Justia.com Opinion Summary: Petitioner sued respondent under the dangerous instrumentality doctrine after sustaining injuries caused by respondent's farm tractor. Petitioner sought review of the decision of the First District Court of Appeal, which held that a farm tractor was not a dangerous instrumentality as a matter of law. In so holding, the district court rejected petitioner's contentions that, because a farm tractor was a motor vehicle and because it was of such size and character as to be peculiarly dangerous in its operation, a farm tractor was a dangerous instrumentality. The court held that the dangerous instrumentality doctrine could apply to motor vehicles other than automobiles that have the ability to cause serious injury, and Southern Cotton Oil Co. v. Anderson, where the court concluded that the weight, speed, and mechanism of an automobile or motor vehicle made it particularly dangerous when in operation. Therefore, a farm tractor was a dangerous instrumentality and the First District's decision was quashed.
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Supreme Court of Florida
____________
No. SC09-1677
____________
JAMES EARL RIPPY,
Petitioner,
vs.
JAMES SHEPARD,
Respondent.
[January 19, 2012]
LABARGA, J.
James Earl Rippy seeks review of the decision of the First District Court of
Appeal in Rippy v. Shepard, 15 So. 3d 921 (Fla. 1st DCA 2009), which held that a
farm tractor is not a dangerous instrumentality as a matter of law. In so holding,
the district court rejected Rippy‟s contentions that, because a farm tractor is a
motor vehicle and because it is of such size and character as to be peculiarly
dangerous in its operation, a farm tractor is a dangerous instrumentality. The First
District‟s opinion conflicts with our precedent set forth in Meister v. Fisher, 462
So. 2d 1071, 1072 (Fla. 1984), where we held that the dangerous instrumentality
doctrine can apply to motor vehicles other than automobiles that have the ability to
cause serious injury, and Southern Cotton Oil Co. v. Anderson, 86 So. 629, 636
(Fla. 1920), where we concluded that the weight, speed, and mechanism of an
automobile or motor vehicle make it peculiarly dangerous when in operation. We
have jurisdiction based on the misapplication of these decisions. See art. V,
§ 3(b)(3), Fla. Const.; see also Wallace v. Dean, 3 So. 3d 1035, 1040 (Fla. 2009)
(identifying misapplication of decisions as a basis for express and direct conflict
jurisdiction under article V, section 3(b)(3)). As we will explain more fully below,
we conclude that a farm tractor is a dangerous instrumentality. Accordingly, we
quash the decision of the First District in Rippy. We begin our discussion with an
overview of the facts and procedural history of this case.
FACTS AND PROCEDURAL HISTORY
Petitioner James Earl Rippy sued Respondent James Shepard under the
dangerous instrumentality doctrine after sustaining injuries caused by Shepard‟s
farm tractor on December 16, 2004. Shepard subsequently moved to dismiss
Rippy‟s amended complaint. The trial court granted Shepard‟s motion and
dismissed the amended complaint with prejudice, finding that a farm tractor is not
a dangerous instrumentality under Florida law and that the complaint thus failed to
state a cause of action against Shepard.
On appeal, the First District also held that a farm tractor is not a dangerous
instrumentality. Rippy, 15 So. 3d at 923. In so holding, the First District rejected
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Rippy‟s contention that, because the Legislature defines a farm tractor as a “motor
vehicle” and regulates its use, a farm tractor is a dangerous instrumentality. Id. at
922. The district court also rejected Rippy‟s assertion that, because “it is of such
size and character as to be peculiarly dangerous in its operation,” a farm tractor is a
dangerous instrumentality. Id. at 923. Rippy now challenges the district court‟s
ruling.
ANALYSIS
The parties in this case dispute whether a farm tractor is a dangerous
instrumentality. The issue presents a pure question of law and is thus subject to
this Court‟s de novo review. See D‟Angelo v. Fitzmaurice, 863 So. 2d 311, 314
(Fla. 2003) (stating that pure questions of law are reviewed de novo).
Generally speaking, Florida‟s dangerous instrumentality doctrine imposes
“vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that
motor vehicle to an individual whose negligent operation causes damage to
another.” Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000) (citing S. Cotton Oil
Co., 86 So. at 637). The doctrine applies to any “instrumentality of known
qualities [that] is so peculiarly dangerous in its operation” as to justify application
of this common law principle. S. Cotton Oil Co., 86 So. at 638 (on petition for
rehearing).
