SALSBURY v. KAPKA

• Court: Court of Appeal of Florida (US)
• Citation: 41 So.3d 1103
• Docket Number: No. 4D08-3105.,4D08-3105.
• Parties: Helen SALSBURY and Robert Salsbury, Appellants, v. Kenneth S. KAPKA, Brian M. Cullen, a minor, by and through his parents and natural guardians, John A. Cullen and Virginia J. Cullen; and John A. Cullen and Virginia J. Cullen, individually, Appellees.
• Decision Date: 18 August 2010

41 So.3d 1103

Helen SALSBURY and Robert Salsbury, Appellants,
v.
Kenneth S. KAPKA, Brian M. Cullen, a minor, by and through his parents and natural guardians, John A. Cullen and Virginia J. Cullen; and John A. Cullen and Virginia J. Cullen, individually, Appellees.

No. 4D08-3105.

District Court of Appeal of Florida, Fourth District.

August 18, 2010.

41 So.3d 1104

COPYRIGHT MATERIAL OMITTED.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and David C. Appleby of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellants.

Patrick Gent, Plantation, for appellee.

LEVINE, J.

The issue presented in this appeal is whether an all-terrain vehicle ("ATV") is a "dangerous instrumentality" under Florida's tort law. Because the trial court did not compile an adequate factual record, we cannot reach this issue. Instead, we reverse the judgment of the trial court and remand for an evidentiary hearing.

The dangerous instrumentality doctrine "imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another." Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000). "Operation of a vehicle falls within the strict liability doctrine because a vehicle is dangerous to others when used for its `designed purpose.'" Burch v. Sun State Ford, Inc., 864 So.2d 466, 472 (Fla. 5th DCA 2004) (citation omitted). The doctrine is historically a creation of the courts, not the Legislature, and may be invoked or extended where "`an instrumentality of known qualities is so peculiarly dangerous in its operation as to' justify the doctrine." Harding v. Allen-Laux, Inc., 559 So.2d 107, 108 (Fla. 2d DCA 1990) (quoting S. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 638 (1920)). "Florida is unique in

41 So.3d 1105

that it is the only state to have adopted this rule by judicial decree." Festival Fun Parks, LLC v. Gooch, 904 So.2d 542, 544 (Fla. 4th DCA 2005).¹

In Meister v. Fisher, 462 So.2d 1071 (Fla.1984), the Florida Supreme Court held that a golf cart was a dangerous instrumentality. In reaching that decision, the court pointed to three different justifications for the decision: golf carts fit the statutory definition of "motor vehicle"; golf carts were extensively regulated by statute; and record evidence regarding the causes and consequences of golf cart accidents. The court justified expansion of the dangerous instrumentality doctrine based on a review of the record before them:

As the district court itself noted, Florida's tremendous tourist and retirement communities make golf carts and golf courses extremely prevalent in this state. And there is evidence in this record from an expert who stated he has...