Bruce Kyle Emerson v. Kyle Michael Lambert

Supreme Court of Florida
____________

No. SC2020-1311
____________

BRUCE KYLE EMERSON,
Petitioner,

vs.

KYLE MICHAEL LAMBERT, et al.,
Respondents.

November 16, 2023

COURIEL, J.

This is a case about an automobile accident involving a family

car. How much the plaintiff can recover depends on the trial

court’s application of Florida’s dangerous instrumentality doctrine.

That century-old common-law rule of tort liability, as applied to

traffic accidents, provides that “[t]he owners of automobiles in this

state are bound to observe statutory regulations of their use, and

assume liability commensurate with the dangers to which [they] or

their agents subject others in using the automobiles on the public

highway[s],” and accordingly, “[t]he principles of the common law do
not permit [an automobile’s] owner . . . to authorize another to use

such instrumentality on the public highways without imposing

upon such owner liability for [the automobile’s] negligent use.” S.

Cotton Oil Co. v. Anderson, 86 So. 629, 632 (Fla. 1920) (quoting

Anderson v. S. Cotton Oil Co., 74 So. 975, 978 (Fla. 1917)).

The doctrine serves to hold financially responsible those who

originate the “dangers incident to the operation of automobiles” by

entrusting such dangerous instrumentalities to others. Id. (quoting

Anderson, 74 So. at 978); see Kraemer v. Gen. Motors Acceptance

Corp., 572 So. 2d 1363, 1365 (Fla. 1990). And in the decades since

we said the doctrine was the law of our State, the Legislature has

regulated who should be liable for injuries arising from the use of

motor vehicles, and to what extent. See ch. 99-225, § 28, Laws of

Fla. (capping liability for short-term lessors and owners who are

natural persons); ch. 86-229, § 3, Laws of Fla. (eliminating

vicarious liability for long-term automobile lessors); see also 49

U.S.C. § 30106(a)(1) (prohibiting states from imposing vicarious

liability on car rental companies). As the Legislature did its work,

we found that, under the circumstances presented in several cases

before us, persons having “an identifiable property interest in [such

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a] vehicle [including due to] . . . bailment,[ 1] rental, or lease of a

vehicle”—not just title owners—could be liable under the doctrine.

Aurbach v. Gallina, 753 So. 2d 60, 62-63 (Fla. 2000) (collecting

cases).

Here, the Second District Court of Appeal, having considered

the applicable statutes and our cases elaborating the dangerous

1. A bailment is “[a] delivery of personal property by one
person (the bailor) to another (the bailee) who holds the property for
a certain purpose, usu. under an express or implied-in-fact
contract.” Bailment, Black’s Law Dictionary (11th ed. 2019). A
bailment can arise in many circumstances. It can be formed
implicitly or expressly. Id. (compare a constructive bailment, which
“arises when the law imposes an obligation on a possessor of
personal property to return the property to its rightful owner,” with
a contractual bailment, where the “terms are specified in a
contract”). It can benefit one party or both. Id. (compare a
bailment for mutual benefit, which is one “from which both the
bailor and the bailee gain some tangible advantage,” with a
gratuitous bailment, where “the bailee receives no compensation”).
Any bailment involves the transfer of possession but not of title,
giving the bailee a temporary possessory interest in the transferred
property. 8 C.J.S. Bailments § 33 (2023) (“[W]hen a bailment
occurs, there is no transfer of ownership, and the bailee acquires
only a possessory interest in the property during the bailment, with
the bailor retaining legal and equitable title.”) (footnotes omitted).
But the type of bailment has traditionally dictated the standard of
care a bailee had to exercise in possessing the property. See
Fireman’s Fund Ins. Co. v. Dollar Sys., Inc., 699 So. 2d 1028, 1031
(Fla. 4th DCA 1997) (discussing the effect of the bailment type on
determining the standard of care).

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instrumentality doctrine, held that the doctrine did not support the

trial court’s entry of a judgment against one spouse, whom the jury

found to be a bailee of the car involved in an accident, when the

other held sole title to the car; their son was driving with the

permission of both parents when he injured someone. Lambert v.

Emerson, 304 So. 3d 364 (Fla. 2d DCA 2020). That holding

matters, for the petitioner ultimately received a net judgment of

$18,906,429.19—that is, $18,306,429.19 more than the maximum

allowed by statute against the car’s owner. 2

The Second District certified the following question of great

public importance:

UNDER THE DANGEROUS INSTRUMENTALITY
DOCTRINE, CAN ONE FAMILY MEMBER WHO IS A
BAILEE OF A CAR BE HELD VICARIOUSLY LIABLE
WHEN THE CAR’S ACKNOWLEDGED TITLE OWNER IS
ANOTHER FAMILY MEMBER WHO IS ALSO
VICARIOUSLY LIABLE UNDER THE DOCTRINE?[ 3]

Id. at 374. For the reasons we explain below, the answer is no, and

the Second District was correct to say so.

2. The current maximum liability for a person who owns a
vehicle under the circumstances presented here is $600,000. See
§ 324.021(9)(b)3., Fla. Stat. (2023).

3. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

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I

In January 2015, twenty-one-year-old Kyle Lambert was

driving home from dinner with his girlfriend when he hit

motorcyclist Bruce Emerson. Lambert, 304 So. 3d at 365-66.

