Opinion
CASE NO: 8:99-cv-2270-T-26MAP
January 31, 2001
ORDER
This cause comes before the Court on the Defendant Cherokee Business Enterprise d/b/a Country Jeep Eagle's ("Cherokee") Motion to Dismiss Second Amended Complaint with Prejudice and supporting memorandum of law. (Dkts. 50 51) Plaintiff, Catherine Phyllis Boutilier ("Boutilier"), as parent and guardian of Loriann Boutilier ("Loriann"), filed a memorandum in response to Cherokee's Motion. (Dkt. 58)
Plaintiff omitted Defendant Chrysler Insurance Company from the Second Amended Complaint; therefore, Chrysler is voluntarily dismissed from this action.
Plaintiff's Factual Allegations
Boutilier's claims arise out of an automobile collision that occurred on May 1, 1996, in Spring Hill, Hernando County, Florida. The collision involved a 1993 Ford Probe owned by Cherokee and driven by Loriann, and a 1984 Dodge Ram 250 passenger van driven by Janet Kreischer ("Kreischer").
At the time of the accident, Loriann, a resident of Nova Scotia, Canada, was test driving the vehicle. Cherokee allegedly permitted Loriann Boutilier to test drive the vehicle unaccompanied by a sales representative or employee. Cherokee had an internal corporate policy prohibiting employees from permitting customers to test drive automobiles unaccompanied by a sales representative or employee. Boutilier alleges that Loriann had just moved to the area and was unfamiliar with the roads and highways of Hernando County. Cherokee allegedly failed to provide directions or instructions to Loriann. It is undisputed that Loriann entered an intersection in violation of the right-of-way and her vehicle collided with the vehicle driven by Kreischer. Loriann allegedly suffered serious physical injuries. The Second Amended Complaint in this action contains two counts: Count I: Negligence of Cherokee Business Enterprises and Count II: Negligent Entrustment by Cherokee Business Enterprises.
Standard
In determining whether to grant a Fed.R.Civ.P. 12(b)(6) motion, the Court shall not dismiss the claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court takes the well-pled facts of the complaint as true and construes the facts favorably to the plaintiff. See 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1368 (1990). The test is whether the facts state a legal claim.See id. If the defendant can show beyond a doubt that no set of facts could support the plaintiffs claim, the complaint will be dismissed. See id.
Discussion Negligence of Cherokee Business Enterprises (Count I)
In Count I, Boutilier alleges that due to Cherokee's internal corporate policy prohibiting employees from permitting customers to test drive automobiles unaccompanied by a sales representative or employee, Cherokee's above-described acts and omissions amount to negligence. To prevail on a negligence claim, the plaintiff must establish: (1) the defendant owed the Plaintiff a duty; (2) the defendant breached its duty; (3) the plaintiffs injury was caused by the defendant's breach; and (4) the plaintiff was damaged. See e.g. O'Keefe v. Orea, 731 So.2d 680, 684 (Fla. 1st DCA 1998). The mere fact that Cherokee had an internal corporate policy does not create a legal duty or cause a breach of that duty. See e.g., Mayo v. Publix Supermarkets, 686 So.2d 801, 802 (Fla. 4th DCA 1997) (a company's internal safety policies may be evidence of a standard of care, but they do not independently establish a standard of care for negligence); Gunlock v. Gill Hotels Co., Inc., 622 So.2d 163, 164 (Fla. 4th DCA 1993) (holding that an internal policy does not create a substantive duty to follow "the standard of conduct contained" within the policy); Metropolitan Dade County v. Zapata, 601 So.2d 239, 244 (Fla. 3rd DCA 1992) ("an internal rule does not . . . fix the standard of care."). The Court finds that Cherokee's internal policy does not establish a duty to send a sales representative on test drives nor does Cherokee's failure to follow its own internal policy, state a cause of action for negligence. However, this does not resolve the matter of whether the Defendant owed the Plaintiff a legal duty.Whether a duty of care existed is a question of law to be determined by the Court and not a question of fact for the jury to consider. See McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992). The Florida Supreme Court held that for a Plaintiff "to bring a common law action for negligence in Florida, the 'minimal threshold legal requirement for opening the courthouse doors' is finding that a defendant's alleged actions created a foreseeable 'zone of risk' of harming others." Kitchen v. K-Mart Corp., 697 So.2d 1200, 1202 (Fla. 1997) (quoting McCain, 593 So.2d at 502). In McCain, the Florida Supreme Court explained that:
Florida . . . recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. . . . 'Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon [the] defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.' . . . Each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element.McCain 593 So.2d at 503 (quoting Kaisner v. Kolb, 543 So.2d 732, 735 (Fla. 1989) (footnotes omitted)). Thus, if the defendant did not create a foreseeable zone of risk, the defendant has no duty of care to the plaintiff and the plaintiffs negligence claim would be defeated.
Boutilier fails to assert that Loriann was not lawfully licensed to drive in the United States. (Dkt. 51). Boutilier fails as a matter of law to allege any facts which would require the dealership to have a salesperson accompany her and her family on the test drive. Boutilier cannot establish that the Defendant's conduct created a "foreseeable zone of risk." Simply put, people test drive unfamiliar automobiles in unfamiliar areas every day. It is unreasonable for this Court to find that the Defendant had the ability to foresee a zone of risk given these facts; Cherokee is entitled to dismissal of Count I with prejudice.
