Reid v. Associated Engineering of Osceola, Inc., 72--850

• Decision Date: 17 May 1974
• Docket Number: No. 72--850,72--850
• Citation: 295 So.2d 125
• Parties: Marilyn I. REID, Appellant, v. ASSOCIATED ENGINEERING OR OSCEOLA, INC., et al., Appellees.
• Court: Florida District Court of Appeals

Page 125

295 So.2d 125

Marilyn I. REID, Appellant, v. ASSOCIATED ENGINEERING OR OSCEOLA, INC., et al., Appellees.

No. 72--850.

District Court of Appeal of Florida, Fourth District.

May 17, 1974.

Rehearing Denied June 17, 1974.

Brian C. Sanders and Monroe E. McDonald, of Sanders McEwan Mims & McDonald, Orlando, for appellant.

Edna L. Caruso, of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for appellees.

OWEN, Chief Judge.

Appellant, while seated in a wheelchair in her front yard, sustained serious personal injuries when she was struck by the front of a pickup truck traversing the property. Her suit against the truck owner and its insurer, respectively, was terminated adversely to her by a summary judgment for the defendants. We conclude that this was error and reverse.

The facts are somewhat bizarre. Appellant's husband, Donald Reid, was at the time an employee of appellee-Associated Engineering of Osceola, Inc., and had been entrusted with his employer's Datsun pickup truck on a Friday evening for the purpose of using it in the employer's business the following day. Mr. Reid did use the truck on Saturday, and after work, and in accordance with his employer's instructions, drove the truck to his home and parked it, where it was to be picked up latter that evening by his foreman.

Mr. Reid felt that the street in front of his home was too narrow to permit the truck to be parked on it with safety, and consequently he parked it in his own driveway immediately behind his personal car. Later that evening, he and Mrs. Reid decided to visit some friends and since the Datsun pickup truck had the Reid automobile blocked in the driveway. Mr. Reid went out to switch the position of the vehicles. He first backed the pickup truck to the street, then drove it into his yard in front of the house abreast of his own car. He got out of the truck, leaving the motor running, intending to back his own car to the street and then to move the truck to the driveway in the place where his own car had been. He had backed his own car to the street when he saw the pickup truck moving forward toward the house and toward his wife who, in the meantime, had come out of the house in her wheelchair. Apparently unknown to Mr. Reid, while he was in the process of backing his own car out of the driveway, his 10-year old daughter with no driving experience had gotten into the truck and somehow put the engine into gear causing the vehicle to move forward and strike appellant.

The complaint, as amended, was against Associated Engineering as owner of the pickup truck, and The Travelers Indemnity Company as the liability insurer, and was in three counts, the third of which has been severed and is not involved here. Both of the other counts were based upon allegations that Donald Reid was negligent in leaving the pickup truck parked with the engine running at a time when he knew or should have known that children were accustomed to playing in the area where the vehicle was parked, and when in the exercise of reasonable care he knew or should have known that they might intermeddle with the vehicle and cause it to be put in motion, and that as a direct and proximate consequence of such negligence the plaintiff sustained her injuries. Count one sought to impute the alleged negligence of Donald Reid to Associated Engineering on the basis of its ownership under the dangerous instrumentality doctrine; Count two sought to impute such alleged negligence to Associated Engineering on the basis of respondent superior, alleging that Donald Reid was then in the course and scope of his employment with Associated Engineering as his employer. Upon motion of the defendants, the court entered summary final judgment in their favor on Counts one and two, from which this appeal has been taken.

The summary judgment does not contain any statement as to the basis upon which the court determined that the defendants were entitled to judgment as a matter of law. There is no requirement that such be done, and we are not critical of its omission. We merely note in passing that if trial courts followed the practice of setting forth the basis of their holding in granting summary judgments (when such was not otherwise clearly evident from the record), it would facilitate appellate review.

As a threshold requirement to recovery, appellant must show that her injuries were caused by Donald Reid's negligent operation of the pickup truck; if she overcomes this hurdle, then she must, because of the intra-family immunity doctrine, impute Donald Reid's negligence to Associated Engineering, either as owner of the vehicle under the doctrine of dangerous instrumentality, or as Reid's employer under the doctrine of respondeat superior. Whatever difficulties may lie ahead for appellant in carrying her burden of proof, we conclude that at this point the case is not one for disposition via summary judgment.

Whether or not Donald Reid was negligent in the operation of the pickup truck by leaving it unattended with the engine running when he either knew or in the exercise of reasonable care should have known that children were playing in the vicinity and might intermeddle with the vehicle while it was thus left unattended, presents a question for the jury, as does the question of whether any such negligence was a proximate cause of appellant's injuries. The cases of Clements v. Barber, Fla.App.1971, 258 So.2d 465; Bryant v. Atlantic Car Rental, Inc., Fla.App.1961, 127 So.2d 910; and Lingefelt v. Hanner, Fla.App.1960, 125 So.2d 325, are all distinguishable as involving situations where the car was left unattended with the keys in the ignition and the car was subsequently stolen, whereas here the car was left unattended with the keys in the ignition, The engine running, and The car put into motion inadvertently by a 10-year old child who had no intention to drive the vehicle.

Appellee contends that Dawn, appellant's 10-year old daughter, was not a permissive user of the truck and thus her action was a 'breach of custody amounting to the species of conversion or theft'. Nonsense. There is not the slightest evidence from which it reasonably might be inferred that Dawn intended anything which could be a species of conversion or theft. Furthermore, there is no question of Dawn's conduct being an independent intervening cause since the very essence of the cause of action alleged against Donald Reid is that this result was reasonably foreseeable and that he failed to exercise reasonable care to avoid it.

Any negligence of Donald Reid in the operation of the vehicle would be imputable to the owner, Associated Engineering, under the dangerous instrumentality doctrine. The history and development of that doctrine in Florida as applied to motor vehicles has been thoroughly covered in numerous reported decisions. ¹ It is undisputed that Donald Reid had the owner's permission and consent to use the truck. Appellee contends, however, that the 'dangerous instrumentality' doctrine is not applicable in this case because the vehicle was not being...