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The dangerous instrumentality doctrine is an old and well-settled rule that
can be traced back to English common law. Early in its development, the doctrine
applied to objects that “common knowledge and common experience proved to be
. . . potent sources of danger.” Id. at 631. We first applied the doctrine to
automobiles in Southern Cotton Oil Co., where we noted:
[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 (on petition for rehearing). “The liability grows out of the obligation of
the owner to have the vehicle, that is not inherently dangerous per se but peculiarly
dangerous in its use, properly operated when it is by his authority on the public
highway.” Id. at 632 (quoting Anderson v. S. Cotton Oil Co., 74 So. 975, 978 (Fla.
1917)).
We have previously explained the purpose and premise of the dangerous
instrumentality doctrine as follows:
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 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 v. General Motors Acceptance Corp., 572 So. 2d 1363, 1365 (Fla. 1990).
The doctrine is based on “the practical fact that the owner of an instrumentality
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which [has] the capability of causing death or destruction should in justice answer
for misuse of this instrumentality by anyone operating it with his knowledge and
consent.” Meister, 462 So. 2d at 1072 (emphasis omitted) (quoting Jordan v.
Kelson, 299 So. 2d 109, 111 (Fla. 4th DCA 1974)).
When we first applied the dangerous instrumentality doctrine to an
automobile in Southern Cotton Oil Co., we examined at length the dangerous
character of the automobile as operated on the public highways. S. Cotton Oil Co.,
86 So. at 631-33. In his concurring opinion, which the majority adopted, Justice
Whitfield observed:
The automobile or motor vehicle is an instrumentality of
service, whose weight, speed, and mechanism make it peculiarly
dangerous when in operation on public highways.
Among the principles of the common law, that are designed to
conserve the public safety, are those that require the exercise of due
care in the use on the public highways of instrumentalities that are
peculiarly dangerous in their operation, and impose upon the owner of
such an instrumentality liability to persons for injuries to them
proximately caused by the negligent use of the instrumentality upon
the public highways by any one who has the authority or permission
of the owner to use or operate it. These principles are applicable to
the use of any instrumentality that may be produced by human skill,
which materially increases the hazards of travel upon the public
highways . . . .
S. Cotton Oil Co., 86 So. at 636 (Whitfield, J., concurring). Importantly, we have
since held that the dangerous instrumentality doctrine is not limited to motor
vehicles being operated on a public highway and may apply to a motor vehicle
operated on private property. See Meister, 462 So. 2d at 1073.
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Subsequent to our decision in Southern Cotton Oil Co., Florida courts have
extended the doctrine to golf carts, trucks, buses, airplanes, tow-motors, and other
motorized vehicles. See, e.g., Meister, 462 So. 2d at 1071 (golf carts); see also id.
at 1072 (recognizing trucks and buses as dangerous instrumentalities); Orefice v.
Albert, 237 So. 2d 142, 145 (Fla. 1970) (airplanes); Eagle Stevedores, Inc. v.
Thomas, 145 So. 2d 551, 552 (Fla. 3d DCA 1962) (tow-motors). We are now
asked to consider whether the dangerous instrumentality doctrine applies to farm
tractors. For the reasons that follow, we hold that it does.
A primary factor in determining whether an object is a dangerous
instrumentality is whether the object at issue is a motor vehicle. See, e.g., Meister,
462 So. 2d at 1072. Clearly, a farm tractor is a motor vehicle as it has been defined
as such by the Legislature. For instance, section 316.003(12), Florida Statutes
(2004), defines a farm tractor as “[a]ny motor vehicle designed and used primarily
as a farm implement for drawing plows, mowing machines, and other implements
of husbandry.” The Legislature also refers to a farm tractor as a motor vehicle in
section 322.01(19), Florida Statutes (2004). Additionally, the Legislature has
enacted regulations to ensure the safe operation of farm tractors. For instance, the
Legislature requires farm tractors manufactured or assembled after January 1,
1972, to be equipped with “vehicular hazard-warning lights visible from a distance
of not less than 1,000 feet to the front and rear in normal sunlight” whenever
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operated on a highway. § 316.2295(1), Fla. Stat. (2004). Such farm tractors are
generally required to be equipped with slow-moving vehicle emblems, as well as
lamps and reflectors that meet certain specifications. § 316.2295(2), (5), Fla. Stat.