Emerson suffered severe injuries, leaving him quadriplegic. Keith

Lambert, Kyle’s father, owned the 2011 Hyundai Sonata Kyle was

driving. The car was mainly driven by Kyle’s mother, Debbie

Lambert, although her name did not appear on its title.

Emerson sued Keith, Kyle, and Debbie Lambert for negligence.

Against Kyle Lambert, Emerson alleged negligence in operating the

car. Against Kyle’s parents, Emerson alleged vicarious liability for

Kyle’s negligent use of the car under the dangerous instrumentality

doctrine. Emerson claimed that Keith Lambert was vicariously

liable as the car’s titleholder, while Debbie Lambert was vicariously

liable as a bailee who had allowed Kyle to drive the car.

At trial, the jury heard testimony about how the car was

shared among the various members of the Lambert family. Keith

Lambert testified that, while his wife mainly used the car as her

“daily driver,” it was a family car—family members of driving age

were free simply to take an extra key and use the car as needed.

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Kyle Lambert testified that, on the day of the accident, he

understood that he had both his parents’ permission to use the car.

Keith Lambert testified that he was unsure if he spoke with Kyle

about using the car on that particular day, but that Kyle had his

general permission to use the car. Kyle had asked his mother to

borrow the car that evening, and Debbie Lambert said he could.

At the close of Emerson’s case, Debbie Lambert moved for a

directed verdict. She argued that she could not be liable under the

dangerous instrumentality doctrine because it did not support

holding family members vicariously liable as bailees. 4 The trial

court denied her motion. It concluded that our decision in Aurbach

left open the possibility that a family member with an identifiable

property interest in an automobile could be vicariously liable even if

another family member legally owned the vehicle. The trial court

submitted the matter of Debbie Lambert’s liability to the jury,

instructing them to determine whether she was a bailee and if she

had authorized Kyle’s use of the car on the night of the accident.

The jury instructions provided:

4. Debbie Lambert previously moved for summary judgment
on the same basis, but the trial court denied her motion.

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There is a preliminary issue for you to decide. That issue
is:
…
Whether Debbie Lambert was the bailee of the
vehicle driven by Kyle Lambert and whether Kyle Lambert
was operating the vehicle with the express or implied
consent of Debbie Lambert. A person who is a bailee of a
vehicle and who expressly or impliedly consents to
another’s use of it is responsible for its operation.
A bailee of a vehicle is one to whom the vehicle has
been furnished or delivered by its owner for a particular
purpose, with the understanding that it will be returned.
If the greater weight of the evidence does not
support the Plaintiff’s claim on this issue that Debbie
Lambert was the bailee of the vehicle being driven by Kyle
Lambert and that she expressly or impliedly consented to
Kyle Lambert’s use of the vehicle, then your verdict on
the claim of the Plaintiff should be for Debbie Lambert.
However, if the greater weight of the evidence
supports the claim of Plaintiff on this issue that Debbie
Lambert was the bailee of the vehicle being driven by Kyle
Lambert and that she expressly or impliedly consented to
Kyle Lambert’s use of the vehicle, then you shall decide
the other issues on Plaintiff’s claim.

The jury found Kyle Lambert seventy-five percent at fault for

the accident and Bruce Emerson twenty-five percent at fault.

Lambert, 304 So. 3d at 366. It also found that Debbie Lambert was

a bailee who consented to Kyle’s use of the car on the night of the

accident. It awarded damages to Emerson totaling $27,437,306.25.

Considering fault apportionment and medical and social security

disability payment setoffs, the parties agreed to a net judgment of

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$18,906,429.19. The parties also agreed to reduce Keith Lambert’s

judgment to $600,000, the statutory maximum under section

324.021(9)(b)3., Florida Statutes (2015). Id. at 366 n.4. The trial

court entered final judgment for $18,906,429.19 against Kyle and—

key to our work in this case—Debbie Lambert. Id. at 366-67.

Following the verdict, Debbie Lambert renewed her motion for

a directed verdict, and the Lamberts moved for a new trial related

to, among other things, alleged juror misconduct. The trial court

denied both motions. The Lamberts appealed both decisions to the

Second District Court of Appeal.

The Second District affirmed the denial of the motion for a new

trial without comment but reversed the trial court’s decision on

Debbie Lambert’s vicarious liability. The court accepted “the jury’s

determination that a bailment arose between [Keith and Debbie]

Lambert” without accepting the propriety of “how this jury was

instructed on the law of bailments.” Id. at 367. Then the court

marshaled our cases to “synthesize the current state of the

dangerous instrumentality doctrine”:

[I]f title owners of a car entrust their car to a family
member who, in turn, causes injury, the title owners may
be held vicariously liable for that tort. If a family member

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has an identifiable property interest in a car (whether a
bailment or some other recognized property interest) and
entrusts their car to another who, in turn, causes injury,
that family member can be held vicariously liable for the
tort if the title owner denies vicarious liability for that
entrustment. But we do not believe there is a sound
basis in the law to hold both the acknowledged title
owner and a family member bailee liable for the bailee’s
entrustment of a car under the dangerous
instrumentality doctrine.

Id. at 373 (emphasis and citations omitted).

On this basis, the Second District concluded that the trial

court erred in denying Debbie Lambert’s renewed motion for

directed verdict: “Though the jury determined that she was a bailee

of the Sonata . . . that is not a basis upon which vicarious liability

can be applied under the dangerous instrumentality doctrine since

[Keith] Lambert, the undisputed title owner, has also been found

vicariously liable for what is, essentially, the same entrustment of

the same vehicle.” Id. at 374.

