Commercial Carrier Corp. v. S. J. G. Corp., A-C

• Decision Date: 23 December 1981
• Docket Number: A-C,No. 81-6,81-6
• Citation: 409 So.2d 50
• Court: Florida District Court of Appeals
• Parties: COMMERCIAL CARRIER CORPORATION, Appellant, v. S. J. G. CORPORATION, d/b/a Holiday Rent-ar, Douglas Kenney & JackStrickland, Appellees.

Page 50

409 So.2d 50

COMMERCIAL CARRIER CORPORATION, Appellant, v. S. J. G. CORPORATION, d/b/a Holiday Rent-A-Car, Douglas Kenney & JackStrickland, Appellees.

No. 81-6.

District Court of Appeal of Florida, Second District.

Dec. 23, 1981.

Rehearing Denied Jan. 29, 1982.

Michael S. Rywant of Shackleford, Farrior, Stallings & Evans, Tampa, for appellant.

Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellees.

BOARDMAN, Acting Chief Judge.

Commercial Carrier Corporation, plaintiff in the trial court, appeals a final judgment awarding judgment on the pleadings in favor of appellee S.J.G. Corporation, one of the defendants. We affirm.

The allegations in appellant's complaint, which we take to be true for the purposes of this appeal, are that defendant/appellee Douglas Kenney rented a car from S.J.G. Corporation and left it unattended with the keys in the ignition, and that defendant/appellee Jack Strickland stole it and subsequently negligently collided with a truck owned by appellant.

Appellant seeks to hold S.J.G. Corporation liable for its damages under either of two theories.

The first theory is negligence per se, predicated on Section 316.1975, Florida Statutes (1979), which provides in pertinent part: "No person driving or in charge of any motor vehicle except a licensed delivery truck or other delivery vehicle while making deliveries, shall permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key." Because statutes such as this are deemed to impose a standard of strict liability and violation of such a statute is considered negligence per se, de Jesus v. Seaboard Coast Line R. Co., 281 So.2d 198 (Fla.1973), violation of this statute by a car rental agency was held to give rise to a cause of action against the rental agency in Vining v. Avis Rent-a-Car Systems, Inc., 354 So.2d 54 (Fla.1977); however, we are not willing to extend the Vining doctrine.

In Vining, the rental agency was not only the owner of the vehicle, but the violator of the statute as well. Here, in contrast, it was Kenney, S.J.G. Corporation's lessee, who committed the negligent act which constituted the statutory violation. We are not aware of any case, either in Florida or in any other state, and none has been cited to us by appellant, which has imposed liability on an automobile owner under these circumstances, and we see no justification for doing so here. While Kenney may well be liable to appellant by virtue of his alleged violation of section 316.1975, S.J.G. Corporation is not.

In Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976), our supreme court recognized the general rule that "though a person's negligence is a cause in fact of another's loss, he will not be liable if an act unforeseeable to him and independent of his negligence intervenes to also cause the loss." Id. at 177. However, the court held that that foreseeability which is essential to create a duty in negligence may exist if a criminal act is sufficiently foreseeable that a reasonable man would realize that the criminal act in conjunction with the person's negligence will result in a loss.

On the other hand, in Sykes v. Babijuice Corp., 63 So.2d 65 (Fla.1953), the corporate owner was held not liable for damages arising out of the use on the highway of one of its trucks by the night watchman, who had been expressly instructed not to drive the company's trucks off the premises. The court noted that there was no evidence that the watchman had ever violated these instructions before.

We find Nicholas and Sykes instructive. We believe it foreseeable to anyone old enough to obtain a driver's license that his car will very likely be stolen if he leaves it standing unlocked and unattended with the keys in the ignition. We do not consider it reasonably foreseeable by S.J.G. Corporation that Kenney, its lessee, would be likely to leave the keys in the car. There is no allegation that S.J.G. Corporation had knowledge that Kenney had done this before.

The alternative theory under which appellant seeks to hold S.J.G. Corporation liable is the dangerous instrumentality doctrine. This doctrine was adopted in Florida in the early case of Southern Cotton Oil v. Anderson, 80 Fla. 441, 86 So. 629 (Fla.1920), which held that an owner who entrusts a...