Supreme Court of Florida
____________
No. SC17-67
____________
ANTHONY NEWTON,
Petitioner,
vs.
CATERPILLAR FINANCIAL SERVICES CORPORATION, et al.,
Respondents.
September 27, 2018
QUINCE, J.
Petitioner Anthony Newton seeks review of Newton v. Caterpillar Financial
Services Corp., 209 So. 3d 612 (Fla. 2d DCA 2016), on the ground that it expressly
and directly conflicts with decisions of this Court and other district courts.1 We
have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we
1. The decision below conflicts with decisions of this Court and other
district courts holding that different kinds of motorized equipment comparable to
loaders are dangerous instrumentalities. See, e.g., Rippy v. Shepard, 80 So. 3d 305
(Fla. 2012) (farm tractor); Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984) (golf
cart); Sherrill v. Corbett Cranes Servs., 656 So. 2d 181 (Fla. 5th DCA 1995)
(crane); Lewis v. Sims Crane Serv. Inc., 498 So. 2d 573 (Fla. 3d DCA 1986)
(construction hoist); Eagle Stevedores, Inc. v. Thomas, 145 So. 2d 551 (Fla. 3d
DCA 1962) (tow-motor).
find that loaders are dangerous instrumentalities and quash the district court
decision below.
FACTS
C&J Bobcat and Hauling, LLC, hired Anthony Newton as an independent
contractor to assist its agent, Charles Cram, in clearing debris from a private lot in
a residential area. Newton, 209 So. 3d at 613. Cram and Newton used a
multi-terrain loader to clear the lot. Id. Cram leased the loader from Caterpillar
Financial Services Corporation (Caterpillar) and transported the loader to the
private lot in a box trailer. Id. Cram disencumbered the box trailer and briefly
drove the loader on the street before driving it onto the private lot. Id. Cram and
Newton used the loader to dump debris into another box trailer for disposal. Id.
The disposal trailer was parked on a public street.
While trying to move a tree stump into the disposal trailer, Cram asked
Newton to climb inside and pack down the debris. Id. While Newton was inside,
Cram released the stump from the loader’s bucket into the disposal trailer. Id.
Newton tried to warn Cram that he was still in the disposal trailer, but Cram could
not hear him. Id. As Newton attempted to climb out of the disposal trailer, the
stump rolled over his hand. Id. The stump severed Newton’s middle finger. Id.
Newton filed suit against Caterpillar, alleging that Caterpillar was liable for
the injuries he sustained from Cram’s negligent operation of the loader because the
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loader was a dangerous instrumentality. Id. at 613-14. Newton and Caterpillar
filed competing motions for summary judgment disputing whether loaders are
dangerous instrumentalities, each accompanied by affidavits from experts. Id. at
614. Newton’s expert described the physical capabilities of loaders, including the
ability to lift 2300 pounds to a height of approximately 9.5 feet. Id. at 614.
Caterpillar’s expert gave statistics about the loader, including the number of
accidents involving the exact model of loader in this case which have been
reported to Caterpillar. Id. at 615. The trial court heard arguments from both
parties, found that loaders are not dangerous instrumentalities, and granted
summary judgment in favor of Caterpillar. Id. at 615-16, 618.
ANALYSIS
Whether loaders are dangerous instrumentalities is a pure question of law
and is reviewed de novo. See Rippy, 80 So. 3d at 306 (citing D’Angelo v.
Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)). As we noted in Rippy, “Florida’s
dangerous instrumentality doctrine imposes ‘vicarious liability upon the owner of a
motor vehicle who voluntarily entrusts that motor vehicle to an individual whose
negligent operation causes damage to another.’ ” Rippy, 80 So. 3d at 306 (quoting
Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000)). The “doctrine is an old and
well-settled rule that can be traced back to English common law . . . [and applies]
to objects that ‘common knowledge and common experience prove[] to be . . .