So the Second District reversed the final judgment against

Debbie Lambert and remanded to the trial court with directions to

enter a judgment in accordance with its decision, leaving before us

the certified question in this case.

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II

Answering it requires us to say something about how a court

working with the common law—that is, the law as courts have said

it is in deciding cases 5—behaves in the presence of related

legislative action. For that is what we do in determining that the

Second District decided this case correctly. A straightforward

application of the relevant statutes and the dangerous

instrumentality doctrine in its original form tells us that liability

extends to Keith Lambert. The question becomes: Does it extend to

Debbie Lambert?

No, it does not. For as a matter of common law and statute, in

Florida, liability under the dangerous instrumentality doctrine in

automobile accident cases has stemmed from a concern that a car’s

true owner not escape responsibility for injuries that result from its

use. That concern is absent in this case. The vehicle’s owner, who

5. One great common law scholar, in a description
preordained to be cited by the courts of this State, said “it stands as
a monument slowly raised, like a coral reef, from the minute
accretions of past individuals, of whom each built upon the relics
which his predecessors left, and in his turn left a foundation upon
which his successors might work.” Learned Hand, Book Review, 35
Harv. L. Rev. 479, 479 (1922) (reviewing Benjamin N. Cardozo, The
Nature of the Judicial Process (1921)).

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by statute and common law is vicariously liable for Emerson’s

injuries, did not increase the number of people liable to Emerson

under the doctrine when he shared the car with his family

members.

A

Our decisions relevant to this case stem from the basic

common law negligence principle that, on the road as in general,

“all members of a civilised commonwealth are under a general duty

towards their neighbors to do them no hurt without lawful cause or

excuse. The precise extent of the duty, as well as the nature and

extent of the recognised exceptions, varies according to the nature

of the case.” Frederick Pollock, The Law of Torts: A Treatise on the

Principles of Obligations Arising from Civil Wrongs in the Common

Law 1 (6th ed. 1901). When we determine the extent of common

law duties, we “fix the dividing lines between those cases in which a

man is liable for harm which he has done, and those in which he is

not.” Oliver Wendell Holmes, Jr., The Common Law 79 (Dover

Publications 1991) (1881).

Before 1920, liability for automobile-related injuries in Florida

depended on an analysis of the defendant’s general common law

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duties to the injured party, the defendant’s breach of those duties,

and the plaintiff’s own negligence contributing to the injury, if any.

See Atl. Coast Line R. Co. v. Weir, 58 So. 641, 642 (Fla. 1912)

(noting that drivers had a duty to control their vehicles under “the

principles of the common law,” and failure to do so “[was]

negligence, and the consequences of negligence are governed by

applicable provisions and principles of law”); Louisville & N.R. Co. v.

English, 82 So. 819 (Fla. 1919) (applying general tort principles in

an action for automobile-related injuries); Groover v. Hammond, 75

So. 857 (Fla. 1917) (same); Atl. Coast Line Ry. v. Hobbs, 70 So. 939

(Fla. 1916) (same); Porter v. Jacksonville Elec. Co., 60 So. 188 (Fla.

1912) (same). 6

Then came Southern Cotton Oil Co. A company’s employee was

using its car on a personal errand when the employee negligently

injured the plaintiff. S. Cotton Oil Co., 86 So. at 636. The driver

6. Our cases addressing automobile-related injuries in the
early twentieth century often concerned collisions with railroad cars
at train crossings. See, e.g., Weir, 58 So. at 642. At the time,
statutes addressed liability in such situations by (1) shifting the
burden of presumption to railroad companies to show that “their
agents have exercised all ordinary and reasonable care and
diligence”; and (2) limiting recoverable damages based on
comparative negligence. See id.; §§ 3148, 3149, Gen. St. 1906.

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was concededly at fault; the issue was the company’s liability.

“This responsibility,” we said, “must be measured by the obligation

resting on the master or owner of an instrumentality that is

peculiarly dangerous in its operation, when he intrusts it to another

to operate on the public highways.” Id. at 631. Even though the

employee was attending to a purely personal matter outside the

scope of his employment, we concluded that the company was liable

for the employee’s negligent operation of its vehicle. Id. at 635 (“An

automobile being a dangerous machine, its owner should be held

responsible for the manner in which it is used; and his liability

should extend to its use by any one with his consent.” (quoting

Ingraham v. Stockamore, 118 N.Y.S. 399, 401 (N.Y. Sup. Ct. 1909))).

We drew on two well-settled principles: An owner of a dangerous

thing is strictly liable for its negligent operation, and a principal is

vicariously liable for the negligent conduct of an agent. See id. at

636 (“In intrusting the servant with this highly dangerous agency,

the master put it in the servant’s power to mismanage it, and as

long as it was in his custody or control the master was liable for any

injury which might be committed through his negligence.”).

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We also looked to what the Legislature had done. And in part

because “the Legislature regarded automobiles as dangerous

machines,” we turned from an approach, adopted in other

jurisdictions, that focused primarily or exclusively on the conduct of

drivers. 7 Id. at 634 (quoting Ingraham, 118 N.Y.S. at 400).

We announced this principle of liability:

[O]ne who authorizes and permits an instrumentality
that is peculiarly dangerous in its operation to be used
by another on the public highway is liable in damages for
injuries to third persons caused by the negligent
operation of such instrumentality on the highway by one
so authorized by the owner.

