reason, section 324.021(9)(b),
Florida Statutes, can work with the common law to assign vicarious
liability to all those with a property interest in a car who are
indirectly responsible for injuries arising from the negligent
operation of the car. The supposed impracticality of examining
- 35 - family relationships does not justify a different result. For the
above reasons, I respectfully dissent.
Application for Review of the Decision of the District Court of Appeal Certified Great Public Importance/Direct Conflict of Decisions
Second District - Case Nos. 2D18-1872 & 2D18-4103
(Pasco County)
John S. Mills of The Mills Firm, P.A., Jacksonville, Florida, and Jonathan Martin of The Mills Firm, P.A., Tallahassee, Florida,
for Petitioner
Sarah Lahlou-Amine and Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa, Florida,
for Respondents
Bryan S. Gowdy, Jacksonville, Florida,
for Amicus Curiae Florida Justice Association
Elaine D. Walter of Boyd Richards Parker & Colonnelli, P.L., Miami, Florida, and Nicole R. Ramirez of HD Law Partners, Tampa, Florida,
for Amicus Curiae Florida Defense Lawyers Association
- 36 -