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potent sources of danger.’ ” Id. at 306-07 (quoting S. Cotton Oil Co. v. Anderson,
86 So. 629, 631 (Fla. 1920)).
Florida courts consider a variety of factors in applying the dangerous
instrumentality doctrine. Id. at 308. One of the most important factors is whether
the instrumentality is a motor vehicle. Id. Courts also consider whether the
instrumentality is frequently operated near the public, but the incident under
review need not have occurred on public property for the instrumentality to be
dangerous. Id. at 308-09. Another factor is the instrumentality’s peculiar dangers
relative to other objects that courts have found to be dangerous instrumentalities.
See Meister, 462 So. 2d at 1073. Courts also consider how extensively the
legislature has regulated the instrumentality. See id. at 1072-73. Evaluations of
each factor may be based on “common knowledge and common experience” and
should not be at odds with “the common opinion among many.” S. Cotton Oil Co.,
86 So. at 631, 633. No single factor “is determinative of whether an
instrumentality is dangerous.” Rippy, 80 So. 3d at 308. It “is based on ‘the
practical fact that the owner of an instrumentality which [has] the capability of
causing death or destruction should in justice answer for misuse of this
instrumentality by anyone operating it with his knowledge and consent.’ ” Id. at
307 (quoting Meister, 462 So. 2d at 1072).
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First, we examine whether loaders are motor vehicles. Because “ the
‘various definitions of “motor vehicle” within the Florida Statutes are not
dispositive,’ ” Newton, 209 So. 3d at 616 (quoting Harding v. Allen-Laux, Inc., 559
So. 2d 107, 108 (Fla. 2d DCA 1990)), we consult Black’s Law Dictionary. A
“motor vehicle” is: “A wheeled conveyance that does not run on rails and is self-
propelled, esp. one powered by an internal-combustion engine, a battery or
fuel-cell, or a combination of these.” Blacks Law Dictionary 1788 (10th ed. 2014).
Loaders are self-propelled, powered by an engine, and can be wheeled
conveyances. Common knowledge and plain language demonstrate that loaders,
like farm tractors and forklifts, are motor vehicles for the purpose of the dangerous
instrumentality doctrine.
Much like the farm tractors considered in Rippy, loaders are often operated
in construction settings and on public rights-of-way and are “vehicles of such size
and speed that wherever they are operated, they can be dangerous to those persons
who come into contact with them.” Rippy, 80 So. 3d at 309. The undisputed facts
of this case confirm that loaders are frequently used to clear private lots near public
streets. This Court is persuaded that, while multi-terrain loaders may operate in
public less often than their counterparts, loaders operate near the public frequently.
Further, as we noted in Rippy, “the dangerous instrumentality doctrine is not
limited to motor vehicles being operated on a public highway and may apply to a
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motor vehicle operated on private property.” Rippy, 8 So. 3d at 307 (citing
Meister, 462 So. 2d at 1073).
Loaders are heavy pieces of construction equipment weighing thousands of
pounds. Loaders can move heavy loads across streets and unimproved surfaces.
Multi-terrain loaders have tank-style treads designed for use on unimproved
surfaces, while skid steer loaders have large tires designed for improved surfaces.
Some loaders, like the one in this case, can be converted from treads to tires.
Attached to their front ends, loaders have buckets in which heavy items can be
lifted above the height of the average person. The bucket can obstruct operator
visibility because loaders are operated from within cages in their centers.
The loader in this case weighed 8000 pounds and had treads at the time of
the accident, though it could be modified to operate on tires. Newton, 209 So. 3d
at 614-16 & n.2. Newton’s expert averred that the loader could lift 2300 pounds to
a height of 9.5 feet and that its design restricted the operator’s visibility. Id. at 615.
His affidavit also indicated “that the loader’s potential momentum placed it within
a range of momentums associated with other dangerous instrumentalities.” Id.
Common knowledge demonstrates that a machine as powerful as a loader has the
ability to cause serious injury when operated near or over a public street, just like
any motor vehicle operated on a public highway. As the Second District noted
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below, “the loader is a serious piece of machinery with the capacity to do great
harm.” Newton, 209 So. 3d at 618.
