JAMES RANDOLPH HARRIS

v.

SUNBELT RENTALS, INC., ETC.

SCALES, J.

In this personal injury action, appellant James Randolph Harris, the

plaintiff below, appeals entry of final summary judgment in favor of the co-

defendant below, appellee Sunbelt Rentals, Inc. (“Sunbelt”). Harris

sustained injuries when a Bobcat skid-steer loader being operated by co-

defendant Lee Risher dropped a large object onto Harris’s foot. Harris’s

complaint sought to hold Sunbelt, the loader’s owner, (i) directly liable for

Harris’s injuries for Sunbelt’s alleged negligent failure to require that the

operators of its loader be properly trained (count I), and (ii) vicariously liable

for Risher’s alleged, negligent operation of the loader under Florida’s

dangerous instrumentality doctrine (count II).

The trial court adjudicated Harris’s claims against Sunbelt in two

separate summary judgment orders, and under two different summary

judgment standards. First, the trial court adjudicated Harris’s vicarious

liability claim against Sunbelt in a September¹⁰, 2020 partial summary

judgment order that concluded the dangerous instrumentality doctrine did

not apply here because Harris was, as a matter of law, Risher’s “joint

adventurer” at the time of the accident. Florida’s former summary judgment

standard applies to this September¹⁰, 2020 partial summary judgment

order. See In re Amendments to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 77-78

(Fla. 2021).

claim against Sunbelt and entered an October 12, 2021 final summary

judgment1 that concluded Sunbelt’s alleged, negligent conduct was not the

proximate cause of Harris’s injuries. Florida’s “new” summary judgment

standard applies to the trial court’s adjudication of Harris’s negligence claim.

See In re Amendments to Fla. R. Civ. P. 1.510, 317 So. 3d at 77-78

(requiring, effective May 1, 2021, that Florida Rule of Civil Procedure 1.510

be construed in accordance with the federal summary judgment standard).

Without further elaboration, we affirm that portion of the October 12,

2021 final summary judgment adjudicating Harris’s active negligence claim

against Sunbelt. Because, though, genuine issues of material fact exist as

to Harris’s status as a joint adventurer, we reverse that portion of the final

summary judgment incorporating the September¹⁰, 2020 partial summary

judgment order, and remand for further proceedings on Harris’s vicarious

liability claim against Sunbelt.

I. RELEVANT FACTS AND PROCEDURAL HISTORY2

1 The September¹⁰, 2020 partial summary judgment order (adjudicating Count II of Harris’s complaint) was subsumed into this October 12, 2021 order, so that the resulting October 12, 2021 summary judgment order constituted a final adjudication of all of Harris’s claims against Sunbelt.² The facts related herein are taken from the summary judgment evidence submitted by the parties below, viewed in the light most favorable to Harris.

debris clearing. In September 2017, Pagan rented the subject loader from

Sunbelt to clean up debris in Key Largo caused by Hurricane Irma. Lee

Risher is a licensed contractor who Pagan subsequently hired for one such

debris clean-up job on private property and to whom Pagan entrusted

Sunbelt’s loader to perform the task.

Appellant Harris accompanied Risher to the clean-up site and assisted

Risher with clearing the debris. Specifically, Harris rode to the clean-up site

in Risher’s truck to which the trailer carrying the loader was attached. Upon

reaching the site, Harris placed portable ramps on the trailer so that Risher

could offload the loader from the trailer. Each time Risher filled the trailer

with debris using the loader, Harris drove the truck (to which the trailer was

still attached) to a separate location and emptied the debris from the trailer.

The accident that is the subject of this litigation occurred after the debris was

cleared, while Harris was retrieving the portable ramps so that Risher could

drive the loader back onto the trailer.

The loader was equipped with a grapple, which is a claw-like

attachment that is useful for grasping large objects, like fallen trees. The

loader could also be equipped with a general-purpose bucket attachment,

that is useful for carrying away dirt, soil, and other large objects. Risher

needed. Importantly, the ramps were placed inside this bucket attachment

after Risher offloaded the loader from the trailer, and the bucket attachment

was then set out of the way, on the ground, for the duration of the job.

After the last of the debris on the property was cleared, Risher directed

Harris to retrieve the ramps from within the bucket attachment so that Risher

could drive the loader back onto the trailer. Rather than leaving the bucket

attachment on the ground, however, Risher picked up the bucket attachment

using the loader’s grapple and drove the loader towards the trailer. After the

loader came to a complete stop, Harris approached the loader on foot and

reached into the bucket attachment to retrieve the ramps from within the

bucket. As Harris was attempting to lift the ramps out of the bucket

attachment, the loader lurched forward suddenly and unexpectedly, and the

bucket attachment slid from the grapple’s grip. The bucket attachment fell on

Harris’s foot, amputating two of his toes.

