Anthony Newton v. Caterpillar Financial Services Corporation

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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