Finally, we hold that Newton’s status as an independent contractor does not
exclude him from protection under the dangerous instrumentality doctrine. The
doctrine has not treated construction workers as separate from the general public
when injured in a public place. See N. Trust Bank of Fla., N.A. v. Constr. Equip.
Int’l, 587 So. 2d 502, 504 (Fla. 3d DCA 1991); cf. Canull v. Hodges, 584 So. 2d
1095, 1097 (Fla. 1st DCA 1991). Newton may not have been “a member of the
unsuspecting public,” Newton 209 S0. 3d at 616, but his accident occurred on a
public street. Newton’s employment does not disqualify his accident from
coverage under the doctrine.
CONCLUSION
Based on the foregoing, we determine that a loader is a dangerous
instrumentality as a matter of law. Accordingly, we quash the decision below and
remand to the district court with instructions that this case be further remanded to
the trial court for an order granting summary judgment in favor of Newton.
It is so ordered.
PARIENTE, LEWIS, and LABARGA, JJ., concur.
LAWSON, J., dissents with an opinion, in which CANADY, C.J., and POLSTON,
J., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
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LAWSON, J., dissenting.
I respectfully dissent because this Court does not have jurisdiction to decide
this case. To confer jurisdiction on this Court on the basis of a conflict, a decision
of a district court must “expressly and directly conflict[] with a decision of another
district court of appeal or of [this Court] on the same question of law.” Art. V,
§ 3(b)(3), Fla. Const. To meet this standard, the cases alleged to be in conflict
must not be distinguishable from one another, cf. Fla. Dep’t of Children &
Families v. Davis Family Day Care Home, 160 So. 3d 854, 855 n.1 (Fla. 2015)
(opining that the district court’s certification of conflict was misguided because the
two cases were distinguishable), and they must decide—meaning reach a holding
on—the same question of law, see Ciongoli v. State, 337 So. 2d 780, 781 (Fla.
1976) (discharging jurisdiction where “the conflicting language [was] mere obiter
dicta”). Also, the conflict must “appear within the four corners of” the district
court’s decision. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986).
The majority has accepted this case on the basis of alleged conflict between
Newton v. Caterpillar Financial Services Corp., 209 So. 3d 612 (Fla. 2d DCA
2016), which holds that a loader is not a dangerous instrumentality, and the
following set of decisions recognizing diverse pieces of machinery as dangerous
instrumentalities: Rippy v. Shepard, 80 So. 3d 305 (Fla. 2012) (farm tractor);
Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984) (golf cart); Sherrill v. Corbett
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Cranes Services, 656 So. 2d 181 (Fla. 5th DCA 1995) (crane); Lewis v. Sims Crane
Service Inc., 498 So. 2d 573 (Fla. 3d DCA 1986) (construction hoist); Eagle
Stevedores, Inc. v. Thomas, 145 So. 2d 551 (Fla. 3d DCA 1962) (tow-motor).
There is no express and direct conflict between Newton and any of these decisions.
It appears that the majority has found jurisdiction by noting the devices
deemed dangerous instrumentalities in the five listed cases, considering the loader
at issue in this case, and concluding instinctively that if these other five devices are
dangerous instrumentalities, a loader surely is as well. See majority op. at 1 note1
(explaining jurisdiction by reference to a list of items held to be dangerous
instrumentalities in other cases). Problems with this approach include that each
case addresses a different device with its own distinct characteristics, some of
which are simply incomparable to the characteristics of the construction equipment
at issue in this case, and that not all the cases even describe the characteristics of
the devices being addressed. Compare Rippy, 80 So. 3d at 309 (noting that a farm
tractor is “often seen on public highways and rights-of-way”) with Newton, 209 So.