(2004).
The dissent expresses concern that our decision expands the dangerous
instrumentality doctrine beyond its original intent, which was to address harm to
the public arising from the negligent use of an instrumentality that is peculiarly
dangerous in its operation during its primary, rather than occasional, use.
Dissenting op. at 10-11. The dissent is correct that no one test is determinative of
whether an instrumentality is dangerous. However, the contention in the dissent
that this Court‟s ruling in Meister—that a golf cart is a dangerous
instrumentality—“sets the bar” low, see dissenting op. at 16, and the resulting
implication that this has become the one touchstone by which all other
instrumentalities are measured, is incorrect. Further, one point of significance in
our decision in Meister is that we clearly held that the fact “[t]hat the vehicle is
being operated on the public highways of this state is likewise not required before
the dangerous instrumentality doctrine can come into play.” Meister, 462 So. 2d at
1073. We quoted with approval in Meister from the decision of the Fourth District
Court of Appeal in Reid v. Associated Engineering of Osceola, Inc., 295 So. 2d
125 (Fla. 4th DCA 1974), where that court stated:
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We see neither reason nor logic in the view that a motor vehicle in
operation, which is a dangerous instrumentality while being operated
upon the public highway, somehow ceases to be a dangerous
instrumentality the instant the driver causes it to turn off the public
street or highway and onto a private drive or other private property.
Although it is most probable that a motor vehicle being operated on
private property would be moving at a slower speed than one being
operated upon the public street or highway, common sense tells us
that in all other respects such vehicle while in motion is equally
dangerous to persons and property no matter where it is operated, and
to make the owner‟s liability for his permittee‟s negligence in the
operation of such vehicle depend upon whether the vehicle is on or off
the public highway simply leads to absurd results.
Meister, 462 So. 2d at 1073 (quoting Reid, 295 So. 2d at 129) (emphasis added).
This same logic leads to the inescapable conclusion that even though a
tractor is most commonly operated on farm property, it is not solely operated in
that context. Tractors are also operated in road right-of-way maintenance,
commercial landscaping, and in construction settings. It is an instrumentality often
seen on public highways and rights-of-way, performing these varied services.
Moreover, it is common knowledge that tractors vary in size but are often powerful
vehicles of such size and speed that wherever they are operated, they can be
dangerous to those persons who come into contact with them. Just as we said in
Meister that “a golf cart when negligently operated on a golf course, has the same
ability to cause serious injury as does any motor vehicle operated on a public
highway,” Meister, 462 So. 2d at 1073, it can be said that a tractor when
negligently operated on private property has the same ability to cause serious
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injury as does any motor vehicle operated on a public highway. Our decision
today is in accord with these criteria and is not based, as the dissent suggests,
simply on “a comparison between the device at issue and a golf cart.” Dissenting
op. at 16.
Based on “common knowledge and common experience,” there is no doubt
that a farm tractor is peculiarly dangerous in its operation so as to justify the
imposition of vicarious liability. See S. Cotton Oil Co., 86 So. at 631, 638. The
weight, speed, and mechanism of farm tractors render their negligent use peculiarly
dangerous to others. Furthermore, farm tractors frequently operate along state
roads and other public areas, thereby subjecting the public to danger of injury. Cf.
Harding v. Allen-Laux, Inc., 559 So. 2d 107, 108 (Fla. 2d DCA 1990) (holding that
a forklift that was often operated along the edge of a state road was a dangerous
instrumentality under the facts of the case). Accordingly, given their “potent
source of danger,” there can be no question that a farm tractor is an instrumentality
that materially increases the hazards of travel. Id. at 631, 636. We therefore hold
that a farm tractor is a dangerous instrumentality as a matter of law.
Based on the foregoing, we quash the decision of the First District Court of
Appeal in Rippy v. Shepard, 15 So. 3d 921 (Fla. 1st DCA 2009), and remand the
case to the First District for proceedings consistent herewith.
It is so ordered.
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PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY, C.J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
POLSTON, J., dissenting.
