UNDER THE DANGEROUS INSTRUMENTALITY DOCTRINE, A PLAINTIFF PURSUING A VICARIOUS LIABILITY CLAIM AGAINST A CAR RENTAL AGENCY THAT OWNED THE VEHICLE CAUSING HIS INJURIES MUST ESTABLISH THAT THE RENTAL AGENCY RENTED THE VEHICLE AND CONSENTED TO ITS USE AND OPERATION BEYOND THE RENTAL AGENCY'S IMMEDIATE CONTROL, AFTER THE BURDEN SHIFTS TO THE RENTAL AGENCY TO SHOW THAT THE VEHICLE WAS CONVERTED BEFORE THE ACCIDENT.

A bicyclist sued a car rental agency to recover damages he suffered in an accident involving a vehicle owned by the agency but operated by a person other than the vehicle renter.  Pursuant to its written agreement, the agency authorized only the renter to operate the vehicle.  The agreement made clear that no other persons were permitted to operate the vehicle without the agency’s consent.  At trial, the parties stipulated that the agency rented the vehicle to the renter, that another person was operating the vehicle at the time of the accident, and that neither side presented evidence as to how the driver obtained the vehicle.

The parties then requested that the trial court determine the bicyclist’s burden of proof.  The bicyclist argued that he was required to show only the agency’s consent to the renter’s use of the vehicle outside of its immediate control, and not the agency’s consent to the use of the vehicle by the driver.  The agency, however, argued that the bicyclist was required to establish the agency’s consent to the driver’s use of the vehicle outside of the agency’s control.  Moreover, the agency argued that, because the bicyclist could not show such consent, the trial court should direct a verdict in favor of the agency.  The trial court agreed and entered a direct verdict in the agency’s favor.

The appellate court noted that, pursuant to Florida’s dangerous instrumentality doctrine, a vehicle owner is liable to third persons for injuries caused by the negligent operation or use of the vehicle by the person to whom the owner entrusted the vehicle.  Essentially, Florida law imposes upon a vehicle owner that gives consent for another to operate the vehicle a non-delegable duty to ensure that the vehicle is operated safely.  While recognizing that consent is essential to the vicarious liability of a vehicle owner, the appellate court, relying upon an earlier opinion of the Florida Supreme Court,  noted that the essential consent required is the consent to the use or operation of the vehicle beyond the immediate control of the owner.  See Susco Car Rental Sys. of Fla. v. Leonard, 112 So. 2d 832 (Fla. 1959).  The appellate court also noted that liability under the dangerous instrumentality doctrine does not depend solely upon initial consent to use of the vehicle, but whether a conversion occurred prior to the negligent use such that the initial consent is vitiated and the owner is relieved of liability.  See Hertz Corp. v. Jackson, 617 So. 2d 1051 (Fla. 1993).

Based upon the foregoing, the appellate court held that the bicyclist met his burden of proof when he presented evidence that the agency voluntarily relinquished control of the vehicle to the renter.  Thereafter, the burden shifted to the agency to prove that the driver’s operation of the vehicle constituted conversion or theft sufficient to relieve the agency of liability for damages arising from the vehicle’s use.  The appellate court held that a mere showing that the driver was operating the vehicle without the agency’s knowledge or consent is not sufficient to meet that burden.  Because the agency did not present evidence to establish conversion and because the parties stipulated to the unavailability of any such evidence, the appellate court held that the trial court erred in directing a verdict for the agency.

One judge dissented, stating that it was the bicyclist’s burden to establish that the driver was operating the vehicle with the agency’s consent and that such a burden always has rested with the plaintiff.  The dissent suggested that the majority’s opinion created a presumption of consent in all cases, rebuttable by the owner upon a showing of conversion and that such a holding is a change in the law that only the Florida Supreme Court is authorized to make.

Dockery v. Enterprise Rent-A-Car Co.,
26 Fla. L. Weekly D2215 (Fla. 4th DCA Sept. 12, 2001).