Chipping away at the dangerous instrumentality rule

FLORIDA LAW WEEKLY

VOLUME 48, NUMBER 46

CASES FROM THE WEEK OF NOVEMBER 17, 2023

THE FLORIDA SUPREME COURT FURTHER LIMITS THE REACH OF THE DANGEROUS INSTRUMENTALITY DOCTRINE

Emerson v. Lambert, 48 Fla. L. Weekly S227 (Fla. Nov. 16, 2023):

A 21-year-old driver struck a motorcyclist and rendered him quadriplegic. The defendant driver’s parents were married, and the vehicle was titled in his father’s name. However, his mother was the one who normally drove the vehicle. 

The plaintiff sued the driver’s mother as owner. She moved for a directed verdict arguing that family members could not be vicariously liable to injured victims when they were merely bailees. 

The trial court refused to direct a verdict and after the jury’s verdict entered judgment of almost $19 million against the driver and his mother. Pursuant to section 324.021(9)(b)3, Fla. Stat., the parties agreed to reduce the father’s liability to $600,000 (as he was the title owner).

The Florida Supreme Court went through a detailed history of the dangerous instrumentality doctrine, noting how the Florida legislature has stepped in since the late 80’s to limit passive and vicarious owners’ responsibility.  The court punctuated its analysis by writing “we are left with an enduring principle of the common law that liability under the dangerous instrumentality doctrine ‘will generally flow from legal title.’ 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.”

The court concluded that a bailment, especially the kind of gratuitous one that was at issue here, does not come with the same rights and responsibilities that attend title ownership.  Apropos of that conclusion, the supreme court ruled that while the father — who was the actual title owner of the vehicle — was responsible to the plaintiff up to the limits of the dangerous instrumentality statute, the driver’s mother, who simply gave the driver permission to use the car she normally used, could not be held responsible to the plaintiff under the dangerous instrumentality doctrine. 

In what has become common place at the Florida Supreme Court, Justice Labarga dissented.  He wrote that the interpretation of the bailee’s vicarious liability in this case would narrow and lead to inadequate damages awards for severely injured victims. 

As Justice Labarga observed, the doctrine’s aim is to provide greater financially responsibility to pay for the carnage on our roads. He believed that allowing recourse against two defendants instead of one aligned with that goal, especially in a case where plaintiff suffers with severe injuries that the plaintiff did in this one.

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO VACATE JUDGMENT ENTERED AFTER DEFENDANT FAILED TO TIMELY MOVE FOR A TRIAL DE NOVO FOLLOWING A NON-BINDING ARBITRATION

Polymer Extrusion Technology, Inc. v. Glasshape Manufacturing, 48 Fla. L. Weekly D2158 (Fla. 4^th DCA Nov. 8, 2023):

The parties participated in non-binding arbitration in a case where a glass manufacturer sued a resin manufacturer alleging that the resin was defective and caused discolored glass after UV exposure. 

The arbitrator, after a non-binding arbitration, issued a decision for the plaintiff for $5,253,000. The arbitrator acknowledged that there was still testimony to be adduced by depositions and expert reports. 

The defendant failed to request a trial de novo, and then moved to vacate the judgment based on excusable neglect. 

If a party fails to move for a trial de novo within twenty days of service of an arbitrator’s decision in a non-binding arbitration, the presiding judge shall enter orders to carry out the decision under rule 1.820(h).  Any motion to vacate that judgment should be considered on its merits, considering the case law pertaining to motions for excusable neglect under rule 1.540. 

Excusable neglect is found where an action results from a clerical error, a reasonable misunderstanding, a system gone awry or any other foibles to which human nature is heir.  However excusable neglect is not found where a party or his attorney simply forgot to do something, or intentionally ignored the necessity to take appropriate action (reasonably characterizing that behavior as gross negligence or a willful and intentional refusal to act).

According to the affidavits, the failure to file for a trial de novo boiled down to a calendaring error stemming from a series of oversights and miscommunications between defense counsel and his legal assistants.  The defense attorney did not “simply forget” about the motion for new trial.  The transition among legal assistants also was further evidence of a system gone awry.

In the face of this, along with the showing of meritorious defense, the court relieved defense counsel of his mistake. 

THE TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING AN INSURER’S MOTION FOR A NEW TRIAL, ALLEGING THAT THE INSURED’S CLOSING ARGUMENT STATING THAT BECAUSE THE INSURED WAS NOT SEEKING PAST MEDICAL EXPENSES AND HER EXPERTS “HAD NO DOG IN THE FIGHT” MADE THE JURORS THINK THAT THE INSURER MISLED THEM ABOUT THE FINANCIAL INTERESTS OF THOSE IN THE CASE

State Farm v. Matthews, 48 Fla. L. Weekly D2168 (Fla. 5^th DCA Nov. 9, 2023):

In this UM trial, State Farm’s counsel maintained throughout that the plaintiff’s medical providers were financially interested in the trial’s outcome, and therefore unreliable witnesses.  Mid-trial, the parties disagreed about the admissibility of certain medical bills and the trial court concluded that they were inadmissible.  The day before closing arguments, the plaintiff withdrew her claim for past medical expenses. 

In closing arguments, State Farm’s counsel noted that the plaintiff was not pursuing past medical expenses and went on to argue that the plaintiff’s case depended on testimony from financially self-interested, medical witnesses.  In making the claim, counsel asserted that the plaintiff should have presented witnesses with “no dog in the fight.”

During plaintiff’s rebuttal closing, counsel argued that because plaintiff was not making a claim for past medical expenses there was no legitimate argument that any of the providers had an interest in the fight. Counsel objected and the trial court overruled it. 

State Farm argued that this argument eviscerated its entire case, which was the bias and credibility of the plaintiff’s expert medical witnesses, and simply because the trial court ruled those bills were inadmissible and the plaintiff withdrew the claim for them did not allow the plaintiff to make a comment on that.

The Fifth District wasn’t biting. It wrote “despite this week- long assault, State Farm asserts that a single argument from plaintiff’s counsel ‘destroyed State Farm’s financial bias theme.’  State Farm’s view – – which holds in one felt swoop, plaintiff’s counsel successfully undid everything that State Farm had been doing for the entire trial – – simply gives plaintiff’s counsel too much credit.”  The court explained that plaintiff’s counsel only referenced two providers and said nothing about the other experts, so the suggestion that the argument obliterated all of State Farm’s bias and credibility was baseless. 

Even if those comments were improper, the court found they failed the “highly prejudicial and inflammatory” test meriting a new trial, because rarely do isolated comments meet that standard.

Even if the comments were misleading, they were isolated and made during a lengthy trial not designed to inflame the jurors’ minds or to obtain a verdict based on emotion.  Thus, State Farm’s contention that counsels’ remarks obliterated and completely destroyed the theme of its case fell far short.