Vic Potamkin Chevrolet, Inc. v. Horne

• Decision Date: 07 April 1987
• Docket Number: No. 84-2813,84-2813
• Citation: 12 Fla. L. Weekly 960,505 So.2d 560
• Parties: 12 Fla. L. Weekly 960 VIC POTAMKIN CHEVROLET, INC., Appellant, v. Junie HORNE, Appellee.
• Court: Florida District Court of Appeals

Page 560

505 So.2d 560

12 Fla. L. Weekly 960

VIC POTAMKIN CHEVROLET, INC., Appellant, v. Junie HORNE, Appellee.

No. 84-2813.

District Court of Appeal of Florida,

Third District.

April 7, 1987.

Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and David T. Hewett, Miami, Richard A. Sherman, Fort Lauderdale, for appellant.

Headley & Webb, Daniels & Hicks and Patrice A. Talisman, Miami, for appellee.

Carlton, Fields, Ward, Emmanuel, Smith & Cutler and J. Robert McClure, Jr., and William C. Owen and George N. Meros, Jr., Tallahassee, for Florida Automobile Dealers Ass'n as amicus curiae.

Before SCHWARTZ, C.J., and HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

ON MOTION FOR REHEARING EN BANC

JORGENSON, Judge.

The defendant, Vic Potamkin Chevrolet, Inc. [Potamkin], filed a motion for rehearing of the opinion of this court. The panel opinion affirmed the trial court's entry of final judgment in accordance with the jury verdict in favor of the plaintiff, Junie Horne. This court, on its own motion, has determined to grant rehearing en banc pursuant to Florida Rule of Appellate Procedure 9.331(c), on the ground that the case is of exceptional importance. The panel opinion filed in this case on August 12, 1986, is withdrawn, and the following opinion is substituted in lieu thereof.

The issue presented on appeal is whether this court should extend the law of negligent entrustment to include negligent sales. Now sitting en banc, we decline to so extend the law and, for the reasons which follow, reverse the judgment under review.

Nora Newry went to Vic Potamkin Chevrolet to buy a car. She had a restricted driver's license which requires that a licensed driver be present when she is driving. When Newry took a test drive, she had difficulty handling the car. At one point, the salesman riding with her grabbed the wheel to avoid an accident. The salesman told her that she should bring someone back with her when she came to pick up the car. Later that afternoon, Newry returned to complete the sale and pick up the car. The plaintiff below, appellee here, Junie Horne, is an old friend of Newry's and happened to be at the lot. Horne, who is a licensed driver, ended up driving home with Newry. The salesman who had accompanied Newry on the test drive predicted to a fellow employee that Newry would not drive one block without causing an accident. As Newry was driving west on MacArthur Causeway, she lost control of the car and hit a tree. Horne suffered injuries in the accident and, consequently, sued Potamkin and others. The case against Potamkin went to the jury on a theory of negligent entrustment. The jury returned a verdict against Potamkin for $195,000, and this appeal followed.

The concept of negligent entrustment is established in section 390 of the Restatement (Second) of Torts (1966), which provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

We accept and approve the idea that a person who loans a chattel to a person he knows is not responsible should be held liable. To hold liable an automobile dealer who has sold a car and no longer has any control over it is another matter. Mullins v. Harrell, 490 So.2d 1338 (Fla. 5th DCA 1986), is the first Florida case to adopt the Restatement (Second) version of section 390. That case involved the more traditional negligent bailment situation, and the question of negligent sale did not arise. ¹ We suggest that, if the law is to be extended to include liability for negligent sales, it is for the supreme court or the legislature to do it. Gilliam v. Steward, 291 So.2d 593 (Fla.1974); Hoffman v. Jones, 280 So.2d 431 (Fla.1973) (supreme court may change judicially created law when great social upheaval dictates).