I respectfully dissent. The majority expands the dangerous instrumentality
doctrine, a common law doctrine unique to Florida that was initially created to
address the harm to the public arising from the negligent use of an instrumentality
that is peculiarly dangerous in its operation. See S. Cotton Oil Co. v. Anderson, 86
So. 629 (Fla. 1920) (on petition for rehearing). But the cases decided by this Court
and the district courts of appeal have failed to adhere to this legal standard in a way
that may be predictably applied, and the doctrine has become arbitrary. 1
1. Additionally, because there is no conflict between the First District‟s
decision in Rippy and the decisions cited by the petitioner (or those cited by the
majority), this Court does not have jurisdiction in this case. See art. V, § 3(b)(3),
Fla. Const. The decisions applied the dangerous instrumentality doctrine in the
context of completely different pieces of machinery. See Meister v. Fisher, 462
So. 2d 1071 (Fla. 1984) (holding that a golf cart is a dangerous instrumentality); S.
Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920) (holding that an automobile is
a dangerous instrumentality); Rippy v. Shepard, 15 So. 3d 921 (Fla. 1st DCA
2009) (holding that a farm tractor is not a dangerous instrumentality); Harding v.
Allen-Laux, Inc., 559 So. 2d 107 (Fla. 2d DCA 1990) (holding that a forklift is a
dangerous instrumentality). The varying conclusions regarding the particular
pieces of machinery involved in these decisions, however, contradict a common
sense understanding of what is dangerous and demonstrate the arbitrary nature of
the doctrine.
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The application of the doctrine has generally been based on the danger to the
public caused by the primary use of the instrumentality rather than by where it may
occasionally be operated. For instance, this Court has held that golf carts are
dangerous instrumentalities because of their use on public golf courses, which
thereby threaten the safety of the public on those courses. See Meister v. Fisher,
462 So. 2d 1071 (Fla. 1984). Further, an automobile has been held to be a
dangerous instrumentality because of its use on roadways and potential harm to the
public there. See S. Cotton, 86 So. 629.
In this case, based upon the doctrine‟s focus on the primary use of the
instrumentality and the resulting danger to the public, the First District properly
observed that farm tractors “are neither used as a mode of transportation nor
routinely operated in public places as to pose a sufficient danger to the public.”
Rippy v. Shepard, 15 So. 3d 921, 923 (Fla. 1st DCA 2009). In contrast, the
majority erroneously finds the doctrine applicable even though farm tractors are
primarily used on private property, not around the public, and the farm tractor in
this case was being used on private property.
I.
In 1920, this Court set forth the Florida‟s dangerous instrumentality doctrine
as follows:
[O]ne who authorizes and permits an instrumentality that is peculiarly
dangerous in its operation to be used by another on the public
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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. The doctrine “seeks to provide greater financial
responsibility to pay for the carnage on our roads” and is “premised upon the
theory that the one who originates the danger by entrusting the [instrumentality] 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 v.
Gen. Motors Acceptance Corp., 572 So. 2d 1363, 1365 (Fla. 1990). Further, once
a device is deemed a dangerous instrumentality, it retains that legal
characterization no matter where it is operated. See Meister, 462 So. 2d at 1073;
Reid v. Associated Eng‟g of Osceola, Inc., 295 So. 2d 125, 129 (Fla. 4th DCA
1974).
It is important to note that a dangerous instrumentality is not synonymous
with a dangerous per se item. This Court explained the difference as follows:
Wild animals and high explosives are dangerous per se; that is,
they may inflict injury without the immediate application of human
aid or instrumentality. Neither a locomotive, a trolley car, nor an
automobile is dangerous per se—by or through itself—in that neither
can inflict injury to a person, except by its use or operation. A
locomotive in the roundhouse, a trolley car in the barn, an automobile
in a garage, are almost as harmless as canary birds; but in operation
they are dangerous instrumentalities . . . .
S. Cotton, 86 So. at 632.
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While dangerous instrumentalities are not dangerous per se, the dangerous
instrumentality doctrine borrows the concept of strict liability from the common
law dangerous per se doctrine. See S. Cotton, 86 So. at 630-32. Under the
dangerous instrumentality doctrine, “[l]iability of the owner is said to be „strict‟
because a plaintiff need not prove that an owner negligently entrusted the vehicle
to its operator for liability to attach.” Burch v. Sun State Ford, Inc., 864 So. 2d
466, 470 (Fla. 5th DCA 2004) (relying on S. Cotton, 86 So. at 630-32). But, unlike
the common law dangerous per se doctrine, the plaintiff in a dangerous
instrumentality action “must prove some fault, albeit on the part of the operator,
which is then imputed to the owner under vicarious liability principles.” Id.
