Liability of the commercial driver: negligent hiring meets the dangerous instrumentality doctrine.

• Author: Latimer, Walter G.
• Position: Florida

The average driver on Florida's highways shares the road with a great many commercial vehicles. From semitrailers to jitneys, gasoline tankers to orange trucks, increased traffic leads to an increased rate of accidents. There are subtleties of liability for the injuries resulting from these accidents that are frequently overlooked. This article explores Florida's dangerous instrumentality doctrine, vicarious liability, and federal preemption of the regulation of commercial motor vehicles.

Vicarious liability for the negligence of a professional driver is determined by Florida's dangerous instrumentality doctrine, which provides that the owner of an inherently dangerous tool is liable for any injuries caused by that tool's operation.(1) In the seminal case of Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1938), the Florida Supreme Court first extended the doctrine to motor vehicles, holding that owners may be held accountable for any damages suffered by third parties as the result of the negligent operation of their vehicles, when they are driven by others with their knowledge and consent.

Many people now lease automobiles as financing alternatives to purchasing, and thereby never acquire legal title to the vehicle in which they have beneficial ownership. In recognition of this, the Florida Supreme Court created an exception to the dangerous instrumentality doctrine for long-term leases. Leasing companies were no longer held vicariously liable for any accidents involving vehicles in which they only held bare legal title, but no right of control.(2) This was later codified by our legislature.(3)

The distinction between bare legal title and beneficial ownership and control was recognized in Palmer v. R.S. Evans, Jacksonville, Inc., 81 So. 2d 635,637 (Fla. 1958):

[T]he rationale of our cases which impose tort liability upon the owner of an automobile operated by another ... would not be served by extending the doctrine to one who holds mere naked title as security for payment of the purchase price. In such a titleholder, the authority over the use of the vehicle which reposes in the beneficial owner is absent (emphasis in original).

Later decisions have uniformly reiterated that there must be an ability to exert control over a vehicle before vicarious liability will be imposed for its operation. In Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000), the plaintiff attempted to extend liability to both parents of an 18-year-old driver, only one of whom was a title owner, based upon the nonowner parent's alleged right to control the vehicle driven by his daughter. Both parents paid for the purchase and maintenance of the vehicle, and it was kept in their garage. The court expressed unwillingness to stretch the limits of liability beyond those who lack actual control over a vehicle:

In the absence of common law or statutory authority, we hold that a parent who owns neither legal title nor an identifiable property interest in a motor vehicle should not be held vicariously liable for his or her child's negligent operation of the vehicle under the dangerous instrumentality doctrine.(4)

Aurbach has signaled the end of a lock-step application of the doctrine based simply upon ownership. While this is necessarily a more fact-intensive inquiry than positing liability on whomever holds title, it is an approach which resonates with modern tort concepts and keeps Florida in the forefront of allocating liability based upon fault.

Negligent Hiring

Respondeat superior is a similar but separate theory of recovery for negligent driving that imposes liability upon a principal for the negligent acts of his agent undertaken within the scope of the agent's employment.(5) If a driver acts within the scope of his employment in causing a collision, a plaintiff may pursue his master under respondeat superior. The same is true for a motor carrier's liability for its driver's grossly negligent driving.(6) In Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977), a plaintiff shifted the typical focus of tort claims against a driver and his employer by bringing a claim against the motor carrier under a negligent hiring theory. The court held that the negligent hiring theory imposed no greater liability upon the motor carrier than its vicarious liability for its driver's negligence. Consequently, the burgeoning body of law developing under the theory of negligent hiring is largely irrelevant with respect to the professional driver. The employer, as the vehicle's owner, is already responsible for the operation of its dangerous instrumentality.

Both the dangerous instrumentality doctrine and the theory of respondeat superior have historically depended upon the ownership of the vehicle.(7) The Florida Supreme Court recognized in the landmark case of Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545 (Fla. 1981), that vicarious liability awards compensation for injuries without regard to fault. "The rationale for imposing vicarious liability is the employer's ultimate control over the servant and the instrumentality causing injury and the state's interest in compensating the victim."(8) Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120, 123 (Fla. 2d DCA 1987), addressed the specific relevance of Mercury Motors to the professional driver:

The application of Florida law reflects the needs of the interstate system. Vicarious liability is unique in its application of liability for wrongs attributable to an agent. Because of this unique feature, the interstate system is served by applying this principle with certainty, predictability and uniformity of result. Further, the basic policies underlying vicarious liability law demand that a master be found liable for the negligent acts of his agent. Failure to apply the vicarious liability law would...