Id. at 638. 8

7. A century later, Florida stands alone among the states in
adhering to the dangerous instrumentality doctrine as a means of
holding an automobile owner responsible, under most
circumstances, for the negligent use of his or her vehicle by
another. See Kraemer, 572 So. 2d at 1365 n.2 (citing W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 73, at 524
(5th ed. 1984)).

8. Notably, because liability insurance for automobile drivers
was not yet mandatory when we first applied the dangerous
instrumentality doctrine to automobiles in Southern Cotton Oil Co.,
see chapter 23626, Laws of Florida (1947) (enacting Florida’s
financial responsibility law, which included motor vehicle insurance
coverage requirements for the first time); see also Jonathan L.
Alpert & Robert A. LeVine, Florida Practice Handbook Motor Vehicle
No-Fault Law, § 4-1 (1992) (“[t]he first Florida financial
responsibility law was adopted in 1947”), we reasoned that “the

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Though the dangerous instrumentality doctrine was premised

on a master’s ownership of the vehicle and its entrustment to a

servant, in subsequent cases over the decades, we found that the

doctrine’s “underlying theory” applied in the bailment 9 context,

when title ownership of the vehicle was removed from its actual

control on the road, or when the beneficial owner of the vehicle

stood in the shoes of the person with bare title to it. See Aurbach,

753 So. 2d at 62-63 (collecting cases); see generally Lynch v.

Walker, 31 So. 2d 268 (Fla. 1947) (tracing the judicial development

remedy of the injured party would in most cases be illusive” without
increasing liability for owners, Southern Cotton Oil Co., 86. So. at
632 (quoting Philadelphia & Reading Railroad Co. v. Derby, 55 U.S.
468, 487 (1852)).

9. At common law, bailments were not primarily a way to affix
liability for injuries; they instead emerged in the context of
possessory remedies—getting stuff back. Possession was
procedurally essential for a person to sue for a bailed thing that had
been wrongfully appropriated by a party outside the bailment. The
bailee, not the bailor, alone could sue for repossession. The bailor’s
only available action was against the bailee. Though a form of
action later arose for a bailor to seek repossession from the
appropriating party as the common law developed, bailees today
remain answerable to their respective bailors. See generally
Holmes, Jr., The Bailee at Common Law, in The Common Law,
supra, at 164-205 (surveying the development of the traditional law
of bailment); R. H. Helmholz, Bailment Theories and the Liability of
Bailees: The Elusive Uniform Standard of Reasonable Care, 41 U.
Kan. L. Rev. 97 (1992) (discussing the duties of a bailee).

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of the dangerous instrumentality doctrine), overruled on other

grounds by Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984).

In Herr v. Butler, the Court for the first time held liable an

owner of an automobile for injuries caused by the negligent driving

of a gratuitous bailee—that is, someone who borrowed the car for

free. 132 So. 815 (Fla. 1931). The owner had allowed his adult son

to borrow his car while visiting from out of state when the son

negligently caused an accident. Concluding that “this case comes

well within the rule” in Southern Cotton Oil Co., we explained that

an owner is liable even if he entrusts his automobile to another to

be operated solely for the latter’s benefit. Id. at 816.

We later applied Herr when we considered a commercial

bailment, holding a car rental agency liable for the negligent

operation by a driver who had rented its vehicle. Lynch, 31 So. 2d

at 271-72. We said: “When an owner authorizes and permits his

automobile to be used by another[,] he is liable in damages for

injuries to third persons caused by the negligent operation so

authorized by the owner.” Id. at 271; see Boggs v. Butler, 176 So.

174, 176 (Fla. 1937) (“Under the law of this state, if the owner once

gives his express or implied consent to another to operate his

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automobile, he is liable for the negligent operation of it no matter

where the driver goes, stops, or starts.”).

In a pair of cases arising from the same bailment for hire, we

found that the dangerous instrumentality doctrine supplied a basis

for holding both a bailor and its bailee liable. In Fleming v. Alter, we

found that a rental car business was liable for injuries caused by a

customer’s wife who had been driving a car, notwithstanding the

absence of any provision in the rental agreement for another

person’s use of the car. 69 So. 2d 185, 186 (Fla. 1953). And in

Frankel v. Fleming, 69 So. 2d 887 (Fla. 1954), we affirmed a

judgment against the man who had rented the car and allowed his

wife to drive it when she injured the plaintiff. “Proof of actual

ownership of the vehicle causing injury,” we said, “is not

indispensable to recovery, for the misfortune of the injured person

should not depend entirely on the repository of the legal title; nor is

recovery dependent upon perfection of title in a given person.” Id.

at 888 (citation omitted).

But neither did we recede from the basic connection between

ownership and liability. For in Metzel v. Robinson, we considered

the liability of an aunt who had financed and taken title to a vehicle

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for her nephew to use; the seller had objected to an eighteen-year-

old signing the financing paperwork. 102 So. 2d 385, 385 (Fla.

1958). The nephew made all car payments. The aunt insured the

vehicle in her name to comply with state law but had no further

involvement. We reasoned that “[the aunt] was still in a position to

exert some dominion and control over the vehicle.” Id. at 386. She

therefore maintained an ownership interest as a matter of law and

“could have been held liable for the accident.” Id.