In November 2018, Harris filed this personal injury action against

Pagan, Risher, Lee Risher Construction, Inc., and Sunbelt. As to Sunbelt,

Harris alleged (i) a claim of direct negligence (count I) for Sunbelt’s alleged

failure to require that the operators of the rented loader be properly trained

in its safe operation, and (ii) pursuant to Florida’s dangerous instrumentality

operation of the loader. As stated, the trial court entered separate summary

judgment orders on each count of Harris’s complaint, culminating in the

October 12, 2021 final summary judgment that Harris timely appealed.

II. ANALYSIS3

A. The Dangerous Instrumentality Doctrine and the Joint Adventurer Exception Thereto

“Adopted in 1920, Florida’s dangerous instrumentality doctrine

imposes strict 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) (emphasis added).⁴ Under the doctrine, “an owner who gives

3 “An appellate court reviews de novo the trial court’s ruling on a motion for summary judgment.” Simmons v. Pub. Health Tr. of Miami-Dade Cnty., 338 So. 3d 1057, 1060 (Fla. 3d DCA 2022). While “the extension of the dangerous instrumentality doctrine is generally a pure question of law,” Salsbury v. Kapka, 41 So. 3d 1103, 1105 (Fla. 4th DCA 2010), summary judgment may only be entered where the underlying facts establishing the extension of the doctrine are not in dispute. See Lambert v. Indian River Elec., Inc., 551 So. 2d 518, 520 (Fla. 4th DCA 1989). 4 The doctrine generally applies to protect third party members of the general public who have been injured by the negligent operation of a motor vehicle. Smith v. Ryder Truck Rentals, Inc., 182 So. 2d 422, 424-25 (Fla. 1966); Fla. Power & Light Co. v. Price, 170 So. 2d 293, 298 (Fla. 1964). For this reason, under the doctrine “the driver of an automobile which was entrusted to him by its owner cannot hold the owner liable for injuries sustained by the driver arising from his own negligent operation of the automobile.” Price, 170 So.

implied consent, has a nondelegable obligation to ensure that the vehicle is

operated safely.” Id. The doctrine extends to “lessees and bailees of motor

vehicles who authorize other individuals to operate the motor vehicles.” Id.

at 63.

Over the years, the Florida Supreme Court has recognized certain

exceptions to the dangerous instrumentality doctrine. The exceptions

include: (i) where the owner “voluntarily entrusts his or her vehicle to a repair

service . . . , so long as the owner does not exercise control over the injury-

causing operation of the vehicle and is not otherwise negligent”; (ii) where

there has been a “breach of custody amounting to a species of conversion

or theft”; and (iii) “where a vehicle owner possesses bare naked title while

another party holds beneficial ownership.” Sager v. Blanco, 351 So. 3d 1129,

1132 (Fla. 3d DCA 2022).

Another recognized exception to the doctrine, relevant here, occurs

where the bailee entrusted with the owner’s vehicle injures another while

both persons are using the vehicle “in furtherance of a common purpose”

2d at 298. Nor can an injured bailee of a vehicle hold the vehicle’s owner liable for injuries caused by a co-bailee’s or sub-bailee’s negligent operation of the vehicle. See Raydel, Ltd. v. Medcalfe, 178 So. 2d 569, 572 (Fla. 1965); State Farm Mut. Auto. Ins. Co. v. Clauson, 511 So. 2d 1085, 1086 (Fla. 3d DCA 1987).

adventurers”). See Raydel, Ltd. v. Medcalfe, 178 So. 2d 569, 570-72 (Fla.

1965). In that instance, the injured joint adventurer is not viewed as an

unsuspecting member of the general public and, therefore, the vehicle’s

owner cannot be held vicariously liable for the bailee’s negligent operation

of the vehicle. Id. at 572; Ferrer v. FGC Enters., 805 So. 2d 967, 967 (Fla.

3d DCA 2002) (citing Raydel). “The test of a joint venture in this context is

whether [the individuals] are jointly operating and controlling the movement

of the vehicle with common purpose and community of interest in the

enterprise, with equal right to control and direct the conduct of each other.”

Cutcher v. Walker, 455 So. 2d 1335, 1337 (Fla. 1st DCA 1984).

