MARGARET MERCIER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KATHLEEN T. MERCIER, DECEASED, APPELLANT,
v.
FRANK MEADE, III, AND FRANK MEADE, II, APPELLEES
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In this wrongful death case, Margaret Mercier, as personal representative of her deceased daughter's estate, appealed the dismissal of her complaint against Frank Meade II and III for the death caused by a handgun. The court rejected the argument that a handgun owner is strictly liable for negligent use by another merely because a gun is a dangerous instrumentality, holding instead that Florida law requires proof of negligence in entrusting the weapon.
Florida law does not impose strict liability on a gun owner for another's negligent use merely because a handgun is a dangerous instrumentality. Instead, the owner is liable only if the owner was negligent in entrusting the gun to the person who used it negligently.
[1] A handgun is considered a dangerous instrumentality, but its owner is not automatically liable for another's negligent use of it.
[2] An owner of a handgun is liable for its negligent use by another only if the owner was negligent in entrusting the gun to that person.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“while a gun may be a dangerous instrumentality, the owner thereof is not liable for its negligent use by another unless the owner is negligent in entrusting the gun to the tortfeasor”
This quote establishes the core holding that dangerous instrumentality status alone does not create strict liability; negligence in entrustment must be proven.
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Join FLexlaw to unlock all legal intelligenceKathleen Mercier was killed by a .38 caliber handgun. Frank Meade II owned the gun and delivered it to his son, Frank Meade III, who was allegedly usi…
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DOWNEY, Judge.
Appellant, Margaret Mercier, as personal representative of the estate of Kathleen Mercier, sued appellees, Frank Meade, II, and Frank Meade, III, father and son, for the wrongful death of her daughter, Kathleen Mercier. Count One of the Complaint was solely against the son, Frank Meade, III. Said count alleged that Meade, III, “negligently maintained, handled and/or operated a .38 caliber handgun” killing Kathleen Mercier. Count Two sought to allege a cause of action against both father and son. It alleged the following things: Meade II, owned the gun in question; at the time of the shooting, Meade, III, possessed the gun with the knowledge and consent of Meade, II; Meade, II, delivered possession of the gun to Meade, III, with the intent of furthering the defendants’ mutual purposes. Count Three was also against both defendants for Meade, II’s, negligently entrusting the gun to Meade, III. The trial court granted a motion to dismiss Count Two with prejudice on October 18, 1978.
On January 9, 1979, the trial court entered summary final judgment on Count Three in favor of Meade, II. Appellant has filed a timely appeal from the summary final judgment of January 9, 1979.
However, the error argued on appeal is the alleged error of the trial court in dismissing with prejudice Count Two of the complaint. At no point in her brief does appellant assert the trial court committed any error in entering summary judgment on Count Three.
Appellant contends that a handgun is a dangerous instrumentality, and thus under the rule laid down in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), the owner of a handgun who loans it to another is liable, without more, for the other’s negligent use of the gun which injures a third person.
We reject that contention because the courts in Florida have consistently held that, while a gun may be a dangerous instrumentality, the owner thereof is not liable for its negligent use by another unless the owner is negligent in entrusting the gun to the tortfeasor. Horn v. I.B.I. Security Service of Florida, Inc., 317 So. 2d 444 (Fla.4th DCA 1975); Acosta v. Daughtry, 268 So. 2d 416 (Fla.3d DCA 1972); Brien v. 18925 Collins Ave. Corp., 233 So. 2d 847, 38 A.L.R.2d 1328 (Fla.3d DCA 1970).
Accordingly, the judgment appealed from is affirmed.
GLICKSTEIN and HURLEY, JJ., concur.
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Mathis v. Am. Fire & Cas. Co. & Samuel McKay, 505 So. 2d 652 (Fla. 2d DCA 1987)…tion for negligent entrustment of guns each, in contrast to the case at hand, concerned whether an entrustment of a gun which unquestionably had been deliberately given by defendant to one who shot plaintiff had been negligent. See Mercier v. Meade, 384 So. 2d 262 (Fla. 4th DCA 1980); Horn v. I.B.I. Security Service of Florida, Inc., 317 So. 2d 444 (Fla. 4th DCA 1975); Acosta v. Daughtry, 268 So. 2d 416 (Fla. 3d DCA 1972); Brien v. 18925 Collins Avenue Corp., 233 So. 2d 847 (Fla. 3d DCA 1970). Plaintiff, cit…
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Foster v. Arthur, 519 So. 2d 1092 (Fla. 1st DCA 1988)…rsonally delivers the gun to that person to be used by him. E.g., see Jordan v. Lamar, supra (owner loaned his revolver to a friend); Goodell v. Nemeth, 501 So. 2d 36 (Fla.2d DCA 1986) (owner handed his gun to a guest in his home); Mercier v. Meade, 384 So. 2d 262 (Fla. 4th DCA 1980) (father delivered his gun to his son for their mutual benefit); Acosta v. Daughtry, 268 So. 2d 416 (Fla.3d DCA 1972), cert. den. 277 So. 2d 788 (Fla.1973) (father delivered his revolver to his son to restore it). Consent to use…
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Harley Jordan v. Lawson Lamar, 510 So. 2d 648 (Fla. 5th DCA 1987)…e for its negligent or intentional use by a [*649] bailee to injure a third person unless the owner was negligent in entrusting the firearm to the bailee. Mathis v. American Fire and Casualty Co., 505 So. 2d 652 (Fla. 2d DCA 1987); Mercier v. Meade, 384 So. 2d 262 (Fla. 4th DCA 1980); Horn v. IBI Security Service of Florida, Inc., 317 So. 2d 444 (Fla. 4th DCA 1975), cert. denied, 333 So. 2d 463 (Fla.1976); Langill v. Columbia, 289 So. 2d 460 (Fla. 3d DCA 1974); Acosta v. Daughtry, 268 So. 2d 416 (Fla. 3d DCA…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kraemer v. Gen. Motors Acceptance Corp., 572 So. 2d 1363 (Fla. 1990)
- S. Cotton Oil Co. v. Anderson, 80 Fla. 441 (Fla. 1920)
- Brien v. 18925 Collins Ave. Corp., 233 So. 2d 847 (Fla. 3d DCA 1970)
- Acosta v. Daughtry, 268 So. 2d 416 (Fla. 3d DCA 1972)
- Horn v. I. B. I. Sec. Serv. OF Fla., Inc., 317 So. 2d 444 (Fla. 4th DCA 1975)
- City OF Fort Walton Beach v. S. States Steel Corp., 268 So. 2d 416 (Fla. 1st DCA 1972)