Samuel M. Depriest and Dorothy Depriest v. Richard Greeson, as Personal etc.
213 So. 3d 1022
Fla. Dist. Ct. App.2017Background
- Decedent lived with his adult daughter; his car and keys were kept at her house and she occasionally drove it with his permission while he was alive. There was no evidence he authorized post-death use.
- About a month after Decedent died, his daughter — driving Decedent’s car — collided with a disabled vehicle occupied by Appellants, allegedly causing additional injury.
- Appellants sued the estate, alleging vicarious liability under Florida’s dangerous instrumentality doctrine based on implied consent to the daughter’s use and the personal representative’s (stepson’s) purported control.
- The nominated personal representative (stepson) took the car title to a probate attorney while in Florida for the funeral but did not take possession of the car or keys and testified he did not know the daughter drove the car or had permission to do so.
- Probate was opened days after the accident; letters were issued appointing the stepson as personal representative and the insurer’s proceeds from the totaled car were paid into the estate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the estate owned the car at time of accident | Estate (as title holder upon death) was owner and thus vicariously liable | Estate argued it was not the operational owner; but court found it was an estate asset | The car was an asset of the estate upon death (title vested in estate) but ownership for practical control was distinct |
| Whether implied consent (dangerous instrumentality) existed | Appellants: implied consent arises from daughter’s access to keys and stepson’s failure to act after taking title to probate counsel | Estate: no actual or implied consent; stepson had no duty to act pre-appointment and lacked knowledge | No implied consent; undisputed facts show stepson lacked knowledge and no duty to prevent use, so dangerous instrumentality claim fails |
| Whether a nominated personal representative’s authority creates pre-appointment duty to prevent use | Appellants: taking title to lawyer demonstrates authority and creates duty to act, making estate liable | Estate: Probate Code distinguishes authority from duty; no statutory duty pre-appointment; imposing one would conflict with statute | Court held authority alone does not impose a pre-appointment duty; cannot infer implied consent from inaction |
| Whether summary judgment for personal representative was appropriate | Appellants: factual inference should preclude summary judgment | Estate: undisputed facts negate an essential element (consent) of dangerous instrumentality | Summary judgment affirmed — no genuine issue of material fact on consent element |
Key Cases Cited
- Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000) (defines dangerous instrumentality doctrine and owner’s liability for voluntary entrustment)
- Sharps v. Sharps, 214 So. 2d 492 (Fla. 3d DCA 1968) (property of decedent vests in estate upon death)
- Mills v. Hamilton, 163 So. 857 (Fla. 1935) (title to personal property vests in personal representative during administration)
- Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016) (distinguishing authority to act from a statutory duty pre-appointment under relation-back doctrine)
- Ming v. Intramerican Car Rental, Inc., 913 So. 2d 650 (Fla. 5th DCA 2005) (factors for assessing implied consent in vehicle cases)
- Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999) (tipsy coachman doctrine: correct result may be upheld on any record basis)
- Dooley v. Harris, 714 So. 2d 1206 (Fla. 5th DCA 1998) (affirming summary judgment where implied consent not shown)
- Cantalupo v. Lewis, 47 So. 3d 896 (Fla. 4th DCA 2010) (summary judgment reviewed de novo in negligent entrustment context)