Newton v. Caterpillar Fin. Servs. Corp., Case No. 2D15–2927

• Court: Court of Appeal of Florida (US)
• Writing for the Court: KHOUZAM, Judge.
• Citation: 209 So.3d 612
• Parties: Anthony NEWTON, Appellant, v. CATERPILLAR FINANCIAL SERVICES CORPORATION; Joshua Cram, an individual; Charles Cram, an individual; and C&J Bobcat and Hauling, LLC, a Florida limited liability company, Appellees.
• Docket Number: Case No. 2D15–2927
• Decision Date: 14 December 2016

209 So.3d 612

Anthony NEWTON, Appellant,
v.
CATERPILLAR FINANCIAL SERVICES CORPORATION; Joshua Cram, an individual; Charles Cram, an individual; and C&J Bobcat and Hauling, LLC, a Florida limited liability company, Appellees.

Case No. 2D15–2927

District Court of Appeal of Florida, Second District.

Opinion filed December 14, 2016

Thomas J. Seider and Steven L. Brannock of Brannock & Humphries, Tampa; and T. Patton Youngblood, Jr., of Youngblood Law Firm, St. Petersburg, for Appellant.

Sarah Lahlou–Amine of Buchanan, Ingersoll & Rooney PC, Tampa; Hala A. Sandridge of Buchanan, Ingersoll & Rooney PC, Tampa (substituted as counsel of record); and Blake J. Delaney and Sundeep B. Nath of Buchanan, Ingersoll & Rooney PC, Tampa, for Appellee Caterpillar Financial Services Corporation.

No appearance for remaining Appellees.

KHOUZAM, Judge.

Anthony Newton appeals the final summary judgment entered in favor of Caterpillar Financial Services. Because the piece of machinery that caused injuries to Newton is not a dangerous instrumentality, we affirm.

Newton was hired as an independent contractor by C&J Bobcat and Hauling, LLC, to assist its agent, Charles Cram, in clearing debris off a private lot in a residential area. Cram and Newton used a Bobcat model 257B3 loader to assist in clearing the lot. C&J did not own the Bobcat 257B3 loader; rather, it leased it from Caterpillar Financial Services. The loader was transported in a box trailer to the residential property by Cram. Once he arrived on the lot, Cram disencumbered the trailer and briefly drove the loader on the street before driving it onto the private lot. Cram and Newton used the loader to dump the debris they cleared from the lot into a box trailer for disposal. At one point, the two were trying to move a tree stump into the box trailer. Cram was driving the loader, carrying the tree stump in its bucket. He asked Newton to get inside the trailer to pack down the debris that filled the trailer. While Newton was inside the trailer, making room for additional debris, Cram released the tree stump. Newton tried to warn Cram that he was still in the trailer, but his voice could not be heard. He tried to climb over the wall of the box trailer, but the tree stump dropped from the loader's bucket and rolled back onto Newton's hand, severing his middle finger.

Newton filed suit against Caterpillar, alleging that it was liable for the injuries he sustained from Cram's negligent operation of the loader because the loader was a

209 So.3d 614

dangerous instrumentality.¹ Newton and Caterpillar filed motions for summary judgment disputing whether the loader was a dangerous instrumentality. The motions were each accompanied by expert affidavits. The trial court heard legal arguments from both parties and found that the loader was not a dangerous instrumentality. It entered judgment in favor of Caterpillar.

Whether the loader in this case is a dangerous instrumentality presents a pure question of law that this court reviews de novo. See Rippy v. Shepard , 80 So.3d 305, 306 (Fla. 2012). The doctrine imposes vicarious liability on the owner of an " ‘instrumentality of known qualities [that] is so peculiarly dangerous in its operation’ as to justify application" of the doctrine. Id. (quoting S. Cotton Oil Co. v. Anderson , 80 Fla. 441, 86 So. 629, 638 (Fla. 1920) (on petition for rehearing)). In deciding whether something is a dangerous instrumentality, courts consider a number of factors. "A primary factor in determining whether an object is a dangerous instrumentality is whether the object at issue is a motor vehicle." Id. at 308. Courts also evaluate the extent to which an object is regulated because legislative regulation is a recognition of the danger posed by the use of the evaluated instrumentality. See S. Cotton Oil Co. , 86 So. at 634 ("It is idle to say that the Legislature imposed all these restraints, regulations, and restrictions upon the use of automobiles, if they were not dangerous agencies which the Legislature felt it was its duty to regulate and restrain for the protection of the public."). Another factor is the relative danger posed by the instrumentality. See id. at 633 ; Festival Fun Parks, LLC v. Gooch , 904 So.2d 542, 546 (Fla. 4th DCA 2005) (noting that accidents involving go-karts causing serious injury were "pretty rare"). The physical characteristics of the object are also pertinent to the dangerous instrumentality inquiry. See Rippy , 80 So.3d at 309 ; Harding v. Allen–Laux, Inc. , 559 So.2d 107, 108 (Fla. 2d DCA 1990) (describing a forklift as a "large[ ], four-wheel vehicle with protruding steel tusks"). Courts also consider whether the instrumentality at issue is operated in close proximity to the public. Compare Harding , 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 on an airport construction site and its operator was apparently a fellow employee of the plaintiff ." (emphasis added)). No single factor is determinative of the inquiry, and this list of factors is not exhaustive. Rather, these factors exist to assist courts in determining whether an application of the dangerous instrumentality doctrine is justified. See Harding , 559 So.2d at 108.

With this framework in mind, we return to the evidence reviewed by the trial court. Caterpillar's expert, Ron Reinholdt, provided an affidavit in support of Caterpillar's summary judgment motion. He noted that the loader was equipped with a continuous rubber track which was designed for use off road or on unimproved surfaces. He emphasized that the loader was not designed to be primarily operated on roads and that the loader was not routinely operated on public highways, rights-of-way, golf courses, or other improved surfaces.

209 So.3d 615

Additionally, Reinholdt's affidavit provided that Caterpillar maintained databases containing information about reported accidents and litigation. The databases revealed that there were seventeen total accidents reported to Caterpillar involving the 13,326 model 257 loaders sold or leased by Caterpillar. Ten of those accidents involved injury to the operator of the Caterpillar, three involved injury to a technician servicing the loader, and four involved injury to third parties. Only two of the incidents involving third parties resulted in serious injury. Based on these statistics, Reinholdt concluded that the general rate of incident was one in every 783 units and that the rate of incident to third parties was one in every 3331 units. He calculated that one third party is injured for every 1102 years of continuous loader operation.

Newton's expert, George Kremer, focused on the physical characteristics of the loader and its potential to cause harm. He opined that the loader was a dangerous instrumentality based on the following: The loader weighed 8000 pounds...