In the following years, we reaffirmed the “non-delegable

nature” of ownership liability under the doctrine, starting with

Susco Car Rental System of Florida v. Leonard. 112 So. 2d 832, 836

(Fla. 1959). There, we determined that a rental agency was

financially responsible for the negligent operation of its vehicle by a

person not named in the rental contract, even though the individual

who had rented the car agreed in the contract to be the sole driver.

Id. at 834; see also Kraemer, 572 So. 2d at 1364-67 (finding a long-

term lessor and owner of an automobile liable for injuries incurred

when an unauthorized driver of a leased automobile struck another

with the car). “[W]hile the rule governing liability of an owner of a

dangerous agency who permits it to be used by another is based on

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consent,” we explained, “the essential authority or consent is simply

consent to the use or operation of such an instrumentality beyond

his own immediate control.” Leonard, 112 So. 2d at 837.

More recently, in Aurbach, we clarified that, without

ownership, the right to exercise “some degree of dominion and

control” over a vehicle does not necessarily bring about vicarious

liability under the doctrine. 753 So. 2d at 65. In Aurbach, parents

bought and maintained a car for their daughters to use; the car was

titled exclusively in the mother’s name. One of the daughters, with

her mother’s permission to use the car, negligently caused an

accident. Both the mother and daughter conceded liability: the

daughter as the operator and the mother as the titleholder.

Although the father did not hold any property interest in the car,

the jury specially found that he “had the right to control the

vehicle.” Id. at 65. But such “a general right to control the

operation or use of the vehicle,” we explained, was familial alone

and thus insufficient to give rise to vicarious liability under the

doctrine. Id. at 62.

We are left with an enduring principle of the common law that

liability under the dangerous instrumentality doctrine “will

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generally flow from legal title,” id. at 66, and while persons with

other property interests may be vicariously liable, the number of

people liable under the doctrine is not multiplied every time a

vehicle is shared. Those who “originate[] the danger by entrusting

the automobile to another,” id. at 62 (quoting Kraemer, 572 So. 2d

at 1365) (emphasis added), whether directly or by “authoriz[ing]

other[s],” remain principally liable, id. at 63.

B

Legislative activity has played a cardinal role in the dangerous

instrumentality doctrine’s development. Since its inception, the

doctrine has had as its touchstone the Legislature’s power to

regulate the use of automobiles. See S. Cotton Oil Co., 86 So. at

634. And while the courts were at work over the proceeding

decades, so too was the Legislature. Along with “vastly increas[ing]”

the scope and complexity of vehicle operational regulations, the

Legislature enacted “numerous provisions to assure financial

responsibility of owners . . . based on the assumption that an owner

cannot deliver a vehicle into the hands of another without

assuming, or continuing, his full responsibility to the public.”

Leonard, 112 So. 2d at 837 (citing ch. 324, Fla. Stat. (1955)).

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Eventually, however, the Legislature began limiting vicarious

liability under the doctrine. In 1986, it enacted section

324.021(9)(b), Florida Statutes (1986), to shield long-term motor

vehicle lessors from vicarious liability under the doctrine:

[T]he lessor, under an agreement to lease a motor vehicle
for one year or longer . . . shall not be deemed the owner
of said motor vehicle for the purpose of determining
financial responsibility for the operation of said motor
vehicle or for the acts of the operator in connection
therewith.

Ch. 86-229, § 3, Laws of Fla. And in 1999, the Legislature added

monetary caps on recovery for (1) short-term motor vehicle lessors

“under an agreement to rent or lease a motor vehicle for a period of

less than 1 year” and (2) “owner[s] who [are] natural person[s] and

loan[] a motor vehicle to any permissive user,” chapter 99-225,

section 28, Laws of Florida, if they have satisfied “the requisite

minimum insurance coverage specified by the statute,” Aetna Cas.

& Sur. Co. v. Huntington Nat’l Bank, 609 So. 2d 1315, 1317 (Fla.

1992). 10

10. The statutory provisions relating to short-term lessors and
owners were “added by the Legislature in 1999 as part of a tort
reform package” known as the Tort Reform Act. Vargas v. Enter.
Leasing Co., 60 So. 3d 1037, 1041 (Fla. 2011); see generally George
N. Meros, Jr. & Chanta Hundley, Florida’s Tort Reform Act: Keeping

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Section 324.021(9)(b) limits liability against certain non-

operators, including vehicle owners, who are vicariously liable

under the dangerous instrumentality doctrine. Ch. 99-225, § 28,

Laws of Fla. It does not, however, codify the existence of vicarious

liability or the right to recover against those liable under the

doctrine. See Abdala v. World Omni Leasing, Inc., 583 So. 2d 330,

332 (Fla. 1991) (“There is no statutory right to sue a long-term

lessor of an automobile for damages an individual suffers as a

result of the operation of that automobile.”).

The statute defines a vehicle’s owner as “[a] person who holds

the legal title of a motor vehicle.” § 324.021(9)(a), Fla. Stat. (2015).

Specifically discussing the monetary cap, the statute reads:

The owner who is a natural person and loans a motor
vehicle to any permissive user shall be liable for the
operation of the vehicle or the acts of the operator in
connection therewith only up to $100,000 per person and
up to $300,000 per incident for bodily injury and up to
$50,000 for property damage.

Faith with the Promise of Hoffman v. Jones, 27 Fla. St. U. L. Rev.
461, 483-85 (2000) (discussing vicarious liability of automobile
owners and lessors under the Tort Reform Act). Congress would
later further limit vicarious liability under the doctrine for those
“engaged in the trade or business of renting or leasing motor
vehicles” through the Graves Amendment. 49 U.S.C. § 30106(a)(1)
(2006); see Vargas, 60 So. 3d at 1041-42.