3d at 614-15 (citing evidence that the loader “was not routinely operated on public
highways, rights-of-way, golf courses, or other improved surfaces” or designed for
that purpose); see Meister, 462 So. 2d at 1072-73 (analyzing golf carts based on
commonly known characteristics and uses); Sherrill, 656 So. 2d at 183-84
(implicitly accepting the proposition that a crane is a dangerous instrumentality
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without mentioning any of its characteristics); Lewis, 498 So. 2d at 575 (supporting
a conclusion that a construction hoist is a dangerous instrumentality by citation to
other decisions, not analysis of its characteristics); Thomas, 145 So. 2d at 551-52
(describing a “tow motor” only as “a small motor operated vehicle” and addressing
narrow arguments concerning the location of the tow motor and whether a required
license had been obtained). A related problem is that this approach was expressly
foreclosed by disclaimers this Court made in Rippy. 80 So. 3d at 308-09
(explaining that the Court’s prior conclusion that a golf cart is a dangerous
instrumentality is not “the one touchstone by which all other instrumentalities are
measured” and that the Court’s decision was not based on a simple comparison of
devices). And, as to one case, Sherrill, the assertion that the device involved is a
dangerous instrumentality is not a question of law decided in the case at all. See
generally Sherrill, 656 So. 2d at 182-86 (analyzing whether the trial court erred in
determining that a “crane operator was, a matter of law, a borrowed servant” of a
general contractor under workers’ compensation law).
To further explain these points, I will first discuss the contradiction between
this Court’s opinion in Rippy and the general approach to finding conflict that the
majority has taken in this case, and then I will address each of the five cases
specifically to show that there is no express and direct conflict, as required for this
Court to exercise jurisdiction in this case.
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In Rippy, this Court explained that a device fits within the dangerous
instrumentality doctrine when it is an “ ‘instrumentality of known qualities [that] is
so peculiarly dangerous in its operation’ as to justify” making the owner of the
device liable for damage caused when it is operated negligently by someone the
owner has entrusted with the device. 80 So. 3d at 306 (alteration in original)
(quoting S. Cotton Oil Co. v. Anderson, 86 So. 2d 629, 638 (Fla. 1920)). This
Court went on to determine whether a farm tractor should be considered a
dangerous instrumentality by considering various factors gleaned from prior
decisions, without identifying any concrete list of factors as mandatory
considerations or requiring that any particular weight be given to specific factors,
other than to say that whether the device is a “motor vehicle” is “[a] primary
factor.” Id. at 308-09.
In setting forth this loose, factor-based approach, the Rippy Court made a
special point to say that “no one test is determinative of whether an instrumentality
is dangerous.” 80 So. 3d at 308. More significantly in light of the implied
reasoning the majority offers in support of exercising jurisdiction in this case, the
Rippy opinion pointedly states the following: “[T]he contention . . . that this
Court’s ruling in Meister—that a golf cart is a dangerous instrumentality—‘sets the
bar’ low, and the resulting implication that this has become the one touchstone by
which all other instrumentalities are measured, is incorrect.” Id. (citation omitted).
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The Rippy Court drove this point home by denying that its decision was based
“simply on ‘a comparison between the device at issue [a farm tractor] and a golf
cart.’ ” Id. at 309. If, as this Court said in Rippy, there is no one test that is
determinative and comparison of devices does not suffice to answer whether a
particular device is a dangerous instrumentality, then a list of devices addressed in
prior decisions does not show express and direct conflict between those prior
decisions and a decision addressing the specific, distinct device at issue in this
case.
Thus, in light of this Court’s analysis and express disclaimers in Rippy, I
disagree with the general suggestion in the majority opinion that express-and-
direct-conflict jurisdiction is established by the bare fact that each of the listed
devices, none of which is a loader, has been determined by either this Court or
another district court of appeal to be a dangerous instrumentality. Below, I more
closely examine the five cases cited as grounds for this Court to exercise
jurisdiction to show that the decisions themselves do not contain any other basis
for finding express and direct conflict.
