On June 7, 2017, in
Stokes v. Wynn, No. 4D15-0873, the Florida Fourth DCA affirmed a trial verdict and final
judgment finding no liability on the part of the defendants, a rental
car company and its lessee, in a case involving an accident caused by
a third party who was determined to have taken the vehicle without the
express or implied permission of the lessee. On appeal, the plaintiff-appellant
objected to the trial court’s modification of the standard instruction
on express and implied consent, which added a sentence clarifying that
the defense was not only raising the general issue of lack of consent,
but was additionally contending that the at-fault driver’s use of
the vehicle exceeded the scope of any alleged implied consent and amounted
to a species of theft or conversion. This language had been requested
by the defense because there was some evidence in the case that could
have supported a jury conclusion that the at-fault driver reasonably believed
that the vehicle lessee had impliedly consented to the at-fault driver’s
moving the vehicle from a driveway so that other vehicles could exit,
but had not consented to any other use of the vehicle. The Fourth DCA
noted that the requested language was consistent with previous decisions
by the Florida Supreme Court indicating that only “conversion or
theft” will vitiate an owner’s previous express or implied
consent to the use of a vehicle and absolve the owner of liability.
See
Hertz Corp. v. Jackson, 617 So. 2d 1051, 1053 (Fla. 1993);
Susco Car Rental System of Florida v. Leonard, 112 So. 2d 832 (Fla. 1959); see also
Ryder TRS, Inc. v. Hirsch, 900 So. 2d 608 (Fla. 4th DCA 2005). It does not appear that the trial
court ever instructed the jury about the definitions of conversion or
theft, a fact which is not discussed in the Fourth DCA’s decision.