This concept of vicarious liability is borrowed from master-servant common
law. See S. Cotton, 86 So. at 632 (“The servant is empowered by the master to
discharge certain duties, and it is incumbent upon him to exercise the same care
and attention which the law requires of the master; and if that care and attention be
about the management and custody of dangerous appliances, the master cannot
shift the responsibility connected with the custody of such instruments to the
servant to whom they have been entrusted, and escape liability therefor.”) (quoting
Barmore v. Vicksburg, S. & P. Ry. Co., 38 So. 210, 214 (Miss. 1904)). However,
contrary to master-servant law, the dangerous instrumentality doctrine “imputes
liability to an owner even when the operator disobeys restrictions on the use of the
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[instrumentality], unless the disobedience rises to the level of theft or conversion.”
Burch, 864 So. 2d at 470 (citing Hertz Corp. v. Jackson, 617 So. 2d 1051, 1054
(Fla. 1993); Susco Car Rental Sys. of Fla. v. Leonard, 112 So. 2d 832, 836 (Fla.
1959)).
The dangerous instrumentality doctrine is unique to the State of Florida. See
Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000) (noting that the doctrine is
unique to Florida). “Only the courts of Florida have gone the length of saying that
an automobile is a „dangerous instrumentality,‟ for which the owner remains
responsible when it is negligently driven by another.” W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 73, at 524 (5th ed. 1984).
Significantly, the doctrine lacks any precise legal standards that courts may
apply when determining whether an instrumentality is a dangerous instrumentality.
See Canull v. Hodges, 584 So. 2d 1095, 1097 (Fla. 1st DCA 1991) (“The criteria
used by the court in the two opinions in the Southern Cotton Oil cases have been
selectively abandoned or utilized to expand the list of instruments deemed to be
dangerous . . . .”). Courts often consider whether the device falls within the
statutory definitions of a motor vehicle. See, e.g., Meister, 462 So. 2d at 1072;
Rippy, 15 So. 3d at 922-23; Eagle Stevedores, Inc. v. Thomas, 145 So. 2d 551, 552
(Fla. 3d DCA 1962). However, whether the item is a motor vehicle is not
controlling. See Edwards v. ABC Transp. Co., 616 So. 2d 142 (Fla. 5th DCA
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1993) (holding that a trailer is not a dangerous instrumentality even though it meets
the statutory definition of a motor vehicle); Harding v. Allen-Lauz, Inc. 559 So. 2d
107 (Fla. 2d DCA 1990) (holding that a forklift is a dangerous instrumentality even
though it is not statutorily a motor vehicle). Further, courts often, but not always,
consider the extent to which the Legislature has regulated the item. Compare
Meister, 462 So. 2d at 1072; S. Cotton, 86 So. at 634; Rippy, 15 So. 3d at 632;
with Harding, 559 So. 2d at 108.
In particular, courts vary tremendously in how they assess the danger the
instrumentality at issue poses to the public, which is a key question in determining
the applicability of the doctrine. Courts sometimes consider the number and
seriousness of accidents caused by the device. See S. Cotton, 86 So. at 633 (listing
figures for the number of deaths caused by automobiles); Meister, 462 So. 2d at
1073 (quoting expert witness‟ statement that “the types of accidents caused by the
operation of the carts are due to the particular design features of the carts and are
identical to those involving other motor vehicle accidents”); Festival Fun Parks,
LLC v. Gooch, 904 So. 2d 542, 543 (Fla. 4th DCA 2005) (noting testimony that
“less than 3% of all [concession go-kart] riders have „incidents‟ and that less than
1% are injured seriously enough to require emergency room treatment”). And in a
nod to the dangerous per se common law roots of the doctrine, some courts analyze
the particular characteristics of the device, such as its speed, size, and lifting
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ability. See Festival Fun Parks, 904 So. 2d at 543 (noting that the top speeds of
concession go-karts range from 14 to 20 miles per hour); Canull, 584 So. 2d at
1097-98 (noting that road graders cannot lift items or people high off the ground);
Harding, 559 So. 2d at 108 (noting that a forklift is a large vehicle with “protruding
steel tusks”).
