Kane By and Through Kane v. Portwood
| Decision Date | 25 January 1991 |
| Docket Number | No. 89-02001,89-02001 |
| Citation | 16 Fla. L. Weekly 271,573 So.2d 980 |
| Parties | 16 Fla. L. Weekly 271 Kristine M. KANE, a minor, By and Through her parents, next friends and natural guardians, Virginia A. KANE and Gary J. Kane, Appellant, v. Raymond Leroy PORTWOOD and Commercial Carrier Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Michael W. Gaines, and Paul G. McDuffee of Langford, Mooney & McDuffee, P.A., Tampa, for appellant.
Glenn Waddell of Waddell and Ready, P.A., Auburndale, for appellees.
The plaintiffs, Kristine Kane and her parents, Gary and Virginia Kane, appeal a judgment in favor of the defendants, Commercial Carrier Corporation and its driver, Raymond Leroy Portwood. This case arises from an automobile accident between Commercial Carrier's truck and a car in which Miss Kane was a passenger. The jury determined that Miss Kane was involved in a joint enterprise with the driver of the car in which she was a passenger. We hold that the evidence in this case does not permit the application of the joint enterprise doctrine. In so holding, we observe that this case concerns only that joint enterprise doctrine which shifts the risk of a tortfeasor's collectibility from a joint tortfeasor to the injured plaintiff.
On February 14, 1986, Kristine Kane and her friend, Karlene Ludwig, decided to attend a party given by a schoolmate at a location north of Tampa, Florida. On that day, Miss Kane was fifteen years old and possessed only a learner's permit. Miss Ludwig was sixteen years old, had a valid driver's license, and had permission to use her grandparents' car. Miss Ludwig drove north on Dale Mabry Highway in Hillsborough County, while Miss Kane gave directions from a hand-drawn map. While they were turning left onto Van Dyke Road, their car was struck on the passenger's side by a tanker truck, owned by Raymond Leroy Portwood and Commercial Carrier Corporation, and driven by Mr. Portwood. Both girls stated that they had no recollection of the events immediately preceding the accident, except that they were looking for the correct road when they were struck by the tanker truck.
Through her parents, Miss Kane filed suit against Commercial Carrier and Mr. Portwood, and also against Miss Ludwig and her grandparents, Roy and Hilda Quinn. Additionally, Miss Ludwig sued Commercial Carrier and Mr. Portwood. Commercial Carrier and its driver answered both lawsuits. They raised the defense of joint enterprise and also filed a cross-claim against Miss Ludwig and her grandparents for contribution pursuant to section 768.31, Florida Statutes (1989), seeking a pro rata share of any damages they might ultimately pay to Miss Kane.
These cases were consolidated for trial and tried in 1989. At the beginning of the trial, Miss Kane and her parents settled with Miss Ludwig and her grandparents for $100,000. Following several days of trial, the jury returned verdicts in favor of both plaintiffs. Concerning Miss Ludwig, the jury found that she was 65% comparatively negligent, that Commercial Carrier and its driver were 35% negligent, and that her damages totalled $20,000. Any judgment entered on that verdict is not involved in this appeal. Concerning Miss Kane, the jury awarded total damages of $160,000. The jury, however, found that the two teenagers were involved in a joint enterprise and imputed Miss Ludwig's 65% negligence to Miss Kane. 1
In light of the verdict on joint enterprise, the defendants filed a posttrial motion requesting that the verdict be reduced to $56,000 to reflect the imputation of Miss Ludwig's negligence to Miss Kane. Moreover, the posttrial motion requested that the defendants receive the benefit of the $100,000 settlement as a settlement with a joint tortfeasor pursuant to sections 768.041 and 768.31 of the Florida Statutes (1989). The trial court granted both requests. Accordingly, Miss Kane and her parents received a judgment for zero dollars.
It is significant to note that this case does not involve any theory of direct comparative negligence on the part of Miss Kane. Because of the limited evidence of the two girls' actions immediately preceding the accident, there was no basis for Miss Kane's judgment to be reduced by any comparative negligence. Her judgment was reduced only by theories which imputed the driver's negligence to her.