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§ 324.021(9)(b)3. If the negligent operator is uninsured or has

subpar insurance (insurance with limits below $500,000 combined

property damage and bodily injury liability), then the owner can be

liable for “up to an additional $500,000” for “economic damages

only arising out of the use of the motor vehicle.” Id. Essentially,

the statute prevents an automobile owner who was not directly at

fault for causing an injury from being treated the same as the

operator who caused the injury.

The Legislature, in enacting section 324.021(9)(b), directly

addressed compensation under the dangerous instrumentality

doctrine, laying out protections for individuals who, unlike the

negligent operator, were only indirectly responsible for causing the

harm. See Christensen v. Bowen, 140 So. 3d 498, 504-05 (Fla.

2014) (“[T]he Legislature has developed a system whereby the rights

and responsibilities of owners of motor vehicles are both assigned

and dependent upon the existence of legal title.”). All the while, our

courts have continued applying the doctrine congruently with the

Legislature’s work. See, e.g., id. at 502, 504 (explaining that the

Court’s application of the beneficial ownership exception, also

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known as the “bare legal title” exception, is “consistent with

Florida’s statutory scheme, in that vehicle ownership is determined

through legal title” (citing § 324.021(9)(a), Fla. Stat. (2013)));

Aurbach, 753 So. 2d at 65-66 (declining to apply the dangerous

instrumentality doctrine absent an identifiable property interest

and noting the lack of any supporting statutory authority).

III

The dangerous instrumentality doctrine remains “premised

upon the theory that the one who originates the danger by

entrusting the automobile to another is in the best position to make

certain that there will be adequate resources with which to pay the

damages caused by its negligent operation.” Kraemer, 572 So. 2d at

1365; see S. Cotton Oil Co., 86 So. at 636. Because Keith Lambert

originated the danger at issue here by giving Kyle blanket

permission to use the car, it is he, and not Debbie Lambert, who,

under the dangerous instrumentality doctrine, is in the best

position to face Emerson’s claim for damages. That is the teaching

of our cases in light of the applicable statutes.

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A

As long as there has been a dangerous instrumentality

doctrine, we have described as its “underlying rationale” the idea

that a vehicle owner who gives control of the thing to another driver

“commits himself or herself to the judgment of that driver and

accepts the potential liability for his or her torts.” Christensen, 140

So. 3d at 501; see S. Cotton Oil Co., 86 So. at 632 (“[T]he master

cannot shift the responsibility connected with the custody of such

[dangerous] instruments to the servant to whom they have been

intrusted, and escape liability therefor.” (quoting Barmore v.

Vicksburg, S. & P. Ry. Co., 38 So. 210, 214 (Miss. 1905))); Hertz

Corp. v. Jackson, 617 So. 2d 1051, 1053 (Fla. 1993) (“[A]n owner

who gives authority to another to operate the owner’s vehicle, by

either express or implied consent, has a nondelegable obligation to

ensure that the vehicle is operated properly.”); Chandler v. Geico

Indem. Co., 78 So. 3d 1293, 1297 (Fla. 2011) (noting that a vehicle

owner is liable for injuries caused by a third party’s negligent use,

even if that use exceeded the use authorized by the owner); cf.

Castillo v. Bickley, 363 So. 2d 792, 793 (Fla. 1978) (holding that an

owner is not liable under the dangerous instrumentality doctrine for

- 25 -
injuries caused by a repairman because the owner “rarely has

authority and control over the operation or use of the vehicle when

it is turned over to a firm in the business of service and repair”).

Indeed, we concluded in Christensen that a co-owner who did

not have actual possession of or access to his car could still be held

vicariously liable for the damage it causes. 140 So. 3d at 506. 11 To

reach this conclusion, we reasoned that when the title holder

knowingly titled the car in his name, he gained a legal right. This

right allowed him to “encumber, sell, or take possession” of the car.

Id. at 506. That right was his, whether he used it or not. With the

legal right to control property comes the legal responsibility for

harm caused by that property. The co-owner thus retained

sufficient control over the car, as a titleholder, to remain liable

under the doctrine for any injury it caused.

11. The facts of Christensen, 140 So. 3d at 500, are as
follows. A husband and wife bought an automobile as joint
titleholders. They later divorced, but the husband never had his
name removed from the title. At no point did the husband possess
or have access to the vehicle. Around two years later, the former
wife struck a pedestrian while driving the vehicle under the
influence of alcohol and the pedestrian’s estate sought to hold the
former husband liable under the dangerous instrumentality
doctrine.