The common law and statutory law of Florida provide that once an automobile dealer has transferred ownership of an automobile to a buyer the dealer cannot be held liable for the buyer's subsequent negligent acts in the operation of the automobile. McAfee v. Killingsworth, 98 So.2d 738 (Fla.1957); Palmer v. R.S. Evans, Jacksonville, Inc., 81 So.2d 635 (Fla.1955); Whalen v. Hill, 219 So.2d 727 (Fla. 3d DCA 1969); § 319.22(2), Fla.Stat. (1985). A seller of a product can only be held liable if (1) the injury caused by the product could reasonably have been expected to occur either because of its inherently dangerous nature, see, e.g., Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958); Edwards v. California Chem. Co., 245 So.2d 259 (Fla. 4th DCA), cert. denied, 247 So.2d 440 (Fla.1971), or because the product was defective, see, e.g., Walker v. National Gun Traders, Inc., 116 So.2d 792 (Fla. 3d DCA 1960), or (2) the seller breaches a duty created either by contract, Robertson v. Deak Perera (Miami), Inc., 396 So.2d 749 (Fla. 3d DCA), rev. denied, 407 So.2d 1105 (Fla.1981), or by statute, see, e.g., Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967). A seller cannot be held liable for harm caused by a "defective" customer. Horne did not allege that the car sold to Newry was defective; nor is an automobile inherently dangerous in nature. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920) (automobile, though in operation a dangerous instrumentality, is not dangerous per se ). Further, Potamkin did not breach any contractual duties, see Robertson, or statutory obligations.

Horne argues that sellers have a duty to protect the world against incompetent product users. This duty exists only "in the air." See Robertson, 396 So.2d at 750 (quoting Pollock, Law of Torts 468 (13th ed. 1920)). The duty to protect strangers against the tortious conduct of another can only arise if, at the time of the injury, the defendant is in actual or constructive control of (1) the instrumentality, e.g., Avis Rent-A-Car Sys. v. Garmas, 440 So.2d 1311 (Fla. 3d DCA 1983) (owner of dangerous instrumentality liable to third persons for negligent use by anyone to whom it has been entrusted), rev. denied, 451 So.2d 848 (Fla.1984), (2) the premises upon which the tort is committed, e.g., Allen v. Babrab, Inc., 438 So.2d 356 (Fla.1983) (tavern owner has duty to protect patrons from disorderly conduct of third persons), or (3) the tortfeasor, e.g., Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981) (employer vicariously liable for compensatory damages resulting from negligent acts of employees committed within scope of their employment even if employer without fault); Snow v. Nelson, 450 So.2d 269 (Fla. 3d DCA 1984) (parent may be held responsible for torts of child), approved, 475 So.2d 225 (Fla.1985). In the instant case, Potamkin did not have actual or constructive control over the instrumentality or the situs of the tort. Further, Newry did not stand in such a relationship to Potamkin as to warrant the application of the maxim qui facet per alium facet per se --"he who acts through another, acts by or for himself"--and, therefore, the doctrine of implied negligence is not implicated. ² Even in the most attenuated of cases, e.g., cases where landowners are held liable for criminal acts of strangers, see, e.g., Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980), there still must be some element of control upon which to predicate liability. ³ At the time of the accident, Potamkin had no control over the circumstances.

The creation of a duty on the part of the seller to guarantee the acts of a buyer would be manifestly unreasonable. Notwithstanding Horne's argument that we can limit negligent entrustment with respect to sales to instances where the seller "knows" of the buyer's incompetency to use the product, as a practical matter, sellers, in order to protect themselves from liability, would be required to probe into the buyer's background to determine the buyer's fitness to use the seller's product. The risks normally assumed by a buyer in the purchase of a product would remain with the seller. As a consequence, sellers would sell fewer products, or they would sell them at a higher cost. The imposition of this new duty not to sell would create uncertainty and retard the free flow of commerce. "A basic function of the law is to foster certainty in business relationships, not to create uncertainty by establishing ambivalent criteria for the construction of those relationships." Muller v. Stromberg Carlson Corp., 427 So.2d 266, 270 (Fla. 2d DCA 1983); see also Hartley v. Ocean Reef Club, Inc., 476 So.2d 1327, 1329 (Fla. 3d DCA 1985). We think it sufficient for a dealer prior to delivery of a car to determine that a buyer has a valid license. We think it inappropriate to further burden car dealers with an additional obligation of determining that every customer is a safe driver.

Finally, at the time of the events in question Newry was indeed legally authorized to drive. Newry was in full compliance with the conditions laid down by the State of Florida by virtue of having a licensed driver in the front seat with her. The licensed driver in this case is the plaintiff, Junie Horne. The fact that Potamkin's agent, the salesman, thought Newry was less than competent is simply not relevant. It is for the State of Florida, not Potamkin, to determine who is qualified to drive. The legislature has not commissioned automobile dealers to serve as agents of the Department of Motor Vehicles to act as a secondary screening mechanism for detecting bad drivers. Until such time and in view of the present statutory and common law scheme, this court should not impose on automobile dealers a duty not to sell. However, recognizing this issue to be a question...