Conklin v. Carroll

• Decision Date: 14 January 2004
• Docket Number: No. 2D02-2351.,2D02-2351.
• Citation: 865 So.2d 597
• Parties: Ronald Lee CONKLIN, Jr., Appellant, v. Timothy D. CARROLL and Steven M. Carroll, individually, and d/b/a Steven M. Carroll Painting, Appellees.
• Court: Florida District Court of Appeals

865 So.2d 597

Ronald Lee CONKLIN, Jr., Appellant, v. Timothy D. CARROLL and Steven M. Carroll, individually, and d/b/a Steven M. Carroll Painting, Appellees.

No. 2D02-2351.

District Court of Appeal of Florida, Second District.

January 14, 2004.

Rehearing Denied February 17, 2004.

Lisha Bowen and Angela E. Rodante of Swope Law Group, P.A., Tampa, for Appellant.

John W. Boult of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Appellees.

KELLY, Judge.

Ronald Lee Conklin, Jr., was injured when the car he was driving was hit by a truck driven by Timothy Carroll and owned by Timothy's brother, Steven Carroll. Conklin sued the Carrolls alleging that Timothy Carroll's negligent operation of the truck caused the accident and that Steven Carroll, individually and d/b/a Steven M. Carroll Painting, were vicariously liable under the dangerous instrumentality doctrine. The trial court entered summary judgment in favor of Steven Carroll individually and d/b/a Steven M. Carroll Painting, finding that it was undisputed that at the time of the accident, Timothy Carroll was operating the truck without Steven Carroll's consent. The trial court also denied Conklin's request to amend his complaint to add a claim for negligence against Steven Carroll. We conclude that the existence of a genuine issue of material fact precluded summary judgment and that the trial court abused its discretion when it refused to let Conklin amend his complaint.

Under the dangerous instrumentality doctrine, an 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 safely. Hertz Corp. v. Jackson, 617 So.2d 1051 (Fla. 1993). Knowledge and consent are essential elements that must be proven before the owner can be subjected to liability for damages proximately caused by the driver's negligence. Tribbitt v. Crown Contractors, Inc., 513 So.2d 1084 (Fla. 1st DCA 1987).

The evidence before the trial court at the summary judgment hearing established that Timothy Carroll was employed by his brother's painting business and resided with Steven Carroll and his wife. Steven Carroll had given his brother permission to drive the truck but had told him that he was only to use it in connection with his work for the painting business. The truck was kept at the home and the keys were hung on a hook in the kitchen. There was also evidence that on the night of the accident Steven Carroll was at home and awake when Timothy Carroll left with the truck. After reviewing this evidence, the trial court entered summary judgment in favor of the Carrolls concluding that it was undisputed that Timothy Carroll did not have consent to drive the truck on the night of the accident.

In Susco Car Rental System of Florida v. Leonard, 112 So.2d 832, 837 (Fla.1959), the court explained that "while the rule governing liability of an owner of a dangerous agency who permits it to be used by another is based on consent, the essential authority or consent is simply consent to the use or operation of such an instrumentality beyond his own immediate control." When an owner has consented to the use of his vehicle beyond his immediate control,

only a breach of custody amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse. The validity or effect of restrictions on such use, as between the parties, is a matter totally unrelated to the liabilities imposed by law upon one who owns and places in circulation an instrumentality of this nature.

Id. at 835-36. We believe this case is controlled by Susco because the facts before the trial court could support a finding that Timothy Carroll had consent to drive the truck with restrictions. Thus, the issue becomes whether Timothy Carroll's violation of the restrictions amounts to a species of conversion or theft that will relieve Steven Carroll of responsibility.

The cases Steven Carroll relies on are inapplicable because they involve situations where the owner of the car or truck explicitly directed the negligent driver not to use the car at any time, see, e.g., Duarte v. Wetzel, 682 So.2d 1200 (Fla. 4th DCA 1996); Martinez v. Hart, 270 So.2d 438 (Fla. 3d DCA 1972), or entrusted the car or truck to an employee to use on the job only and the employee went to the job site during nonworking hours and surreptitiously took the car or truck for personal use. See, e.g., Alford v. Parker's Mech. Constructors, Inc., 241 So.2d 759 (Fla. 1st DCA 1970); Keller v. Fla. Power & Light Co., 156 So.2d 775 (Fla. 3d DCA 1963). While at first blush this case might appear analogous to these latter cases, we conclude that this case is distinguishable. In those cases, the car or truck involved was kept at the employer's place of business and was not accessible to the employee during nonworking hours. In contrast, in this case the truck was kept at the home where both the employee and employer, who were also brothers, resided. Thus, the truck and the keys were readily accessible to the employee even during nonworking hours.

These facts and the others before the trial court, especially considered in light of the familial relationship between Timothy and Steven Carroll, do not establish as a matter of law that Timothy Carroll's use of the truck constituted a...