B. The Trial Court’s Application of the Joint Adventurer Exception to the Dangerous Instrumentality Doctrine in this Case

The parties did not dispute below that the subject Bobcat loader was a

dangerous instrumentality. Nor was it disputed below that Sunbelt rented the

loader to Pagan, who then entrusted the loader to Risher to perform a debris

clean-up job. In moving for summary judgment on Harris’s vicarious liability

claim, Sunbelt argued primarily that it could not be held vicariously liable for

Risher’s alleged, negligent operation of the loader under the dangerous

instrumentality doctrine because Harris “was a joint adventurer in the use of

the Bobcat at the cleanup site, and in attempting to load the unit onto a trailer

partial summary judgment order adopted Sunbelt’s argument in this regard,

and, citing only to Raydel and Ferrer, concluded that, as a matter of law,

Harris and Risher were joint adventurers: “Mr. Harris was participating in the

use of the Bobcat at the time of his injury and he cannot recover under the

dangerous instrumentality doctrine.”

To prevail, though, in its summary judgment motion under the former

standard, Sunbelt had the burden to establish, through undisputed facts, that

Harris and Risher were “jointly operating and controlling the movement of

the vehicle with common purpose and community of interest in the

enterprise, with equal right to control and direct the conduct of each other.”

Cutcher, 455 So. 2d at 1337. 5 At most, the facts recited herein establish that

Harris and Risher acted with common purpose and community of interest in

loading/unloading the loader from the trailer and in cleaning up the debris

from the jobsite. Absent from this record are undisputed facts establishing

5 Under Florida’s former summary judgment standard, “[i]t is axiomatic that on a motion for summary judgment, it is the burden of the movant to demonstrate the nonexistence of any disputed issue of material fact.” Underwriters at Lloyds, London v. VIP Distribs., Inc., 629 So. 2d 291, 292 (Fla. 3d DCA 1993). Until this occurs, “no burden rests upon the non-moving party to submit evidence in proof of the essential elements of its cause of action.” Croft v. York, 244 So. 2d 161, 163 (Fla. 1st DCA 1971).

Harris’s equal right to control and direct Risher’s operation of the loader.⁶

We are, therefore, compelled to reverse that portion of the final summary

judgment adjudicating Count II of Harris’s complaint in favor of Sunbelt.⁷

6 It is in this regard that Ferrer – a case in which this Court affirmed a summary judgment that concluded, as a matter of law, the joint adventurer exception to the doctrine was applicable to defeat a plaintiff’s vicarious liability claim against a golf cart’s owner – is distinguishable. In Ferrer, the injured plaintiff had been driving a golf cart with a fellow member of a golf league. 805 So. 2d at 967. Members of the golf league received reduced green fees and use of the course’s golf carts. Id. When the plaintiff got out of the golf cart to hit his ball, the passenger moved into the cart’s driver’s seat and, in driving the cart to where his ball was located, struck and injured the plaintiff. Id. It is obvious from these facts that both the fellow member and the plaintiff had joint operation and control of the golf cart with the common purpose and community of interest in playing golf, with equal right to control and direct each other’s conduct as to the cart. Such facts are not present here.⁷ Harris argues, as he did below, that the joint adventurer exception to the dangerous instrumentality doctrine was overruled by the Florida Supreme Court in Newton v. Caterpillar Financial Services Corp., 253 So. 3d 1054 (Fla. 2018). We agree with the trial court, though, that Newton’s primary focus was on whether the vehicle involved in that case (also a skid steer loader) was a dangerous instrumentality. Id. at 1055. Newton determined that “a loader is a dangerous instrumentality as a matter of law.” Id. at 1057. As noted, the parties do not dispute that the instant loader was a dangerous instrumentality.

Newton also concluded, in cursory fashion, that “Newton’s status as an independent contractor does not exclude him from protection under the dangerous instrumentality doctrine.” Id. While not at all clear, it appears that the Florida Supreme Court may have been addressing, on the facts of that case, the application of an entirely different exception to the dangerous instrumentality doctrine: the independent contractor exception. See Price,

Accordingly, we affirm that portion of the trial court’s October 12, 2021

final summary judgment that adjudicated, in favor of Sunbelt, Harris’s active

negligence claim (count I). We reverse that portion of the final summary

judgment that incorporated the September¹⁰, 2020 order that granted

partial summary judgment in favor of Sunbelt on Harris’s vicarious liability

claim (count II), and remand for further proceedings.

Affirmed in part; reversed in part and remanded.

170 So. 2d at 298. Whatever the case, Harris’s status as an independent contractor was not argued by the parties at any point in the lower proceedings. Moreover, the Newton court neither mentioned the joint adventurer exception to the dangerous instrumentality doctrine nor even cited to the Court’s Raydel opinion – that first articulated the joint adventurer exception – or its progeny. We, therefore, reject Harris’ argument that Newton abrogated the joint adventurer exception to the dangerous instrumentality doctrine because our high court has been steadfast in its instruction that it does not overrule itself sub silentio. See Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002).

11