The first two cases, Rippy and Meister, set out the very broad rule, already
noted above, that a device is a dangerous instrumentality if its characteristics and
uses justify holding its owner liable for damages caused by another person to
whom the device has been entrusted. Rippy, 80 So. 3d at 306; Meister, 462 So. 2d
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at 1072 (quoting Jordan v. Kelson, 299 So. 2d 109, 111 (Fla. 4th DCA 1974)).
Both Rippy and Meister then examine factors to decide if the particular devices at
issue, a farm tractor and a golf cart, meet this standard. Rippy, 80 So. 3d at 308-
09; Meister, 462 So. 2d at 1072-73. The factors this Court determined relevant in
its analysis of the farm tractor and golf cart consisted of the following: (1) whether
the device is a motor vehicle, Rippy, 80 So. 3d at 308; Meister, 462 So. 2d at 1072;
(2) the extent to which the device is legislatively regulated, Rippy, 80 So. 3d at
308; Meister, 462 So. 2d at 1072; (3) the likelihood that members of the public will
come into contact with the device in operation, Rippy, 80 So. 3d at 308-09,
Meister, 462 So. 2d at 1073; and (4) how similar the accidents and injuries
associated with the device are to the accidents and injuries caused by automobiles,2
Rippy, 80 So. 3d at 309; Meister, 462 So. 2d at 1073. In addition, in Rippy, this
Court considered the physical characteristics of farm tractors. 80 So. 3d at 309
(considering size, speed, weight, and mechanism).
In the decision on review, the Newton court recognized the factor approach
exemplified in Rippy and Meister. Newton, 209 So. 3d at 615. At the outset of its
2. The first application of the dangerous instrumentality doctrine by this
Court was to automobiles being operated on public highways. Rippy, 80 So. 3d at
307 (quoting S. Cotton Oil Co. v. Anderson, 86 So. 629, 638 (Fla. 1920)).
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discussion, the Newton court identified the factors it had determined relevant from
a thorough study of this Court’s precedent as well as district court precedent:
Whether the loader in this case is a dangerous instrumentality
presents a pure question of law that this court reviews de novo. See
Rippy v. Shepard, 80 So. 3d 305, 306 (Fla. 2012). The doctrine
imposes vicarious liability on the owner of an “ ‘instrumentality of
known qualities [that] is so peculiarly dangerous in its operation’ as to
justify application” of the doctrine. Id. (quoting S. Cotton Oil Co. v.
Anderson, 80 Fla. 441, 86 So. 629, 638 (Fla. 1920) (on petition for
rehearing)). In deciding whether something is a dangerous
instrumentality, courts consider a number of factors. “A primary
factor in determining whether an object is a dangerous instrumentality
is whether the object at issue is a motor vehicle.” Id. at 308. Courts
also evaluate the extent to which an object is regulated because
legislative regulation is a recognition of the danger posed by the use
of the evaluated instrumentality. See S. Cotton Oil Co., 86 So. at 634
(“It is idle to say that the Legislature imposed all these restraints,
regulations, and restrictions upon the use of automobiles, if they were
not dangerous agencies which the Legislature felt it was its duty to
regulate and restrain for the protection of the public.”). Another
factor is the relative danger posed by the instrumentality. See id. at
633; Festival Fun Parks, LLC v. Gooch, 904 So. 2d 542, 546 (Fla. 4th
DCA 2005) (noting that accidents involving go-karts causing serious
injury were “pretty rare”). The physical characteristics of the object
are also pertinent to the dangerous instrumentality inquiry. See Rippy,
80 So. 3d at 309; Harding v. Allen-Laux, Inc., 559 So. 2d 107, 108
(Fla. 2d DCA 1990) (describing a forklift as a “large[ ], four-wheel
vehicle with protruding steel tusks”). Courts also consider whether
the instrumentality at issue is operated in close proximity to the
public. Compare Harding, 559 So. 2d at 108 (considering forklift
involved in accident with a motor vehicle on public highway), with
Canull v. Hodges, 584 So. 2d 1095, 1097 (Fla. 1st DCA 1991) (“The
road grader we are asked to classify as a dangerous instrumentality
was not licensed or regulated and was operating on an airport
construction site and its operator was apparently a fellow employee of
the plaintiff.” (emphasis added)).
