Michalek v. Shumate

511 So. 2d 377, 12 Fla. L. Weekly 1810, 1987 Fla. App. LEXIS 9479
CourtDistrict Court of Appeal of Florida
DecidedJuly 22, 1987
DocketNo. 86-2085
StatusPublished
Cited by2 cases

This text of 511 So. 2d 377 (Michalek v. Shumate) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michalek v. Shumate, 511 So. 2d 377, 12 Fla. L. Weekly 1810, 1987 Fla. App. LEXIS 9479 (Fla. Ct. App. 1987).

Opinion

CAMPBELL, Judge.

Appellant, Gerald G. Michalek, plaintiff below, appeals the final summary judgment for appellees, David E. and June Shu-mate, defendants below. The trial court held that the doctrine of dangerous instrumentality did not apply and therefore ap-pellees were not liable to appellant for injuries he received when his vehicle was struck by a car owned by appellees. We affirm.

The pertinent, undisputed facts show that at the time of the collision, appellees’ car was being operated by an employee of Ralph’s Car Cleaning. Appellee June Shu-mate had called Ralph’s Car Cleaning for an appointment to have her car cleaned. Ralph’s Car Cleaning had sent an employee to Mrs. Shumate’s place of employment to pick up her car. As the employee was leaving Mrs. Shumate’s place of employment in her car, he collided with a vehicle occupied by appellant.

Appellant’s complaint alleges only that at the time of the accident, appellees’ car was being operated by a Ralph’s Car Cleaning employee with appellee’s consent and that the employee’s negligent operation of the car caused the collision with appellant’s vehicle. The complaint does not allege that appellees were negligent except for their entrustment of the vehicle to Ralph’s Car Cleaning employee.

The supreme court originally applied the dangerous instrumentality doctrine to automobiles in Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (Fla.1917) and Anderson v. Southern Cotton Oil Co., 80 Fla. 441, 86 So. 629 (Fla.1920). Here, [378]*378the trial judge held that the doctrine did not apply because of the exception enunciated in Castillo v. Bickley, 368 So.2d 792 (Fla.1978). We agree with the trial judge. Because this decision conflicts with Jack Lee Buick, Inc. v. Bolton, 377 So.2d 226 (Fla. 1st DCA 1979), we write to explain what we conclude should be the correct application and construction of the exception announced in Castillo.

First, we must analyze the development of the dangerous instrumentality doctrine and its exceptions since Southern Cotton Oil. In Weber v. Porco, 100 So.2d 146 (Fla.1958), the supreme court emphasized that since Southern Cotton Oil, it had consistently applied the rule of respondeat superior to find the owner liable where he had entrusted his automobile to another and the other drove it with the owner’s permission or consent. In Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959), the supreme court announced a much broader principle of owner liability under the dangerous instrumentality doctrine. The court stated:

[W]hen control of such a vehicle is voluntarily relinquished to another, only a breach of custody amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse. The validity or effect of restrictions on such use, as between the parties, is a matter totally unrelated to the liabilities imposed by law upon one who owns and places in circulation an instrumentality of this nature.

112 So.2d at 835-836.

This court in Fry v. Robinson Printers, Inc., 155 So.2d 645 (Fla. 2d DCA 1963) refused to apply the doctrine to an accident that occurred when the automobile owner had left its vehicle at a service station for minor repairs, and a service station employee who was driving the vehicle onto a service rack injured a fellow employee. In Fry, this court, albeit without citation of any supporting authority, held:

[W]e find nothing in the decisions applying the “dangerous instrumentality doctrine” to justify a holding that where an owner leaves his automobile at a service station for repairs or servicing he is liable solely by reason of ownership for the negligent operation thereof by one employee resulting in injury to another employee of the service station....

155 So.2d at 646.

In Petitte v. Welch, 167 So.2d 20 (Fla. 3d DCA 1964), cert. denied, 172 So.2d 598 (Fla.1965), the third district considered a case where an owner left his car in the possession of a service station operator and while in such possession a third person drove it on the premises of the service station and injured another person. The court in Petitte affirmed the trial court’s dismissal of the injured parties’ complaint for failure to state a cause of action against the automobile owner. The Petitte court refused to distinguish Fry on the facts and applied the respondeat superior limitation to the doctrine of dangerous instrumentality. The court held that the complaint affirmatively demonstrated that “the automobile was not being operated by an agent or servant of the defendant, owner, but on the contrary that it was being operated by a person under the direction and control of the filling station operator.” 167 So.2d at 22.

In Florida Power and Light Co. v. Price, 170 So.2d 293 (Fla.1964), the supreme court considered a case invoking the dangerous instrumentality doctrine as applied to the construction and energizing of an electrical power distribution system instead of an automobile. The court applied an independent contractor exception to the liability of an owner under the dangerous instrumentality doctrine. In doing so, the Price court analogized the independent contractor situation before it with the exceptions to the dangerous instrumentality doctrine stated in Fry and Petitte. 170 So.2d at 297.

In Price, the court held:

[Liability flowing from operation of the doctrines of dangerous instrumentalities and inherently dangerous work is subject to the exception that where the defendant owner contracts with an independent contractor ... and the latter’s employee is injured by a dangerous instrumentality [379]*379owned by the defendant which is negligently applied or operated by another employee of the independent contractor but wholly without any negligence on the part of the defendant owner, the latter will not be held liable.

170 So.2d at 298. The court illustrated the exception by stating, “For example ... where an automobile is left with a filling station operator for service and it is negligently operated by an attendant without liability over to its owner.” Price, 170 So.2d at 298.

This court then, in Patrick v. Faircloth Buick Co., 185 So.2d 522 (Fla. 2d DCA 1966), cert, discharged, 198 So.2d 825 (Fla. 1967), expressly relied on Fry, Price and Petitte in upholding a summary judgment for a defendant automobile owner. In Faircloth Buick, the owner’s wife had delivered the automobile for service to an automobile service agency. She requested that someone from the agency ride home with her and then return the automobile to the agency for servicing. The agency employee injured the third party plaintiff on the agency premises as he was driving the owner’s car back to the agency.

A divergent line of cases then began to appear with the case of Jordan v. Kelson, 299 So.2d 109 (Fla. 4th DCA 1974), cert. denied, 308 So.2d 587 (Fla.1975). In that case, the court relied only upon Southern Cotton Oil and did not cite Fry, Price, Petitte or Faircloth Buick. The court held that the owners of an automobile are liable for injuries to a third party where the injuries were sustained when an employee of an automobile repair shop was operating the owners’ car.

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Related

Michalek v. Shumate
524 So. 2d 426 (Supreme Court of Florida, 1988)
Hernandez v. Hertz Corp.
680 F. Supp. 378 (S.D. Florida, 1988)

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Bluebook (online)
511 So. 2d 377, 12 Fla. L. Weekly 1810, 1987 Fla. App. LEXIS 9479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michalek-v-shumate-fladistctapp-1987.