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Florida First DCA rules that dangerous instrumentality doctrine did not extend liability to decedent's estate based on implied consent of nominated but not yet appointed personal representative

On February 21, 2017, in Depriest v. Greeson, No. 1D16-0807, the Florida First DCA was presented with the question whether in the gap between a decedent’s death and the appointment of a personal representative, Florida’s dangerous instrumentality doctrine makes the estate vicariously liable for damages that the decedent’s child allegedly caused while driving the decedent’s car. The trial court had granted summary judgment to the estate on the grounds that estate was not the title holder to the vehicle at the time of the accident. The First DCA rejected this analysis, concluding that the car became an asset of the estate at the moment of the decedent’s death, but upheld the summary judgment on the specific facts of the case.

The First DCA noted that Florida’s dangerous instrumentality doctrine is a creature of common law that “imposes . . . 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) (citing S. Cotton Oil Co. v. Anderson, 86 So. 629, 638 (Fla. 1920) (On Petition for Rehearing)). An owner voluntarily entrusts a vehicle to another when it gives that person authority to operate the vehicle by “either express or implied consent.” Id. (citing Hertz Corp. v. Jackson, 617 So. 2d 1051, 1053 (Fla. 1993)). The First DCA noted that the decedent’s daughter, who was driving the car at the time of the accident, had no ownership interest in the car and there was no evidence to find actual consent by the nominated but not yet appointed personal representative because he did not even know that she had access to the car.

The Court pointed out that while a nominated or putative but not yet appointed personal representative has the legal authority to act for the benefit of the estate prior to appointment, he or she is not statutorily required to do so. The Court held that because the nominated personal representative had no legal duty to prevent the decedent’s daughter from using the car, the doctrine of implied consent was inapplicable. However, the Court went on to elaborate an additional basis for concluding that there was no implied consent, focusing on the lack of interaction between the nominated personal representative and the daughter. Citing Ming v. Intramerican Car Rental, Inc., 913 So. 2d 650, 656 (Fla. 5th DCA 2005), the Court noted that most vehicle cases involving implied consent examine factors such as what a car owner knows about the driver’s prior use of the vehicle, the location and accessibility of the keys, the nature of any familial relationship between owner and driver, and the conduct of the parties after an accident occurs. The Court concluded that weighing these factors, including the fact that the nominated personal representative testified that he had no knowledge that the daughter ever had permission to drive the vehicle, implied consent was not proven in the case.