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Id. at 614. The Newton court then concluded, correctly, that “[n]o single factor is
determinative of the inquiry, and this list of factors is not exhaustive,” but
“[r]ather, these factors exist to assist courts in determining whether an application
of the dangerous instrumentality doctrine is justified.” Id. The Newton court
applied each of the factors it identified, with an analysis specific to the loader at
issue in this case. Id. at 615-18. Because the Newton court applied a list of factors
consistent with the factors this Court relied on in Rippy and Meister and was
considering a different device from those analyzed in Rippy and Meister, there is
no express and direct conflict with either Rippy or Meister.3
3. In his jurisdictional brief, Newton argued conflict with Rippy and Meister
because, among other reasons, the Newton court considered it significant that this
particular loader was being operated on a private lot at the time of the injury and
that Newton, the injured party, was not a “member of the unsuspecting public,”
Newton, 209 So. 3d at 616, while this Court in Rippy and Meister held that
operation on public highways is not a requirement of the dangerous instrumentality
doctrine, Rippy, 80 So. 3d at 309; Meister, 462 So. 2d at 1073. However, it is clear
that the Newton court did not find the loader’s operation on private property at the
time of the accident dispositive. The court stated that “[n]o single factor is
determinative of the inquiry” and, besides considering where the loader was being
used at the time of the accident, pointed out that there “was no evidence that these
loaders were routinely operated in close proximity to the public.” 209 So. 3d at
614, 617. Meister and Rippy make clear that it is relevant whether a particular
device tends to be operated in close proximity to the public, and in fact, Meister’s
holding is limited to golf carts that are being operated on golf courses. Meister,
462 So. 2d at 1071, 1073 (holding that “a golf cart that is being operated on a golf
course is included within the dangerous instrumentality doctrine” and concluding
that golf carts pose “sufficient danger to the public” to justify applying the doctrine
because golf carts and courses are “extremely prevalent” in this state, golf carts
cause similar accidents and injuries to other motor vehicles, and the Legislature has
found it necessary to regulate them); Rippy, 80 So. 3d at 309 (noting that farm
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After citing Rippy and Meister as decisions in conflict with Newton, the
majority cites three district court cases: Lewis, Sherrill, and Thomas.
As for Lewis, the determination of conflict could not have been based on
anything but a conclusory comparison of devices. The Lewis court’s conclusion
that the device at issue, a “construction hoist, or elevator,” 498 So. 2d at 574, is a
dangerous instrumentality is supported by one sentence of explanation: “It has
been held that construction hoists are inherently dangerous instrumentalities,” id. at
575. The Lewis court’s bare conclusion that a construction hoist is a dangerous
instrumentality does not conflict with the Newton court’s conclusion that the loader
used in this case is not. Not only does an intuitive comparison of the two devices
lead to this conclusion of lack of conflict, but the guidance this Court set out in
Rippy indicates that more than an intuitive comparison is required. See Rippy, 80
So. 3d at 308-09. Because the Lewis decision offers nothing more than a
conclusion that construction hoists qualify as dangerous instrumentalities, it
tractors are most often, but not always, operated on farm property and that they
“frequently operate along state roads and other public areas”)). The Newton
court’s exercise of taking into account, as one subfactor among many, that the
device at issue—which, unlike farm tractors and golf carts, was not shown to be of
the type that frequently operates in public spaces—was being operated on a private
lot at the time of the accident, does not expressly and directly conflict with Rippy,
Meister, or any other decision that has been cited to us.
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provides no basis upon which we could conclude that there is an express and direct
conflict of decisions and remain consistent with the Rippy analysis.