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A bailment, especially a gratuitous one of the kind at issue

here, does not come with the same rights and responsibilities that

attend title ownership. 12 See Aurbach, 753 So. 2d at 63 (“Legal title

remains the most common basis for imposing vicarious liability

under the dangerous instrumentality doctrine.”). While a

titleholder’s control and dominion over a vehicle exists whether or

12. The bailment that the jury found to exist between Keith
and Debbie Lambert is not a commercial bailment; it is an implied
gratuitous bailment between two private individuals—who happen,
not insignificantly, to be members of a family. See Bailment,
Black’s Law Dictionary (11th ed. 2019) (defining “gratuitous
bailment” as “[a] bailment for which the bailee receives no
compensation, as when one borrows a friend’s car”). Courts have
held bailees vicariously liable under the doctrine in the context of
commercial bailments. See, e.g., Frankel, 69 So. 2d at 888 (Frankel
rented car from a rental company); Adams v. Bell Partners, Inc., 138
So. 3d 1054, 1058 (Fla. 4th DCA 2014) (company rented car for
employee). In the Fleming cases, the car’s owner and bailor gave
rights to his bailee in an arm’s-length agreement, governed by a
written contract, that gave the parties a way to provide for how risk
would be borne among them, and in exchange for what economic
consideration—for example, by agreeing to an indemnity or
adjusting the price. Frankel, 69 So. 2d at 888; Fleming, 69 So. 2d
at 186; see also Leonard, 112 So. 2d at 837 (We have said, and
reiterate, that “an owner cannot deliver a vehicle into the hands of
another without assuming, or continuing, his full responsibility to
the public.”) (footnote omitted). Keith and Debbie Lambert,
husband and wife, have a different relationship. Keith gave Debbie
(and their son Kyle) permission to use the car, gratuitously and
without a contract setting out its terms, because they are family.

- 27 -
not possession is maintained, Christensen, 140 So. 3d at 506, a

bailee’s control over a vehicle relies on possession alone, Metzel,

102 So. 2d at 386.

In our case, it is true Kyle had Debbie Lambert’s permission to

use the car. That fact is immaterial to our analysis, however, as

Keith Lambert—the titleholder—gave them both (and indeed all

family members who could drive) the same permission to use the

car. 13 Keith Lambert was found vicariously liable to the extent

allowed by statute. Under these facts, we cannot agree that the

dangerous instrumentality doctrine makes Debbie Lambert also

vicariously liable.

In concluding as much, we sail in the wake of our decision in

Aurbach, and find that to hold both Keith and Debbie Lambert

liable “would be an improper extension of the doctrine.” 753 So. 2d

at 66. It would indeed extend the doctrine past its breaking point,

yielding an arbitrary and impractical rule under which liability

would be determined not by evaluating the vehicle’s ultimate

13. As the Second District did below, we accept without
endorsing the jury’s determination that a bailment arose between
Keith and Debbie Lambert. Lambert, 304 So. 3d at 367.

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ownership and control—the doctrine’s traditional focus—but on

examining family relationships to identify bailments.

We would have a different case if Keith Lambert had contested

consent to Kyle’s use of the car. Consider Stanford v. Chagnon, 86

So. 3d 565 (Fla. 2d DCA 2012), where the titleholder disclaimed

liability when his stepdaughter negligently operated his truck and

caused an accident. The titleholder stated that he had not given his

stepdaughter permission to use the truck the day of the accident,

nor had he given the stepdaughter blanket permission to use the

truck at her leisure. In fact, the stepdaughter admitted that she did

not have her stepfather’s permission to drive the vehicle. The

stepdaughter had received the car keys from her mother, the

titleholder’s wife, who potentially had blanket permission to use the

car. Under these circumstances, it is conceivable that the mother’s

authorization, through bailment, did empower the negligent

operator. 14

14. In Stanford, the liability of either parent was not resolved
because the issue had been appealed from a grant of summary
judgment. 86 So. 3d at 566. The Second District held that the trial
court erred by granting summary judgment for the father because it
remained in dispute if his wife “is a bailee of the motor vehicle[,] . . .
[because] then it is possible that she is liable in this context for her

- 29 -
B

The Legislature has acted to limit liability under the doctrine

so that owners and lessors are not as financially responsible as the

permissive user who caused the harm. See § 324.021(9)(b);

Kraemer, 572 So. 2d at 1367 (noting that the Legislature

“recognized” the reach of vicarious liability under the doctrine and

“enact[ed] . . . section 324.021(9)(b) . . . to provide relief”). There is

no basis to contravene the financial liability regime in section

324.021(9)(b), or to permit its evasion through artful pleading when

more than one family member has the right to direct the use of an

automobile. Yet that is exactly what we would do, were we to

answer the certified question in the affirmative: we would allow an

end-run around section 324.021(9)(b) anytime family members

shared a car, even if the automobile’s titleholder were found

vicariously liable to the maximum extent provided by statute.

“[A] statute is not an alien intruder in the house of the

common law, but a guest to be welcomed and made at home there

bailment to her daughter and that her husband is liable in turn as
her bailor.” Id. at 568.

- 30 -
as a new and powerful aid in the accomplishment of its appointed

task of accommodating the law to social needs.” Harlan F. Stone,

The Common Law in the United States, 50 Harv. L. Rev. 4, 15 (1936).

In the face of such legislative action defining the rights and duties

of tortfeasors and victims in this area of the law, we decline to

“expand liability in a field in which the legislature ha[s] so expressly

chosen to restrict [it].” 15 Kitchen v. K-Mart Corp., 697 So. 2d 1200,

1203 (Fla. 1997); see Bankston v. Brennan, 507 So. 2d 1385, 1387

(Fla. 1987) (“[W]hen the legislature has actively entered a particular

field and has clearly indicated its ability to deal with such a policy

question, the more prudent course is for this Court to defer to the

legislative branch.”).