Before one can decide whether the joint enterprise doctrine applies in this case, it is necessary to define this doctrine. In doing so, the joint enterprise doctrine should be distinguished from concepts of joint venture. Because the joint enterprise doctrine has served several different functions during the last fifty years, it is also important to understand its historical uses as contrasted to its current function. As we will explain, the current doctrine is a judicially created alternative to joint and several liability. Although it avoids some of the harsher results of joint and several liability, the legislature has chosen to control those extreme results in a wider range of cases through other statutory methods. Hence, we conclude that the current joint enterprise doctrine must be conservatively applied in order to permit full usage of the legislative solutions. Under a conservative application, this case does not involve facts which authorize the use of the joint enterprise doctrine.
This case involves a joint enterprise and not a joint venture. "Joint enterprise," "joint adventure," and "joint venture" have frequently been used in an interchangeable fashion. In some contexts, however, these terms connote different legal relationships. Interchanging legal concepts with different definitions may easily confuse legal analysis.
"Joint venture" is a legal term used to describe a type of business relationship. In general, it is a combination of persons to undertake a particular business transaction under conditions similar to a partnership. 8 Fla.Jur.2d Business Relationships § 679 (1978); W. Keeton, W. Prosser, The Law of Torts § 72 (5th ed. 1984). "Joint adventures" also seem to involve business relationships. Indeed, this court has equated a joint venture with a joint adventure. Klaber v. Klaber, 133 So.2d 98 (Fla. 2d DCA 1961).
By contrast, a joint enterprise is a nonbusiness relationship. Florida Standard Jury Instructions (Civil) 3.3e and 3.3f recognize this distinction and limit the use of the joint enterprise instructions to cases involving automobile liability. There is no dispute that this case concerns a joint enterprise and does not involve a joint venture.
A leading treatise observes: "Considerable confusion still surrounds the [joint enterprise] doctrine, which no one has succeeded in reducing to any very exact formula or definition." Keeton, Prosser, The Law of Torts § 72 at 518. This confusion exists in part because the "doctrine" has been applied in at least five different contexts, each addressing distinct legal issues with varying and sometimes juxtaposed underlying policies.
First, the joint enterprise doctrine was extensively used as a method to avoid the harsh result of the guest passenger statute. See ch. 18033, § 1, Laws of Fla. (1937) (codified at § 320.59, Fla.Stat. (1941)). A plaintiff would affirmatively plead that the accident was the fault of a driver with whom the plaintiff/passenger had a joint enterprise. Roberts v. Braynon, 90 So.2d 623 (Fla.1956); Yokom v. Rodriguez, 41 So.2d 446 (Fla.1949); Cline v. Schoenberger, 234 So.2d 372 (Fla. 2d DCA 1970); Bramble v. Garris, 144 So.2d 324 (Fla. 2d DCA 1962); Kaplan v. Wolff, 198 So.2d 103 (Fla. 3d DCA), cert. denied, 204 So.2d 328 (Fla.1967); McGowan v. Wilson, 154 So.2d 331 (Fla. 3d DCA 1963). The existence of a joint enterprise negated the passenger's guest status. As a result, the passenger could recover against the driver on a theory of simple negligence.
It should be obvious that policies which create a remedy for a plaintiff must be substantially different than policies which prohibit or reduce a plaintiff's recovery. Thus, precedent that defines joint enterprise for purposes of the guest passenger statute is not controlling precedent in this case. If that precedent did not depart with the guest passenger statute, 2 it remains only as a remnant of the past.
Second, the joint enterprise doctrine was used to impute the driver's negligence to the passenger, as a method of contributory negligence, to completely prohibit the passenger from recovering against a negligent third party. Bessett v. Hackett, 66 So.2d 694 (Fla.1953); Bryant v. City of Tampa, 100 So.2d 665 (Fla. 2d DCA 1958); Conner v. Southland Corp., 240 So.2d 822 (Fla. 4th DCA 1970). This imputation of contributory negligence is recognized in the Restatement (Second) of Torts sections 490-491 (1965). Under this theory, a defendant effectively becomes a third-party beneficiary of an oral, nonbusiness contract. The defendant is not obligated to pay for damages to which he or she contributed because of some vague transactional relationship between the driver and the passenger of the other car. From the defendant's perspective, this relationship is a pure fortuity and has no bearing upon the defendant's obligation to drive safely. In theory, the doctrine is justified because the passenger has joint control of the car and, thus, could have prevented the accident or is responsible for the driver's negligence. The wisdom of this theory has been sharply questioned. 3 This theory obviously departed with the demise of contributory negligence. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We question the application of its precedent in the current context of comparative negligence and contribution among joint tortfeasors.
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