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It should not be surprising that certain items are considered dangerous. A dangerous instrumentality is an item which is either inherently dangerous or poses significant risk of damage if used negligently. At common law, the doctrine of dangerous instrumentality was an offshoot of what is known as vicarious liability. Under vicarious liability, a principal is liable for the actions of his or her agent. In Old England, that was generally an arrangement between master and servant, under which the master entrusted the servant with something that could cause serious bodily injury or damage. The servant had no money and if the servant negligently used the item, an injured person would find the servant had an empty pocket to compensate for damages. Assigning responsibility to the master would protect the public and possibly event make the master more careful allowing or directing use of dangerous items.

Not every potentially dangerous item qualifies as a dangerous instrumentality for which an owner might be liable. Florida courts have considered a variety of factors in appliying the doctrine. Courts consider whether the instrumentality is properly operated near the public, if the instrumentality emit dangers relative to other objects, if the legislature has regulated the instrumentality, and common experience. Florida's Supreme Court has confirmed the doctrine holding an owner liable for injury caused by dangerous instrumentality "is based on the practical fact that the owner of the instrumentality which {has} the capability of causing death or destruction should in justice answer for misuse of this instrumentality…" One of the most important factors is whether the instrumentality is a motor vehicle.

In 1920, Florida's Supreme Court ruled the dangerous instrumentality doctrine applies to automobiles. The rationale was that automobiles were causing a large number of deaths and the automobile owner should be responsible for the manner in which it is used. That means, the owner is liable for damage caused by the operator. That ought to give everyone pause before loaning their car. It also ought to make husbands and wives think about how they own their cars.

If vehicles are owned jointly, both husband and wife are liable for injuries and property damage resulting from negligent operation by either of them. That can mean that all their assets, whether owned jointly or even separately by the spouse who was not driving the car could be reached by an injured person after judgment. A better practice to provide some insulation from claims of an injured person would be for each spouse to be sole title holder on the motor vehicle one spouse drives most of the time. An injured person could only reach the assets owned by the spouse who both owned and operated the vehicle causing damage.

What if the owning spouse dies? Will the surviving spouse have to go through probate to get title to the car? Simple answer is no. Florida statutes provide that the person entitled to the vehicle by operation of law (where there is no Will) or by terms of a Will can get title to the vehicle without going through probate. A surviving spouse even has additional protection. The surviving spouse may be entitled to 2 personal automobiles held in their deceased spouse's name and regularly used by the deceased spouse or members of the deceased spouse's immediate family as personal automobiles and those cars are even exempt from creditor claims. But, the surviving spouse only gets the car if they are not specifically devised by Will to someone else.

If you do loan your car to someone else, the owner is only liable for damages of $100,000.00 per person and up to $300,000.00 per incident for bodily injury and $50,000.00 for property damage, as long as the person you loaned the car to has insurance with limits for $500,000.00 or more. If the driver does not have that amount of insurance, the owner can be liable for up to an additional $500,000.00. By federal law, owners of vehicles which are rented or leased (i.e. Hertz or Avis) are not liable. Another exemption from liability is when the operator intentionally causes harm, as long as the owner was not aware of the intent when the vehicle was loaned.

What about boats? Just as a motor vehicle can cause great damage if operated negligently, it should not be a surprise Florida's legislature has expressly found boats to be dangerous instrumentalities. Florida's legislature throws owners a bone by statute under Section 327.32 Fla. Stat. That statute mandates that any operator of a vessel utilize the highest degree of care to prevent injury to others and makes the operator in immediate charge of a vessel liable for injuries. The owner of the vessel does not have liability unless the owner was present in the vessel when the injury or damage was caused by the reckless or careless operation of the vessel, if the owner is a natural person. If the owner is not a natural person, it is considered present in the vessel and acting by and through its agents or employees, in which case it is treated as operating the vessel itself. The statute only applies to vessels operated on the waters of Florida and not the navigable waters of the United States.

Navigable waters of the United States are fall under the Ship Owner's Limitation of Liability Act of 1851. Under the Act, a boat owner can potentially limit liability to all potential claimants to an amount equal to the post accident value of the boat. The owner has to file an action in federal court to invoke protection of the statute within 6 months after receiving notice of a claim. The court determines if the unit owner was at fault in connection with the damages and if not the court determines if the vessel owner was sufficiently involved to be at fault. If the owner passes these tests, the owner's liability is limited to the post accident value of the boat.

Airplanes have been given similar attention. Few will argue that negligent operation of an airplane could result in significant damage and courts have agreed. Federal law almost eliminates liability of an airplane owner not in possession or control of an airplane and limits liability when in possession or control to injury, death or property damage because of the aircraft engine or propeller or the flight of or an object falling from the aircraft engine or propeller. Florida has interpreted the federal law to limit its protection to claims for death, injury or damage caused to people or property that are physically on the ground or on the water. Florida courts have also confirmed the owner is liable if the owner has not properly maintained the airplane in a safe operating condition.

Florida's courts, Florida's legislature and even Congress have given much attention to the harm that can be caused by cars, boats and planes. Florida's doctrine of dangerous instrumentality has been overridden in many respects by statutes limiting liability of owners. Nevertheless, owners would be well to heed at least part of the advice by Polonius in Hamlet, when he advised his son Laertes to "neither a borrower nor a lender be." At least with respect to boats and cars, being a lender can open the door to unexpected liability.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

Categories: INSURANCE, Liability, accident