15. The Legislature did not repeal or curtail the dangerous
instrumentality doctrine when it amended section 324.021, Florida
Statutes. See Thornber v. City of Ft. Walton Beach, 568 So. 2d 914,
918 (Fla. 1990) (“The presumption is that no change in the common
law is intended unless the statute is explicit and clear in that
regard. Unless a statute unequivocally states that it changes the
common law, or is so repugnant to [it] that the two cannot coexist,
the statute will not be held to have changed [it].”) (citations
omitted). We hold that no expansion of the doctrine is warranted,
here—not that it has been abrogated.

- 31 -
IV

The answer to the certified question is no. We affirm the

decision of the Second District Court of Appeal to the extent it is

consistent with this opinion.

It is so ordered.

MUÑIZ, C.J., and CANADY, GROSSHANS, and FRANCIS, JJ.,
concur.
LABARGA, J., dissents with an opinion.
SASSO, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., dissenting.

The majority holds that under Florida’s dangerous

instrumentality doctrine, one family member who is a bailee of a car

cannot be held vicariously liable when the car’s acknowledged title

owner is another family member who is also vicariously liable under

the doctrine. Because I believe that this interpretation of bailee

vicarious liability is too narrow and will lead to inadequate awards

of damages for severe injuries, I respectfully dissent.

The essence of the dangerous instrumentality doctrine is to

attach vicarious liability to a person who, having dominion over the

instrumentality, has discretion as to its use. In Southern Cotton Oil

- 32 -
Co. v. Anderson, we explained that the doctrine derives from the

“old and well[-]settled principle” that “certain things are a source of

extraordinary risk, and a man who exposes his neighbor to such a

risk is held, although his act is not of itself wrongful, to insure his

neighbor against any consequent harm not due to some cause

beyond human foresight.” 86 So. 629, 631 (Fla. 1920) (quoting

Pollock on Torts at 506). Thus, liability under the dangerous

instrumentality doctrine turns on the act of entrustment rather

than on ownership. As the majority recognizes, we have held that

various types of possessory interests give rise to dangerous

instrumentality vicarious liability.

The majority, however, unduly places vicarious liability on a

conceding titleholder when that titleholder and the bailee both

entrusted the car to the bailee-tortfeasor. Subject to few

exceptions, vicarious liability requires only (1) a possessory interest

in the car (such as ownership, bailment, rental, or lease) and (2) the

ability to exercise dominion over the car. Aurbach v. Gallina, 753

So. 2d 60, 62-64 (Fla. 2000). In Aurbach, as pointed out by the

majority, “we clarified that, without ownership, the right to exercise

‘some degree of dominion and control’ over a vehicle does not

- 33 -
necessarily bring about vicarious liability under the doctrine.”

Majority op. at 19 (quoting Aurbach, 753 So. 2d at 65). However,

our holding also concluded that “[i]n the absence of common law or

statutory authority, . . . a parent who holds 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.” See

Aurbach, 753 So. 2d at 66 (emphasis added). Thus, we envisioned

the potential vicarious liability of a parent who has an identifiable

property interest in a motor vehicle where the parent entrusts that

vehicle to a child, and the child negligently operates the vehicle

causing injury. The relevant inquiry is who beyond the titleholder

had a possessory interest in the car and dominion over the car such

that they could make the discretionary decision to entrust the car

to the bailee-tortfeasor.

In the present case, that person was Debbie Lambert, who,

unlike the father in Aurbach, satisfies both requirements for

vicarious liability to attach under the doctrine. See id. at 65-66.

She had a possessory interest in the car because she was a bailee,

and she had dominion over the car because it was her “daily

- 34 -
driver.” Before the accident, she exercised her dominion over the

car by consciously making the discretionary decision to entrust the

car to her son. Thus, it is appropriate to hold her vicariously liable

under the dangerous instrumentality doctrine, and the certified

question should be answered in the affirmative.

Answering the certified question in the affirmative is also

consistent with the doctrine’s aim “to provide greater financial

responsibility to pay for the carnage on our roads.” Kraemer v. Gen.

Motors Acceptance Corp., 572 So. 2d 1363, 1365 (Fla. 1990).

Allowing recourse against two defendants instead of one aligns with

that goal, especially when the plaintiff suffers severe injuries like

those in the present case. Precluding vicarious liability for family

member bailees when the titleholder concedes vicarious liability will

make the remedy “illusive,” or at most inadequate, in many cases.

See S. Cotton Oil Co., 86 So. at 632.

While limiting liability within reason, section 324.021(9)(b),

Florida Statutes, can work with the common law to assign vicarious

liability to all those with a property interest in a car who are

indirectly responsible for injuries arising from the negligent

operation of the car. The supposed impracticality of examining

- 35 -
family relationships does not justify a different result. For the

above reasons, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal
Certified Great Public Importance/Direct Conflict of Decisions

Second District - Case Nos. 2D18-1872 & 2D18-4103

(Pasco County)

John S. Mills of The Mills Firm, P.A., Jacksonville, Florida, and
Jonathan Martin of The Mills Firm, P.A., Tallahassee, Florida,

for Petitioner

Sarah Lahlou-Amine and Chris W. Altenbernd of Banker Lopez
Gassler P.A., Tampa, Florida,

for Respondents

Bryan S. Gowdy, Jacksonville, Florida,

for Amicus Curiae Florida Justice Association

Elaine D. Walter of Boyd Richards Parker & Colonnelli, P.L., Miami,
Florida, and Nicole R. Ramirez of HD Law Partners, Tampa, Florida,

for Amicus Curiae Florida Defense Lawyers Association

- 36 -