Additionally, in assessing the instrumentality‟s danger to the public, some
courts consider whether the instrumentality is routinely operated in close proximity
to the public. See Meister, 462 So. 2d at 1073 (“Florida‟s tremendous tourist and
retirement communities make golf carts and golf courses extremely prevalent in
this state.”); Rippy, 15 So. 3d at 923 (explaining that farm tractors are not routinely
operated in public places). Other courts consider the location of the
instrumentality when the injury involved in the case occurred. See Harding, 559
So. 2d at 108 (considering the fact that the forklift was operating on a public
highway at the time); Eagle Stevedores, 145 So. 2d at 552 (noting that the towmotor caused the injury on a public street).
Furthermore, because the Court‟s prior ruling that a golf cart is a dangerous
instrumentality “sets the bar” so low, the decision of whether a device is a
dangerous instrumentality can even come down to a comparison between the
device at issue and a golf cart. For example, the Second District in Harding, 559
So. 2d at 108, conducted the following analysis:
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If an owner of a golf cart is liable under Florida‟s dangerous
instrumentality doctrine for the golf cart‟s operation on a golf course
by a lessee, Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984), surely the
owner of this larger, four-wheel vehicle with protruding steel tusks is
liable under this doctrine for its operation on a public highway by a
lessee.
In other words, does the instrumentality at issue appear to be more dangerous than
a golf cart?
Contrary to the majority‟s discussion of my dissent, I do not believe a golf
cart “has become the one touchstone by which all other instrumentalities are
measured.” Majority op. at 7. Instead, I believe the dangerous instrumentality
doctrine currently lacks any precise legal standards, which makes its application
arbitrary and which creates odd comparisons in some instances to golf carts. As a
result, the doctrine has lost its original meaning and purpose.
Given the lack of a uniform set of factors courts consider when deciding
whether to apply the dangerous instrumentality doctrine, I disagree with the
majority‟s conclusion that the First District misapplied the doctrine in Rippy. See
majority op. at 2. In fact, contrary to the majority‟s analysis, the First District
actually considered the underlying question of the doctrine, namely whether the
instrumentality is so peculiarly dangerous in its operation that it poses a significant
danger to the public. See S. Cotton, 86 So. at 638. The First District properly
considered this question when it explained that farm tractors are not routinely
operated in public areas. Rippy, 15 So. 3d at 923. In other words, how can an
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instrumentality be deemed a sufficient danger to the public to justify the
application of the dangerous instrumentality doctrine when the instrumentality is
not generally operated near the public so as to pose a danger to the public? While I
agree with the majority that farm tractors operated on roadways present a danger to
the public, that is not the primary use for farm tractors, as noted by the First
District, and location of occasional use is not a determining factor. See Meister,
462 So. 2d at 1073; Reid, 295 So. 2d at 129.
The majority‟s decision in this case exemplifies the problems associated
with a limitless doctrine that lacks legal standards. For instance, the majority
admits that farm tractors are “most commonly operated on farm property” away
from the public. Majority op. at 8. However, the majority emphasizes that farm
tractors can occasionally be operated in closer proximity to the public when
conducting road maintenance, landscaping, and construction activities. Id.
Because the majority now rules that the device at issue can be used around the
public sometimes but not primarily, there are no limits on what can fall under the
dangerous instrumentality doctrine in the future.
II.
In conclusion, if this Court had jurisdiction, I would approve the First
District‟s application of the dangerous instrumentality doctrine in Rippy because
the First District properly analyzed the ultimate question of whether a farm tractor
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is peculiarly dangerous in its operation as to pose a significant danger to the public.
With the majority‟s expansive application of the doctrine to farm tractors that are
not primarily used around the public, and was not being used around the public in
this case, the doctrine seems to have lost its original meaning. What
instrumentality would not seem more dangerous than a golf cart?
Accordingly, the Florida Legislature may wish to address this common law
doctrine that is unique to Florida and adopt a more predictable legal standard for
imposing vicarious liability for the negligent operation of instrumentalities. I
respectfully dissent.
CANADY, C.J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
First District - Case No. 1D07-6626
(Levy County)
Steven L. Brannock, Celene H. Humphries, and Sarah C. Pellenbarg of Brannock
and Humphries, Tampa, Florida,
for Petitioner
Jennifer Cates Lester and Andrew A. Morey of Dell Graham, P.A., Gainesville,
Florida,
for Respondent
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Sharon C. Degnan and Caryn L. Bellus of Kubicki Draper, P.A., Miami, Florida,
on behalf of Florida Defense Lawyers Association,
as Amicus Curiae
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