401.14 PRELIMINARY ISSUES — VICARIOUS LIABILITY

On the (claimant’s) claim there is a preliminary issue for you to decide. That issue is:

a. Owner, lessee, or bailee of vehicle driven by another:

whether (defendant) was the [owner] [lessee] [or] [bailee] of the vehicle driven by (driver) [or] whether (driver) was operating the vehicle with the express or implied consent of (defendant). A person who [owns] [is the lessee of] [or] [is the bailee of] a vehicle and who expressly or impliedly consents to another’s use of it is responsible for its operation.

[An owner of a vehicle is one who has legal title to the vehicle and who has the right of control and authority over its use.]

[A lessee of a vehicle is one who has leased or rented the vehicle from its owner.]

[A bailee of a vehicle is one to whom the vehicle has been furnished or delivered by [its owner] [a person with authority over its use] for a particular purpose, with the understanding that it will be returned.]

NOTES ON USE FOR 401.14a

1. The general rules stated above will be appropriate in most cases in which there is an issue concerning the status of a defendant under Florida’s “dangerous instrumentality” doctrine. See generally Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000). They are subject to a number of exceptions, however. For example, the owner of a vehicle who has delivered possession of it to another under a conditional sales contract, and who has complied with all the requirements of F.S. 319.22, is not liable for its negligent operation. See Aurbach; Palmer v. R. S. Evans, Jacksonville, Inc., 81 So. 2d 635 (Fla. 1955). The owner of a vehicle who has leased it to another under a lease for one year or longer and who has complied with all the requirements of F.S. 324.021(9)(b)1, is not liable for its negligent operation. See Ady v. American Honda Finance Corp., 675 So. 2d 577 (Fla. 1996). Additional limitations upon vicarious liability are set forth in F.S. 324.021(9)(b) and 324.021(9)(c). An owner or lessee who has delivered a vehicle to a repair shop for maintenance is ordinarily not liable for its negligent operation during servicing, service-related testing, or transport of the vehicle by the bailee. See Michalek v. Shumate, 524 So. 2d 426 (Fla. 1988); Castillo v. Bickley, 363 So. 2d 792 (Fla. 1978). Although an owner is liable for a personal injury or wrongful death negligently inflicted by a bailee upon a third party, an owner is not liable for a personal injury or wrongful death negligently inflicted by a bailee upon a co-bailee. See Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109 (Fla. 2002); Raydel, Ltd. v. Medcalfe, 178 So. 2d 569 (Fla. 1965); May v. Palm Beach Chemical Co., 77 So. 2d 468 (Fla. 1955). And proof of express or implied consent is not required where an unattended vehicle has been stolen because the owner left the keys in the ignition. See Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467 (Fla. 1978); Vining v. Avis Rent-A-Car System, Inc., 354 So. 2d 54 (Fla. 1977). Other exceptions may exist for which special instructions may be required. See generally 4A Fla.Jur.2d, Automobiles and Other Vehicles, §§667–690. The instruction may also have to be tailored to fit the particular factual circumstances of the case.

2. Dangerous instrumentality. The committee recommends that the court not instruct the jury that an automobile is a “dangerous instrumentality,” such an instruction being unnecessary and essentially argumentative.

b. Agency.

(1). Agency, master and servant (independent contractor distinguished):

whether (name) was an agent of (defendant) and was acting within the scope of [his] [her] employment at the time and place of the incident in this case. [An agent is a person who is employed to act for another, and whose actions are controlled by [his] [her] employer or are subject to [his] [her] employer’s right of control.] An employer is responsible for the negligence of [his] [her] [its] agent if such negligence occurs while the agent is performing services which [he] [she] was employed to perform or while the agent is acting at least in part because of a desire to serve [his] [her] employer and is doing something that is reasonably incidental to [his] [her] employment or something the doing of which was reasonably foreseeable and reasonably to be expected of persons similarly employed.

[But a person is not responsible for the negligence of an independent contractor or of the agents or employees of an independent contractor. An independent contractor is a [person] [business] who is engaged by another to perform specific work according to [his] [her] [its] own methods and whose methods of performing the work are not controlled by the person engaging [him] [her] [it] and are not subject to that person’s right of control.]

NOTE ON USE FOR 401.14b(1)

1. For purposes of defining liability for negligence, there is no reason to distinguish between the relationship of principal and agent and the relationship of master and servant. See Lynch v. Walker, 31 So. 2d 268 (Fla. 1947).

