Meister v. Fisher, 82-585

• Decision Date: 10 August 1983
• Docket Number: No. 82-585,82-585
• Citation: 435 So.2d 981
• Parties: Mildred K. MEISTER and Abraham Meister, Appellants, v. Paul FISHER, Emerald Hills Country Club, Inc., Continental Insurance Company and Allstate Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 981

435 So.2d 981

Mildred K. MEISTER and Abraham Meister, Appellants, v. Paul FISHER, Emerald Hills Country Club, Inc., Continental Insurance Company and Allstate Insurance Company, Appellees.

No. 82-585.

District Court of Appeal of Florida Fourth District.

Aug. 10, 1983.

Sam Daniels and Mark Hicks of Daniels & Hicks, Miami, and Sams, Gerstein & Ward, P.A., Miami, for appellants.

Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellees Emerald Hills and Continental Ins.

DELL, Judge.

Mildred and Abraham Meister appeal from a final judgment in favor of the appellees Emerald Hills Country Club, Inc. and Continental Insurance Company.

This appeal involves a golf cart accident. Appellants and appellee, Paul Fisher, had each rented golf carts from the Emerald Hills Country Club, Inc. As they approached the seventh hole, Mr. Meister turned his golf cart to go to the restroom area for a drink of water. The Fishers elected to follow the Meisters. The Meisters stopped their golf cart at the restroom facilities and as Mrs. Meister exited the golf cart, the golf cart operated by Paul Fisher struck the Meister cart from the rear. As a result of the impact, Mrs. Meister suffered personal injuries. Mr. Fisher alleged that the brakes failed on the golf cart that he was operating. Emerald Hills Country Club, Inc., owned both golf carts. The Meisters elected to abandon all other theories of liability against Emerald Hills Country Club, Inc., except such liability as may be imposed under the dangerous instrumentality doctrine of the State of Florida.

This appeal presents one important question: whether or not a golf cart, which is a self propelled vehicle which transports people, is within the dangerous instrumentality doctrine of the State of Florida.

In this state, the Supreme Court created the dangerous instrumentality doctrine. In Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, 978 (1917), the Court laid down the principles underlying the doctrine:

The principles of the 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 imposing upon such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle, that is not inherently dangerous per se, but peculiarly dangerous in its use, properly operated when it is by his authority on the public highway. [Emphasis added.]

Numerous decisions have considered the dangerous instrumentality doctrine since Southern Cotton Oil Co., supra. However, until 1974, the courts of Florida appeared reluctant to extend this doctrine to vehicles other than those which were operated on public highways. Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940); Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947). For example, in 1962 the Third District Court of Appeal had no difficulty in determining that a "tow-motor" constituted a dangerous instrumentality because it was being operated on a public street or highway.

On the evidence, the jury was entitled to find that the injury occurred on a public street or highway maintained by the city for vehicular and pedestrian traffic, and that the "tow-motor" was a motor vehicle. On those facts, the dangerous instrumentality doctrine was properly applied. An owner or driver may not escape liability for negligent operation of a motor vehicle on a public street or highway because the required licensing of the vehicle has been omitted.

Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551, 552 (Fla. 3d DCA 1962). [Footnotes omitted.]

In 1974, this Court concluded that use on a public highway does not constitute a qualification or limitation on the applicability of the dangerous instrumentality doctrine:

[T]he numerous Florida cases in which the dangerous instrumentality doctrine has been applied to motor vehicles virtually without exception have made reference to the fact that such vehicle is a dangerous instrumentality while operated upon the public highways of this state. Indeed it is! But, we do not understand this long established doctrine to mean, conversely, that a motor vehicle in operation is not a dangerous instrumentality while operated elsewhere than upon the public highways of this state. In other words, the reference to the motor vehicle being a dangerous instrumentality while operated upon the public highways is not a qualification or limitation upon the doctrine so as to make it applicable only when the motor vehicle is on the public highway. The qualification is that the automobile, not dangerous per se, becomes such when put into operation.

Reid v. Associated Engineering of Osceola, Inc., 295 So.2d 125, 128 (Fla. 4th DCA 1974).

Therefore, neither licensing requirements nor use on the public highways constitute necessary prerequisites for a motor vehicle to come within the dangerous instrumentality doctrine. The Supreme Court, on rehearing in Southern Cotton Oil Co., supra, stated the purpose and policy of the dangerous instrumentality doctrine when it said that

[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.

Southern...