Canull v. Hodges

Decision Date15 August 1991
Docket NumberNo. 90-2265,90-2265
Parties16 Fla. L. Weekly D2196 Gary Harless CANULL, Appellant, v. Jessie S. HODGES, et al., Appellees.
CourtFlorida District Court of Appeals

James F. McKenzie of Millsap & Soloway, Pensacola, for appellant.

Edward I. Cutter and Jeffrey P. Gill of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellees.

CAWTHON, Senior Judge.

Gary Harless Canull, the plaintiff in the trial court, appeals from a summary final judgment entered in favor of Leasing Service Corporation (Leasing Service). Neither the relevant facts nor how the issues should be framed are in dispute.

Leasing Service financed the purchase of a road grader by Ingram Enterprises, Inc. (Ingram), Canull's employer, and Canull alleges he was injured on an airport construction site by a fellow employee's negligent operation of the road grader. It is not alleged that Leasing Service was negligent.

The issues are whether or not Leasing Service should be deemed the owner of the road grader, and if so, whether or not the road grader is a dangerous instrumentality under Florida law.

Leasing Service supported its motion for summary judgment with two affidavits. In one, it alleged that the road grader is not required to be licensed with the Florida Department of Motor Vehicles, nor does it carry a license plate; it is not primarily designed to be operated on roads, or to be operated at a speed exceeding 35 miles per hour; and it is not used to transport persons or property. Its primary use, Leasing Service claims, is to level or maintain off-road surfaces.

In the other affidavit, Leasing Service maintains that it neither sells nor uses construction equipment, that Ingram negotiated directly with Tractor & Equipment Company to acquire a road grader, and that it did not participate in the negotiation. Leasing Service notes that Ingram made a down payment on the road grader directly to the company, and entered into a 60-month lease agreement on September 11, 1986 with Leasing Service, which financed the balance of the purchase price. The next day, the company shipped the road grader to Ingram directly. Leasing Service claims that it never possessed the equipment, and intended that Ingram would purchase the road grader at the end of the lease. Canull served no opposing affidavit.

As to the issue of ownership, we agree with Canull that Leasing Service was the owner of the road grader for the purpose of determining liability if the grader is determined to be a dangerous instrumentality. See Kottmeier v. General Motors Acceptance Corp., 575 So.2d 1293 (Fla.1991); Kraemer v. General Motors Acceptance Corp., 572 So.2d 1363 (Fla.1990). In Kraemer, Michael Green entered into an agreement with General Motors Acceptance Corporation (GMAC) to lease a car. Green later loaned the car to Calvin Gary, who fatally struck another person with the car. At the time of the accident, Green was five months' delinquent on rent payments, and the liability insurance had lapsed for nonpayment.

GMAC sought declaratory relief, claiming that it was not liable for the fatality under the dangerous instrumentality doctrine because it was not the beneficial owner under the lease. The lease provided that Green had an option to purchase at the end of the four-year term. He was responsible for maintaining the car, and obtaining the tag, registration, and liability insurance on the car. The court concluded that these were duties imposed on Green, rather than rights of beneficial ownership. It added that GMAC held more than naked legal title under the lease. For instance, GMAC retained the right to reacquire possession once Green defaulted on payments. Moreover, the lease prohibited the operation of the car by certain drivers, restricted the geographic area in which the car could be operated, prohibited certain uses, and restricted installation of equipment on the car. Finally, the lease expressly declared that GMAC remained the owner of the car, and that the lease would be considered a true lease for federal income tax purposes. Under the circumstances, GMAC could be held liable for Gary's negligence under the dangerous instrumentality doctrine.

We find that many of the conditions relied on by the court in Kraemer pertain to the instant lease agreement. Leasing Service expressly limited Ingram's use of the road grader. Without prior written consent of Leasing Service, Ingram was prohibited from removing the road grader from its specified address, from making alterations, additions, or improvements, and from disposing of or permitting it to be used by anyone other than employees of Leasing Service or Ingram. Should Ingram fail to pay rent, Leasing Service was permitted to take possession of the road grader without notice. The lease expressly declared that the road grader shall remain the property of Leasing Service, and that Ingram's interest was that of a lessee only. For these reasons, we hold that Leasing Service was an owner of the road grader and if it is a dangerous instrumentality, Leasing Service would be held accountable for its negligent operation by a third party.

The dangerous instrumentality doctrine traces its genesis to the law of master and servant, and principal and agent. The master who entrusts a servant with a dangerous agency, such as fire, flood, water, poisons, and loaded firearms, locomotives, and street cars, is liable for any injury occasioned by its negligent use. Thomas v. Atlantic Assocs., Inc., 226 So.2d 100, 102 (Fla.1969). The court expressed the policy for that rule in the context of a negligently operated automobile:

The principles of common law do not permit the owner of an instrumentality that is not dangerous per se, but is peculiarly dangerous in its operation, to authorize another to use such instrumentality on the public highways without...

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5 cases
  • Newton v. Caterpillar Fin. Servs. Corp.
    • United States
    • United States State Supreme Court of Florida
    • September 27, 2018 See N. Trust Bank of Fla., N.A. v. Constr. Equip. Int'l , 587 So.2d 502, 504 (Fla. 3d DCA 1991) ; cf. Canull v. Hodges , 584 So.2d 1095, 1097 (Fla. 1st DCA 1991). Newton may not have been "a member of the unsuspecting public," Newton 209 So.3d at 616, but his accident occurred on a p......
  • Rippy v. Shepard
    • United States
    • United States State Supreme Court of Florida
    • January 19, 2012
    ...standards that courts may apply when determining whether an instrumentality is a dangerous instrumentality. See Canull v. Hodges, 584 So.2d 1095, 1097 (Fla. 1st DCA 1991) (“The criteria used by the court in the two opinions in the Southern Cotton Oil cases have been selectively abandoned or......
  • Rippy v. Shepard
    • United States
    • Court of Appeal of Florida (US)
    • August 6, 2009
    ...The dangerous instrumentality doctrine finds its roots in the law of master and servant, and principal and agent. Canull v. Hodges, 584 So.2d 1095, 1097 (Fla. 1st DCA 1991). "The master who entrusts a servant with a dangerous agency ... is liable for any injury occasioned by its negligent u......
  • Newton v. Caterpillar Fin. Servs. Corp.
    • United States
    • Court of Appeal of Florida (US)
    • December 14, 2016
    ..., 559 So.2d at 108 (considering forklift involved in accident with a motor vehicle on public highway), with Canull v. Hodges , 584 So.2d 1095, 1097 (Fla. 1st DCA 1991) ("The road grader we are asked to classify as a dangerous instrumentality was not licensed or regulated and was operating o......
  • Request a trial to view additional results

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