Florida Statutes, which limits the noneconomic damages awardable against a vehicle owner for damages caused by the negligence of a permissive user to $100,000. However, the same statue concludes with a sentence that states: “Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.” § 324.021(9)(b)3., Fla. Stat. (2006).
This law has been interpreted to mean that the injured consumer can secure more than $100,000 in the case of a permissive user against the owner if the injured consumer can establish “negligent entrustment.”
In one tragic Florida case, there was a fatal accident that occurred on the night of July 29, 2006. Twenty-year-old Heather Mobley was killed instantly when the Ford Escort she was driving was struck head-on by a Hummer H2.
The Hummer was owned by Maria and Joel Trevino and driven by their twenty-one-year-old son, Javier Trevino. At the time of the accident, the driver of the Hummer was speeding, driving without his headlights on, and passing another vehicle in a no-passing zone.
Rita Mobley, Heather’s mother and personal representative, filed a wrongful death action against Javier Trevino and his parents, Joel and Maria.
The jury awarded 5 million dollrs in non-economic damages ges; and 10 million dollars in punitive damages. On cross-appeal, Mobley argues the trial court erred by entering a directed verdict in favor of the Trevinos on her negligent entrustment claims.
The uncontradicted evidence established that Javier was driving the Hummer, and the directed verdict on that issue was proper. The award of punitive damages against Javier is affirmed because there was ample evidence to support the grounds for the award found by the jury and to support the amount awarded by the jury. There was also competent substantial evidence to support the noneconomic damages awarded
The issue on cross-appeal is a different matter. Mobley’s argument challenging the adverse directed verdict on her negligent entrustment claims is well-taken. The negligent entrustment claims were against Maria and Joel Trevino (Counts IV and V of the complaint, respectively). These claims were to be tried in a third phase of the trial, after the jury decided the issues of compensatory and punitive damages. In granting the directed verdict, the trial court found that the negligent entrustment claims were concurrent theories of liability—that is, the claims would impose no additional liability because the jury had already found Maria and Joel Trevino vicariously liable for their son’s negligence under the dangerous instrumentality doctrine (Counts II and III, respectively).
The concept relied upon by the trial court comes from Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977). The court there concluded that negligent hiring and negligent entrustment claims were properly stricken from the plaintiff’s complaint. The court recognized that such claims are generally cognizable in Florida, but it cautioned that there are circumstances in which the claims will not be allowed. The court explained:
Where these theories impose no additional liability in a motor vehicle accident case, a trial court should not allow them to be presented to the jury. The reason for this is a very practical one:
Under these theories the past driving record of the driver will of necessity be before the jury, so the culpability of the entrusting party can be determined. As was said in Dade County v. Carucci, 349 So.2d 734, 735 (Fla. 3d DCA 1977), “Ordinarily, the evidence of a defendant’s past driving record should not be made a part of the jury’s considerations.”
Here Counts II through V impose no additional liability on Anderson Mfg. Anderson has not denied ownership or permitted use of the truck driven by Geeting; therefore, it is liable for Geeting’s negligence under the vicarious liability doctrine. Since the stricken counts impose no additional liability but merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants.
Clooney was decided prior to the 1999 enactment of section 324.021(9)(b)3., Florida Statutes, which limits the noneconomic damages awardable against a vehicle owner for damages caused by the negligence of a permissive user. That provision concludes with a sentence that states: “Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.” § 324.021(9)(b)3., Fla. Stat. (2006).
Before section 324.021(9)(b)3. was enacted, a vehicle owner held vicariously liable under the dangerous instrumentality doctrine was liable to the same extent as the negligent permissive driver. Imposing direct liability against the owner for negligent entrustment in that situation would not increase the owner’s liability.
The situation changed with the advent of section 324.021(9)(b)3. The statute limits a vehicle owner’s exposure for vicarious liability, but it does not apply to limit the owner’s direct liability for his or her own negligence.
Thus, a negligent entrustment claim could subject the owner to additional liability. The liability of an owner found directly liable for negligent entrustment would still be restricted to his or her percentage of fault under comparative negligence principles, but it would not be limited by section 324.021(9)(b)3.
In the present case, the jury awarded a total of $5 million[1] in noneconomic damages in favor of Mobley and against Javier, Joel, and Maria Trevino. Maria and Joel’s vicarious liability was capped at $100,000 in accordance with section 324.021(9)(b)3.
For the reasons just explained, Mobley’s negligent entrustment claims had the potential to increase Maria and Joel’s liability for damages. Those claims should have been allowed to proceed because they were not concurrent theories of liability.