2. For judicial opinions relating to an agency instruction in the context of a franchise relationship, see Domino’s Pizza, LLC v. Wiederhold, 306 So. 3d 384 (Fla. 5th DCA 2020) and Ross v. Elaine Powers Figure Salon, 289 So. 2d 70 (Fla. 4th DCA 1974).

(2). Apparent agency:

whether (name) was an apparent agent of (defendant) and was acting within the scope of [his] [her] apparent authority at the time and place of the incident in this case. [An agent is a person who is employed to act for another, and whose actions are controlled by [his] [her] employer or [is] [are] subject to [his] [her] employer’s right of control.] (Name) was an apparent agent if (defendant) by [his] [her] [its] words or conduct caused or allowed (claimant) to believe that (name) was an agent of and had authority to act for (defendant) and if (claimant) justifiably relied upon that belief in dealing with (name) as the agent of (defendant). A person is responsible for the negligence of [his] [her] [its] apparent agent occurring while the apparent agent is acting within the scope of [his] [her] apparent authority.

NOTES ON USE FOR 401.14b(1) AND (2)

1. If the court determines that issues on both actual agency and apparent agency should be submitted to the jury, give both instructions 401.14b(1) and b(2), omitting the bracketed language in b(2). When instruction 401.14b(2) is used alone, give the bracketed language.

2. For the rules which might be applicable if the independent contractor is engaged in inherently dangerous work or using a dangerous instrumentality, see Florida Power & Light Co. v. Price, 170 So. 2d 293 (Fla. 1964).

c. Ultrahazardous work (exception to nonliability for negligence of independent contractor):

whether (defendant) [authorized or permitted another to carry on] [or] [knowingly assisted or participated in carrying on], upon premises owned or possessed by [him] [her], an activity which (defendant) knew or should have known was ultrahazardous. The performance of work is ultrahazardous if there is a real and substantial danger inherent in the work itself and if the work is of such a nature that, in the ordinary course of events, performance of the work will probably cause injury if proper precautions are not taken. A person who [authorizes or permits another to carry on] [or] [knowingly assists or participates in carrying on] ultrahazardous work on premises owned or possessed by the employer is responsible for negligence in the performance of the work by the other or by his or her agents and employees.

NOTE ON USE FOR 401.14c

Price v. Florida Power & Light Co., 159 So. 2d 654 (Fla. 2d DCA 1963), rev’d 170 So. 2d 293. If the activity in question is ultrahazardous as a matter of law, this instruction should be omitted and instruction 401.13b, the preemptive instruction on vicarious liability, should be given.

d. Partnership:

whether (name) was a partner of (defendant) and was acting on behalf of the partnership and within the scope of its business at the time and place of the incident in this case. A partnership exists when two or more persons join together or agree to join together in a business or venture for their common benefit, each contributing property, money or services and each having an interest in any profits. Each member of a partnership is responsible for the negligence of any partner if such negligence occurs while the partner is acting on behalf of the partnership and within the scope of the partnership’s business.

e. Joint venture:

whether at the time and place of the incident complained of, (name) was engaged in a joint venture with (defendant) and was acting on behalf of the joint venture and within the scope of its business at the time and place of the incident in this case. A joint venture exists when two or more persons combine their resources or efforts and agree to undertake some particular business transaction in which they have common interests in the purposes to be accomplished, joint control or right of control of the venture, joint ownership interest in the subject matter of the venture and a common right and duty to share in profits and losses. Each member of a joint venture is responsible for the negligence of another member if such other member’s negligence occurs while he or she is acting on behalf of the joint venture and within the scope of its business.

f. Joint enterprise (automobile):

whether (driver) was operating the automobile at the time and place of the [collision] [incident complained of] to further the purposes of a joint enterprise in which [he] [she] was engaged with (defendant passenger). A joint enterprise exists when two or more persons agree, expressly or impliedly, to engage in an activity in which they have a common interest in the purposes to be accomplished and equal rights to control and manage the operation of an automobile in the enterprise. Each member of a joint enterprise is responsible for the negligence of another member in the operation of the automobile if that negligence occurs while he or she is acting under the agreement and to further the purposes of the joint enterprise.

NOTE ON USE FOR 401.14

Instruction 401.14 should be followed by instruction 401.17, Burden of Proof on Preliminary Issues, unless there are other preliminary issues, in which case instruction 401.17 would follow all preliminary issue instructions.

(Amended July 28, 2022.)