The Long Arm of Punitive Damages

Punitive damages are frequently sought in all types of tort claims.  Punitive damages are those damages that are intended to punish or deter a defendant and others from engaging in willful or wanton conduct.

Since they are designed to punish and deter, punitive damages are not used to make the plaintiff whole.  As such, punitive damages do not necessarily depend upon the financial condition of the wronged party, but are rather dependent, in part, on the financial means of the party at fault who has engaged in the bad conduct.

Florida requires only a showing of gross negligence and/or willful and wanton conduct on the part of a party and does not require proof that the alleged wrongdoer had the specific intention of causing the type of harm suffered by the wronged party.  The wronged party must prove that the alleged wrongdoer was unusually careless and was in complete disregard for the possible gross and flagrant injurious consequences which may result from the wrongful conduct.

One area where a party could be found liable for punitive damages, when at first glance the party appears to be only vicariously liable, is when they are sought against a vehicle operator and owner in an automobile negligence case.  It is well settled in Florida that under the Dangerous Instrumentality doctrine, the responsibility of ensuring that a vehicle is properly operated falls on the owner of the vehicle.

The Florida Supreme Court has repeatedly held that Florida's Dangerous Instrumentality doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily and knowingly entrusts that motor vehicle to someone whose negligent operation causes damage to another.

For liability to be attributed under the Dangerous Instrumentality doctrine, the person operating the motor vehicle must be acting with the express or implied permission, knowledge, or consent of the owner.  Knowledge and consent of the owner as to the use of the motor vehicle are essential elements in establishing the owner's liability and must be proven before the owner can be held liable for damages caused by the entrusted negligent driver.

Punitive damages under the Dangerous Instrumentality doctrine are premised upon the theory that the one who creates the danger by entrusting the automobile to someone else is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation of that entrusted person.

In Trevino v. Mobley, Florida’s Fifth District Court of Appeal held that the plaintiff’s claim for active negligent entrustment could result in additional liability despite already having a claim of permissive/vicarious negligence under vicarious liability.  Trevino involved a fatal accident in which 20 year old, Heather Mobley was killed when the vehicle she was driving was struck head on. Her estate brought claims against the other driver and his parents, who owned the vehicle, including claims for negligent entrustment of the vehicle.  The defendants, Maria and Joel Trevino, entrusted their vehicle to their 21 year old son, Javier Trevino, who was speeding, driving without headlights and passing in a no-passing zone, when he collided head on with plaintiff’s daughter, Heather, who died on impact.

The trial judge directed a verdict against the plaintiff on her claim of negligent entrustment.  The jury found Javier negligent and awarded actual, $5 million in non-economic damages, and $10 million in punitive damages against Javier Trevino for his active negligence and against Maria and Joel Trevino for vicarious liability.  In the trial court’s ruling with regards to the negligent entrustment claim, it reasoned that vicarious liability and negligent entrustment were concurrent theories of liability, that the claim of negligent entrustment imposed no additional liability,  since the jury had already found Maria and Joel Trevino to be vicariously liable under the Dangerous Instrumentality Doctrine.  The trial court further ruled that the claim of negligent entrustment posed the danger of unfair prejudice because it would lead to the introduction in evidence of the son’s driving record.  The trial court relied heavily on Clooney v. Geeting for the concurrent liability theory, However, Clooney was decided before the 1999 enactment of Florida Statute 324.021(9)(b)(3).

Under Florida Statute 324.021(9)(b)3, negligent entrustment is not a concurrent theory of liability, and would thus not be subject to the statutory caps applicable to ownership liability.  As such, the negligent entrustment claim has the potential to increase a vehicle owner’s liability for damages as a result of their own independent negligence in entrusting their vehicle.  The statute limits non-economic damages awardable against a vehicle owner for damages caused by the negligence of the permissive user.  However, the statute 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". 

In reversing the trial court’s ruling, the appellate court noted that the effect of the statute was to limit a vehicle owner's exposure for vicarious liability, but not for direct liability of the vehicle owner’s own negligence in entrusting a motor vehicle to a wrongdoer.  Thus, a negligent entrustment claim could subject the owner to additional liability.

Therefore, Florida Statute 324.021(9)(b)3, would limit the permissive/vicarious liability of Joel and Maria Trevino to $100,000 as to non-economic damages.  However, the claims for negligent entrustment against Joel and Maria Trevino, if the jury finds fault on the parents, could increase those damages as those claims were predicated on active or direct negligence on the part of the parents, Maria and Joel Trevino.  And so, punitive damages can be awarded under a theory of active negligent entrustment if the jury finds that the parents’ conduct was grossly negligent, thus increasing the punitive damages award.