MARY HORN, AS ADMINISTRATRIX OF THE ESTATE OF CECIL WESTFALL, DECEASED, APPELLANT,
v.
I. B. I. SECURITY SERVICE OF FLORIDA, INC., A FLORIDA CORPORATION, APPELLEE
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In a wrongful death action arising from a security guard shooting a coworker with an entrusted firearm, the court reversed a jury verdict for the defendant and remanded for a new trial, holding that the trial court erred by imposing an additional burden on the plaintiff to prove the negligent entrustment itself was the legal cause of death.
The owner of a firearm may be found liable for injury if there was negligence in the entrustment of the firearm alone; proof is not required that the negligent entrustment itself was the direct legal cause of the injury. The jury instruction erroneously imposed an additional requirement that the negligent entrustment directly and in natural and continuous sequence produced the death, constituting reversible error.
[1] A jury instruction is erroneous if it imposes a burden of proof on the plaintiff that is not supported by law.
[2] For the owner of a firearm to be liable for injury negligently caused by the person to whom the firearm was entrusted, the owner need only be negligent in the entrustment…
Previewing 2 of 4 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“the owner of a firearm, a dangerous instrumentality, may be found liable for injury if there was negligence in the entrustment of the firearm.”
Establishes the legal standard that negligent entrustment alone is sufficient for liability without requiring proof that entrustment was the direct legal cause of injury.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant I.B.I. Security Service employed Cecil Westfall and George David Lowe as security guards. The defendant entrusted Lowe with a revolver for u…
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WALDEN, Judge.
Wrongful death action brought by Ad-ministratrix. Jury trial resulted in judgment for the defendant. Administratrix appeals. We reverse and remand for a new trial.
Erroneous jury instructions form the basis for our decision. They were:
“The issues for your determination on the claim of Cecil Westfall against IBI are: Whether IBI was negligent in the entrustment of the weapon to George David Lowe. And if you further find George David Lowe was negligent, whether such negligence of IBI and George David Lowe was a legal cause of the death of the decedent, Mr. Westfall.”
“Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.” (Emphasis added.)
The facts. Defendant employed West-fall and Lowe as security guards. Defendant entrusted Lowe with a revolver for use in the job.
While off the job and playing “quick draw”, Lowe shot and killed Westfall with the revolver, or with another which was missing from the job.
Please look back to the instructions. They clearly require as a basis for recovery four things:
1. A finding that defendant negligently entrusted the weapon to Lowe. 2. A finding that defendant’s negligent entrustment in 1 above was the legal cause (as defined) of Westfall’s death.
3. A finding that Lowe was negligent in the use of the weapon.
4. A finding that Lowe’s negligence in 3 above was the legal cause (as defined) of Westfall’s death.
It is the inclusion and imposition of number two requirement above that makes the jury instruction erroneous and causes us to reverse. For the owner of a firearm to be liable for injury negligently caused by the person to whom he has entrusted a gun, he need only be negligent in the en-trustment of that firearm. Langill v. Columbia, 289 So. 2d 460 (3d DCA Fla.1974); see also Acosta v. Daughtry, 268 So. 2d 416 (3d DCA Fla.1972); Brien v. 18925 Colline Ave. Corp., 233 So. 2d 847 (3d DCA Fla.1970).
In Langill v. Columbia, supra, the court held there should not have been a summary final judgment for defendant, Wackenhut Security Corporation, when one of its off-duty security guards had shot and killed a man with a firearm provided the guard by Wackenhut. The court found there existed genuine -issues of fact as to whether Wackenhut negligently entrusted the weapon to its employee. The court held:
“[T]he owner of a firearm, a dangerous instrumentality, may be found liable for injury if there was negligence in the en-trustment of the firearm.” (Emphasis added.)
In this case, the additional requirement that the negligent entrustment, itself, directly and in natural and continuous sequence produced the death of Westfall constituted an almost impossible burden, particularly under the facts of this case. The jury instruction imposed a burden of proof on plaintiff that is erroneous under the law. As such, it is reversible error. See Bessett v. Hackett, 66 So. 2d 694 (Fla. 1953); Ragland v. Clarson, 259 So. 2d 757 (1st DCA Fla.1972); Pepin v. Retail Discount Association, 226 So. 2d 145 (1st DCA Fla.1969); 32 Fla.Jur., Trial, § 163 (1960).
We reverse and remand for a new trial.
Reversed and remanded.
OWEN, J., concurs.
CROSS, J., dissents with opinion.
CROSS, Judge
(dissenting):
I respectfully dissent.
I agree the subject instruction given by the trial court is erroneous. However, the record on appeal contains no transcript of testimony of the trial proceedings, making it impossible to determine whether giving the erroneous instruction constituted harmful error. See City of Hialeah v. Robinson, 163 So. 2d 523 (Fla.App.1964); 32 Fla.Jur., Trial § 165.
Accordingly, I would affirm the final judgment entered by the trial court.
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Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997)…lorida criminal statutes cited in the Fourth District's opinion and discussed above. . See Skinner v. Ochiltree, 148 Fla. 705, 5 So. 2d 605 (1941); Foster v. Arthur, 519 So. 2d 1092 (Fla. 1st DCA 1988); Horn v. I.B.I. Sec. Service of Florida, Inc., 317 So. 2d 444 (Fla. 4th DCA 1975), cert. denied 333 So. 2d 463 (Fla.1976); Brien v. 18925 Collins Avenue Corp., 233 So. 2d 847 (Fla. 3d DCA 1970); Seabrook v. Taylor, 199 So. 2d 315 (Fla. 4th DCA), cert. denied, 204 So. 2d 331 (Fla. 1967). . The author, a circui…
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Mercier v. Meade, 384 So. 2d 262 (Fla. 4th DCA 1980)…tly 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 tort-feasor. 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., con…
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Mathis v. Am. Fire & Cas. Co. & Samuel McKay, 505 So. 2d 652 (Fla. 2d DCA 1987)…d 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, citing Thomas v. Atlantic Associates, Inc., 226 So. 2d 100 (Fla.1969), argues that liabil…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Bohanan, 66 So. 2d 694 (Fla. 1953)
- 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)
- City OF Fort Walton Beach v. S. States Steel Corp., 268 So. 2d 416 (Fla. 1st DCA 1972)
- Harris v. State, 163 So. 2d 523 (Fla. 2d DCA 1964)
- Ragland v. Clarson, 259 So. 2d 757 (Fla. 1st DCA 1972)
- Langill v. James Columbia & the Wackenhut Corp., 289 So. 2d 460 (Fla. 3d DCA 1974)
- Pepin v. Retail Disc. Ass'n, Inc., 226 So. 2d 145 (Fla. 1st DCA 1969)