# 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
, Appellee s

.

An a ppeal 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 appellee s

.

Before SCALES, LINDSEY, and MILLER, JJ.

MILLER, J.2 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 susta ined 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).3 filed suit against both mother and son . The complaint alleged negligent

entrustment a nd 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 summa ry 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 entrustm ent 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 t o 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 Blancos4 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. I n 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 arg uing 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

liabilit y 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 do ctrine as follows:5 [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 in strumentality 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 o wner is rendered liable “no

matter where the driver goes, stops, or starts.” Boggs v. Butler , 176 So. 174,

17 6 (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 justifi ed 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 originates6 the danger by e ntrusting 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 ap plied 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 o therwise 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 furth er diminished the reach of the doctrine

by declaring that a powered shopping cart in a retail establishment is not a7 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 ar guing 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 (F la. 2d DCA 1994)

. We examine the respective findings, in turn.8 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 cri minal 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:

Th e 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 hereund er 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 c onclude the trial court erred in concluding

that the statutes operated defensively to prevent Mr. Sager from arguing his9 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 re ad 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 veh icle 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 th at 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 Court10 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 agai nst 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 dis pute 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 in terpretations.

864 So. 2d at 4 69. 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

. Cotton11 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 primar y 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 4 70

– 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, I nc. 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 Law12 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 47 2. 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 q ualitatively 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.” ).13 vehicle” solely “relates to the potential for injury when it is used as a

conveyance.” Id. The court therefore concluded that whe n 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 liabilit y, 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 cau sed 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,14 and the underpinnings of the doctrine militate in favor of appli cation. 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 a mple 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

cas es by a jury.”); Douglas Danner & Larry L. Varn, Pattern Discovery: Motor

3 Crucially, the issue before this court in Sun Chevrolet wa s 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, t he 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 int entional 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 ex ist s 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, I nc. v. Burch , 889 So. 2d 778 , 778 (Fla. 2004) (determining “there is no actual conflict” between Burch and Sun Chevrolet ).15 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.16 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 d issent 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 sister17 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 operato r 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

— whi ch 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 47 1

. 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 creat ure 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 an d has few exc e ptions. ”).18 created doctrine’s applicability in this District. Finally, even if it were

necessary to abandon Crespo in favor of Burch to decide thi s 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 de termined 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, inc luding but not limited to, its adoption of Burch

.