TONY ALLEN OWEN, APPELLANT,
v.
LARRY WAGNER, MICHAEL MANN AND GOVERNMENT EMPLOYEES INSURANCE COMPANY, APPELLEES
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Tony Allen Owen appealed a summary judgment dismissing his negligence claim against Michael Mann and his insurance company following a car accident. Owen argued that Mann negligently consented to the operation of his vehicle by an unauthorized driver, but the court affirmed summary judgment because Owen failed to properly plead a violation of Florida's statutory duty to secure unattended vehicles.
The trial court properly granted summary judgment because Owen's claim was based entirely on alleged consent rather than on violation of the statutory duty under section 316.1975. Although such statutory violations constitute negligence per se when properly pleaded with supporting evidence, Owen failed to allege or argue his cause of action on that basis.
[1] A claim that a vehicle owner knowingly consented to the operation of his motor vehicle by another is distinct from a claim based on the owner's violation of a statute pro…
[2] A violation of the statute prohibiting leaving a motor vehicle unattended without stopping the engine, locking the ignition, and removing the keys constitutes negligence…
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“It is true that Vining holds that it is negligence per se when anyone violates section 316.1975, Florida Statutes (1981), by leaving any motor vehicle unattended without first stopping the engine, locking the ignition, and removing the keys.”
Establishes that statutory violation of leaving a vehicle unattended constitutes negligence per se under Florida law
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn May 16, 1982, Owen was injured when struck by a vehicle driven by Donald Ehrmig (also known as Larry Wagner). The vehicle was owned by Michael Mann…
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CAMPBELL, Judge.
Appellant, Tony Allen Owen, appeals the trial court’s order granting final summary judgment in favor of appellees, Michael Mann and Government Employees Insurance Company. We affirm.
On May 16, 1982, appellant was injured when his vehicle was struck by a vehicle driven by Donald Ehrmig, alias Larry Wagner, appellee herein, and owned by appellee Mann. Appellant filéd suit against Mann and appellee Government Employees Insurance Company, claiming that Mann knowingly consented to the operation of his motor vehicle by Ehrmig/Wagner. The record reveals that on the day in question, Mann’s wife Bonnie was driving the car. Ehrmig/Wagner took Mann’s car without Mrs. Mann’s permission after she left the car unattended with the keys in the ignition. Ehrmig/Wagner was subsequently involved in an accident with appellant which is the basis of the present action.
Appellees filed motions for final summary judgment, contending that there were no facts in the record to sustain appellant’s contention that Ehrmig/Wagner operated Mann’s car with his knowledge and consent. The trial court entered an order in favor of appellees, and appellant appealed.
On appeal, appellant claims that the trial court erred in granting appellees’ final summary judgment based on Vining v. Avis Rent-A-Car Systems, Inc., 354 So. 2d 54 (Fla.1977). It is true that Vining holds that it is negligence per se when anyone violates section 316.1975, Florida Statutes (1981), by leaving any motor vehicle unattended without first stopping the engine, locking the ignition, and removing the keys. Further, when an injured party alleges facts showing that a violation of section 316.1975, Florida Statutes, has occurred, and the evidence in the record supports the allegations and the resulting injury, then a cause of action has been stated upon which the injured party may be entitled to relief. Vin-ing.
Here, however, appellant bases his whole claim for relief against Mann and Government Employees Insurance Company on allegations that Mann consented to the use of his vehicle. The record in the trial court contains no allegations or argument that the cause of action was based on a violation of section 316.1975.
We, therefore, affirm the trial court’s order. OTT, C.J., and BOARDMAN, J., concur.
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Citator
Cited By
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Kraemer v. Gen. Motors Acceptance Corp., 572 So. 2d 1363 (Fla. 1990)…be decided on a case-by-case basis. . W. Keeton, Prosser and Keeton on the Law of Torts § 73 (5th ed. 1984). . E.g., Castillo v. Bickley, 363 So. 2d 792 (Fla.1978) (owner not liable when the car was in the custody of a repairman); Owen v. Wagner, 426 So. 2d 1262 (Fla. 2d DCA 1983) (owner exonerated when the car had been stolen). . Prior to the enactment of chapter 86-229, Laws of Florida, this definition was found in section 324.021(9), Florida Statutes. . Neither party argues that this statute is applica…
Authorities Cited
- Vining v. AVIS Rent-A-Car Sys., Inc., 354 So. 2d 54 (Fla. 1977)