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09/20/12 It's The Law: Caution Dangerous Instrumentality Involved


I just got divorced and under my Settlement Agreement, my wife and I will continue to jointly own a boat and an airplane. I heard something about boats and airplanes being called “dangerous instrumentalities” and that an owner is liable for anyone injured by the boat or airplane. Is that correct?


A “dangerous instrumentality” is generally an object that is inherently dangerous. It is likely to cause or potentially capable of causing harm during operation. By Statute, Florida makes all pleasure boats dangerous instrumentalities. Florida courts otherwise agree that automobiles and airplanes are also dangerous instrumentalities.

Most people do not know that the owner of a dangerous instrumentality is generally liable for any damage caused by the dangerous instrumentality. That is the reason we recommend our married clients not own all of their vehicles, boats or airplanes jointly. If anyone is injured by the boat, airplane, or motor vehicle, all of the owners are liable for damages. The Wife should own the car she generally drives and the Husband his. And, everyone needs to be worried about loaning their car for someone else to use.

Risk to the owner is based on what is known as “vicarious liability”. That means you are liable for action of someone else. An owner of a vehicle is one who has legal title to the vehicle and has the right of control and authority over its use. But, there are a number of exceptions to the vicarious liability doctrine. When the owner has delivered possession of a vehicle to a buyer under a sales contract, the owner will not be liable for negligent operation of the vehicle even if the buyer has not yet re-titled the vehicle. If the owner leases the vehicle to another for one year or longer in compliance with statutory requirements, the owner is not liable for negligent operation. And, an owner who delivers his vehicle to a repair shop for maintenance or repair is generally not liable for negligent operation during servicing, testing or transporting of the vehicle by the repair shop.

The exceptions seem to relieve an owner of liability when the owner has either given up ownership rights or delivered the vehicle to his mechanic for maintenance or repair. The same courts will generally find where the owner has made a gift of a motor vehicle the owner is no longer liable for its operation. But, as with so many legal concepts, the devil is in the details.

On August 31, 2012 the Fifth District Court of Appeal decided the case of Bowen v. Taylor-Christenson. In Bowen, a pedestrian’s estate brought a wrongful death action against a drunk driver who struck and killed a pedestrian and the driver’s ex husband because his name was on the car title. The ex-spouses separated in 1999. After their divorce in 2003, but before a final judgment was entered, the Ex Husband attempted to reconcile and as part of that process, purchased a car for Ms. Taylor-Christenson in joint names. The Appellate Court emphasized there were numerous documents identifying the ex-spouses as purchasers, co-owners or both. Although the Ex-Husband’s name was on the title, he defended the case on the grounds that his intention in signing the paperwork was to make a gift of the car to his then Wife. According to the Ex-Husband, he saw the car only twice after it was purchased, once when he drove it to a car wash and a second time in 2003. It appears the Final Judgment of Dissolution was entered in 2003. The fatal collision occurred in 2005.

In a split decision, the Court rejected the Ex-Husband’s “gift” argument. The Court held that a valid gift requires donative intent, delivery of possession and intent by the donor to divest oneself of all dominion and control. The court explained there was no evidence of intent to make a gift, other than the Ex-Husband’s “after the fact” claims. In contrast, all of the documents showed only intent to gift a co-ownership in the vehicle.

The Court also held that the Ex-Husband could not avoid liability by showing he did not use the car or control its use after it was purchased. Ownership and possession are not the same. Ownership is the right to control, not the exercise of that right.

The court went on to reference other cases where the title holder unsuccessfully argued “no ownership.” It found Metzel v. Robinson particularly on point. Metzel signed loan documents and took title to a car only to accommodate her 18-year old nephew. The nephew made all the payments and Metzel had nothing more to do with the car. The nephew caused an accident and the Court held both nephew and aunt liable. The Court explained Metzel stood for three legal propositions that as a matter of law 1) if a person causes or permits his name to be on title when the vehicle is acquired, he cannot contradict the title by claiming he did not intend to be an owner, 2) once a person’s name is on title, the person must take affirmative action to divest himself of that interest to avoid liability, and 3) relinquishing possession and having nothing to do with the vehicle is not sufficient to divest a person on title of his ownership.

This is an area of law where many people find too late that being on the title was not a good idea. I suggest you discuss your particular circumstances with a good attorney.

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