The conclusion that the Sherrill decision expressly and directly conflicts
with Newton suffers the same failing and more. It appears that the majority has
decided that a bare assertion in Sherrill that a crane is a dangerous instrumentality
conflicts with the Newton court’s factor-based conclusion that a loader is not a
dangerous instrumentality. See majority op. at 1 note 1. Not only is this analysis
invalid because Rippy establishes that a simple comparison is an illegitimate basis
for a decision on the merits—and, a fortiori, for a finding of conflict—, 80 So. 3d
at 308-09, but it is invalid because the Sherrill court did not even conclude that a
crane is a dangerous instrumentality. See generally Sherrill, 656 So. 2d at 182-86.
Whether a crane is a dangerous instrumentality was not a question of law presented
to the Sherrill court to decide. See generally id.
The sole issue decided by the Sherrill court was whether the trial court erred
in determining that a “crane operator was, as a matter of law, a borrowed servant”
of a general contractor under workers’ compensation law. 656 So. 2d at 182-83.
The general contractor had leased the crane, and the lease for the crane required the
lessor to “[f]urnish” an operator as well. Id. at 182. The crane operator was
involved in an accident with the crane that injured an employee of the general
contractor. Id. The employee obtained workers’ compensation benefits from the
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general contractor and sued both the owner of the crane and the employer of the
crane operator for negligence. Id. The Sherrill court explained that if the crane
operator was properly considered a “borrowed servant” (an issue improperly
decided on summary judgment by the trial court), the crane operator’s employer
and the crane’s owner would be entitled to workers’ compensation immunity. 656
So. 2d at 182-83.
The impression that the Sherrill court concluded that a crane is a dangerous
instrumentality seems to arise from this language:
[H]ad [the crane owner] simply leased the crane to [the general
contractor], it would clearly be immune from liability under the
worker’s compensation statutes since its purported liability under
these circumstances would be based solely on the ‘dangerous
instrumentality’ doctrine. Florida has long recognized that a worker
injured by a leased dangerous instrumentality operated by a fellow
worker is limited to no more recovery than that permitted by the
worker’s compensation statutes.
656 So. 2d at 183. The Sherrill court then explained that the facts of the case
indicated that the company that owned the crane “may have become either a
subcontractor or an independent contractor,” which would negate the applicability
of workers’ compensation immunity, but that the crane owner argued that the
“borrowed servant” doctrine applied, making the general contractor liable for the
crane operator’s activities and causing the general contractor’s workers’
compensation insurance to extend to any liability for the injury the crane operator
caused. Id. at 183-84. The Sherrill court quoted from two cases explaining that “a
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worker injured by a leased dangerous instrumentality operated by a fellow worker
is limited to no more recovery than that permitted by the worker’s compensation
statutes.” Id. at 183 (quoting Halifax Paving, Inc. v. Scott & Jobalia Construction
Co., 565 So. 2d 1346, 1347 (Fla. 1990)); see also id. at 184 (“When a dangerous
instrumentality is leased to an employer, the lessor shares the employer’s worker’s
compensation immunity from suit by employees.” (quoting Larzelere v. Employers
Ins. of Wausau, 613 So. 2d 510, 511 (Fla. 2d DCA 1993)). Essentially, the Sherrill
court explained that, even though the crane was a dangerous instrumentality—
which was apparently not in dispute and, therefore, not a question of law decided
by that court—the injured party’s recovery was limited by the workers’
compensation statutes if the crane operator ultimately was proven as a matter of
fact to be a “borrowed servant.” See id. at 183-84, 186. The crane’s status as a
dangerous instrumentality was a conceded point acknowledged in passing and not
a decision of the court on a question of law. Therefore, it does not support a
finding of express and direct conflict.
Finally, Thomas does not expressly and directly conflict with Newton. The
Thomas decision’s entire discussion of the dangerous instrumentality issue consists
of the following:
Appellee, plaintiff below, while standing near a lunch truck in a
street end or extension located in a harbor dock area, was struck and
injured by a small motor operated vehicle referred to as a ‘tow-motor.’
