Orefice v. Albert
| Decision Date | 22 July 1969 |
| Docket Number | 69--93,Nos. 68--995,s. 68--995 |
| Citation | 226 So.2d 15 |
| Parties | Margaret L. OREFICE, as Administratrix of the Estate of Michael Betz, a minor, deceased, Appellant, v. John W. ALBERT, Appellee. Bonnie BETZ, individually and as parent and next friend of Michael Betz, a minor, deceased, Appellant, v. John W. ALBERT, Appellee. |
| Court | Florida District Court of Appeals |
Wheeler & Evans, Miami, for appellants.
Dixon, Bradford, Williams, McKay & Kimbrell, Miami, for appellee.
Before PEARSON, C.J., and HENDRY and SWANN, JJ.
In number 68--995 the appellant is Margaret Orefice, as administratrix of the estate of Michael Betz, a deceased minor. In number 69--93 the appellant is Bonnie Betz, the mother of Michael Betz. Each plaintiff appeals from a final judgment ruling that the plaintiff had no action against the defendant-appellee, John W. Albert.
Appellee and Orlo Betz, the father of the deceased minor, Michael Betz, were co-owners of an airplane. Orlo Betz and Michael Betz were killed when the airplane crashed as a result of Orlo Betz's negligent flying.
The administratrix sued Albert upon the theory that an airplane is a dangerous instrumentality. She claimed that under the dangerous instrumentality doctrine which has been developed in Florida for the fixing of responsibility in automobile negligence cases Albert, as co-owner of the airplane, was liable in damages for Michael Betz's death. The final judgment appealed from was entered upon Albert's motion to dismiss the appellant's complaint for failure to state a cause of action; it is based upon two conclusions of law set forth in an extensive opinion. First, an airplane is not a dangerous instrumentality under Florida law. Second, one co-owner of an aircraft is not vicariously liable for the negligent operation of the aircraft by another co-owner.
The appellant relies upon Matthews v. Lawnlite Company, Fla.1956, 88 So.2d 299, and Shattuck v. Mullen, Fla.App.1959, 115 So.2d 597. An examination of these cases and of Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L.R.A.1917E, 715 (1917); Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255 (1920); and Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940), convinces us that the reasoning which has impelled the Florida Supreme Court to classify an automobile as a dangerous instrumentality when it is being operated applies to an airplane. See also Grain Dealers Nat. Mut. Fire Ins. Co. v. Harrison, 190 F.2d 726 (5th Cir. 1951). We therefore conclude that the trial judge's decision may not be affirmed on the premise that an airplane is not a dangerous instrumentality.
In ruling that one co-owner of an aircraft may not be held vicariously liable for the negligent operation of an aircraft by another co-owner, the trial court relied extensively upon decisions of other jurisdictions. 1 The appellant urges that the appellee has an absolute vicarious liability because an airplane is a dangerous instrumentality. We hold that one co-owner of an airplane who is not actively negligent is not liable for harm caused by negligent operation of the airplane by a second co-owner when the action is for damages resulting from the death of the second co-owner's minor child while the child is in the custody of the second co-owner. We think it follows from the holdings in Klepper v. Breslin, Fla.1955, 83 So.2d 587, and Martinez v. Rodriguez, Fla.1968, 215 So.2d 305, that the administratrix of a child's estate may not recover damages for the death of the child if the sole basis of her action is the negligence of the parent in whose custody the child is at the time of death. In the instant case the only negligence alleged in the complaint is the negligence of Orlo Betz, the father of the deceased child. Orlo Betz had full custody of the child, and his negligence was the sole cause of the child's death. Under these conditions the appellee is insulated from liability.
The appeal of Bonnie Betz, the surviving parent of Michael Betz, is from a final judgment entered upon appellee's motion for summary judgment. The trial judge found that Bonnie Betz, individually, and as parent of Michael Betz, was not entitled to recover for the death of Michael Betz because at the time of his death the child was in the custody and control of Orlo Betz with her knowledge and consent because it was undisputed that the child's death was caused by the negligence of Orlo Betz. The decision of the trial judge on this issue of law is fully supported by the decision of the Supreme Court of Florida in Martinez v. Rodriguez, Fla.1968, 215 So.2d 305.
We therefore conclude that...
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Orefice v. Albert
...ADKINS, Justice. By petition for certiorari, we have for review a decision of the District Court of Appeal, Third District (Orefice v. Albert, 226 So.2d 15), which allegedly conflicts with prior decisions of this Court and District Courts of These two cases arose when decedent Michael Betz,......
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Vreeland v. Ferrer
...law was not raised in either the supreme court or in the underlying case before the district court of appeal. See Orefice v. Albert, 226 So.2d 15 (Fla. 3d DCA 1969). As such, the supreme court did not address the issue presented Moreover, the Orefice court's ruling that the dangerous instru......
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Lockwood v. Astronautics Flying Club, Inc., 30628 Summary Calendar.
...law, which no doubt would impose vicarious liability under the theory that an airplane is a dangerous instrumentality, Orefice v. Albert, 226 So.2d 15 (Fla. App.1969), is not applicable to this action arising on the high seas. Guess v. Read, 5 Cir. 1961, 290 F.2d 622; Middleton v. Luckenbac......
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Orefice v. Albert, s. 68-995
...the Supreme Court of Florida in the above styled cause filed July 1, 1970 (237 So.2d 142), the prior opinion and judgment of this court (226 So.2d 15) is hereby modified as directed by the said opinion and judgment of the Supreme Court of Florida and, except as modified, is adhered to. The ......