The vehicle was owned by the corporate defendant and operated by
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the individual defendant with the former’s knowledge and
consent. . . . On appeal, it is contended that the dangerous
instrumentality doctrine as referable to motor vehicles was not
applicable because the vehicle involved was not licensed and because
the accident did not occur on a publicly maintained street or
thoroughfare. . . .
On the evidence, the jury was entitled to find that the injury
occurred on a public street or highway maintained by the city for
vehicular and pedestrian traffic, and that the ‘tow-motor’ was a motor
vehicle. On those facts the dangerous instrumentality doctrine
properly applied. An owner or driver may not escape liability for
negligent operation of a motor vehicle on a public street or highway
because the required licensing of the vehicle has been omitted.
145 So. 2d at 551-52 (footnotes omitted). Thomas contains no discussion of the
factors identified in Newton, except for the operation of the vehicle in proximity to
the public, but it also does not rule out consideration of these factors. See id. The
Thomas court addressed and rejected a specific, narrow argument that the tow
motor was not being operated in public and, therefore, could not qualify as a
dangerous instrumentality. Id. The Thomas court resolved the issue by concluding
that the tow motor was, in fact, being operated in public. Id. Given this
conclusion, the Thomas court did not need to answer any larger question
concerning whether operation in public is necessary or relevant to a finding that a
particular device is a dangerous instrumentality.
The Newton decision involves a much more complicated question: whether,
based on facts concerning the loader and its operation and a variety of factors
developed in case law generated after Thomas, the loader meets the general test for
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being considered a dangerous instrumentality. See Newton, 209 So. 3d at 614-18.
Unlike the situation in Thomas, the location of the device at the time of the injury
is a single point in a multi-faceted analysis arising from a full argument concerning
the legal requirements for qualifying a device as a dangerous instrumentality. See
Newton, 209 So. 3d at 614-18. The Newton court considered the location of the
loader relevant, but not dispositive. See id. at 614 (“No single factor is
determinative of the inquiry . . . .”). Its comprehensive, factor-based analysis of
the broad question presented does not expressly and directly conflict with the
Thomas court’s tacit acceptance of the proposition that a device being operated in
private is not a dangerous instrumentality and its narrow conclusion that the
particular device at issue, a tow motor, was not removed from the dangerous
instrumentality doctrine due to the nature of the street on which it was being
operated.
Further, unlike Thomas, the Newton opinion indicates that there was no
dispute that the device in question was being operated on a private lot at the time
of the injury. See Newton, 209 So. 3d at 613.4 Therefore, the narrow issue
4. The majority notes that Newton’s “accident occurred on a public street”
because that is where the disposal trailer was parked. Majority op. at 2, 7. This
observation is a conclusion derived from the record, rather than the Newton
opinion. Therefore, it does not affect the jurisdictional analysis. See Reaves, 485
So. 2d at 830 & n.3.
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addressed in Thomas—whether evidence presented at trial supported a finding that
the device was being operated in public—was not at issue in Newton.
For the foregoing reasons, none of the decisions the majority relies on as the
grounds for jurisdiction over this case satisfy the constitutional requirements for
the cited jurisdictional basis, express and direct conflict on the same question of
law. See art. V, § 3(b)(3). Therefore, I dissent.
CANADY, C.J., and POLSTON, J., concur.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
Second District - Case No. 2D15-2927
(Pinellas County)
T. Patton Youngblood, Jr. of Youngblood Law Firm, St. Petersburg, Florida; and
Steven L. Brannock and Thomas J. Seider of Brannock & Humphries, Tampa,
Florida,
for Petitioner
Hala Sandridge and Blake J. Delaney of Buchanan Ingersoll & Rooney, PC,
Tampa, Florida,
for Respondent Caterpillar Financial Services Corporation
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Anthony Newton v. Caterpillar Financial Services Corporation
Combined Opinion