Courts should provide an opportunity to a plaintiff to amend the complaint instead of dismissing it, if "it appears that a more carefully drafted complaint might state a claim upon which relief can be granted."Banks v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). However in the instant case, the Plaintiff has amended her complaint twice (Dkts. 17 and 50) and it is sufficient to allow only one chance to amend a complaint before the district court grants a motion to dismiss with prejudice. See id.
Negligence Entrustment by Cherokee Business Enterprises (Count II)
In Count II, the Plaintiff alleges that Cherokee negligently entrusted the 1993 Ford Probe to Loriann. Boutilier further alleges that Cherokee failed to make a reasonable determination regarding Loriann's competence to drive, especially in light of her unfamiliarity with local highways and roads and her inexperience with driving a 1993 Ford Probe. To prevail in a negligent entrustment case, the plaintiff must establish:
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.Kitchen, 697 So.2d at 1202 (quoting Restatement (Second) of Torts § 390 (1966)). Negligent entrustment "is a recognized civil cause of action in nearly every state." Id. (citing Robert M. Howard, The Negligent Commercial Transaction Tort: Imposing Common Law Liability on Merchants for Sales and Leases to "Defective" Customers, 1988 Duke L.J. 755, 759-60 (1988)).
Courts across the country have established that "at common law, a dealer who holds a motor vehicle for purposes of sale is not liable for injuries or damages from negligence in the operation of the dealer's vehicle by a prospective purchaser, or one acting for a prospective purchaser, who is seeking to determine whether to purchase such vehicle." 8 Am. Jur.2d § 708 (citing West v. Wall, 191 Ark. 856, 88 S.W.2d 63 (1935); Sproll v. Burkett Motor Co., 223 Iowa 902, 274 N.W. 63 (1937);Foley v. John H. Bates, Inc., 295 Mass. 557, 4 N.E.2d 349 (1936); Saums v. Parfet, 270 Mich. 165, 258 N.W. 235 (1935); Hill v. Harrill, 203 Tenn. 123, 310 S.W.2d 169 (1957); Flaherty v. Helfont, 123 Me. 134, 122 A. 180 (1923); Roy v. Hammett Motors, 187 Miss. 362, 192 So. 570 (1940). In Mathews v. Federated Serv. Ins. Co., 857 P.2d 852 (Or.App. 1993), the court held that an individual or entity is not negligent in entrusting a vehicle to a licensed driver simply because the driver was young or inexperienced. In Grimmett v. Burke, 906 P.2d 156, 165 (Kan.Ct.App. 1996), the court held that entrusting a vehicle to an individual with a suspended driver's license is not negligence, absent actual or imputed knowledge that the driver was incompetent or dangerous.
In Florida, however, there are only two cases involving a negligent entrustment cause of action, Home v. Vic Potamkin Chevrolet. Inc., 533 So.2d 261 (Fla. 1988) and Kitchen v. K-Mart Corp., 697 So.2d 1200 (Fla. 1997). Horne involved an automobile dealership that sold a car to an individual that the salesperson knew was an incompetent driver.Horne, 533 So.2d 261. Shortly after purchasing the vehicle, the driver caused an accident and injured a third party. See id. The Florida Supreme Court held that a dealership has no duty to investigate the competence of a prospective purchaser. See id. at 262. However, nine years later inKitchen, the Florida Supreme Court stated that the certified question discussed in Home "was narrowed and limited to the facts of the case, [and the] [c]ourt specifically did not address the broader question of the application of section 390 in Florida." Kitchen, 697 So.2d at 1203. Then, the Florida Supreme Court went on to once again apply the principles of negligent entrustment only to a specific set of facts — the selling of a firearm to an intoxicated person. The court held that negligent entrustment, as defined by Section 390, was consistent with "Florida's public policy in protecting its citizens from the obvious danger of the placement of a firearm in the hands of an intoxicated person," and "selling a fire arm to an intoxicated person satisfies the 'minimal threshold legal requirement' recognized by th[e] [c]ourt as necessary in order to bring a common law cause of action before a jury." id. at 1208.
Kitchen involves the issue of whether a retail vendor who sold a firearm to a person the vendor knew to be intoxicated, can be held liable to a third person who was injured by the purchaser. Kitchen, 697 So.2d at 1201.
Although the Florida Supreme Court has only applied the principles of negligent entrustment to narrow, specific, factual scenarios, this Court can logically find, after surveying the Florida Supreme Court and out-of-state court decisions, that Boutilier fails to satisfy the "minimal threshold legal requirement" to bring a negligent entrustment claim before a jury.
Although Boutilier urges, in Count II, that Cherokee owed her a duty to investigate the Plaintiffs incompetency to drive and that Cherokee is held to a higher standard of care due to the relationship between a dealership and prospective buyer, the Court disagrees. Cherokee has no duty to investigate or determine Loriann's competency to operate the automobile. See generally Home, 533 So.2d at 262, 263 see also 8 Am.Jur.2d Automobiles and Highway Traffic § 708 (1997) ("[i]n the absence of knowledge to the contrary, the dealer may rely on [an individual's] driver's license as evidence of the competency of the driver"). In addition, the relationship between the Cherokee and Loriann was a business relationship involving an arm's length transaction or a bailment for the mutual benefit of the parties. See Armored Car Serv., Inc. v. First Nat'l Bank of Miami, 114 So.2d 431, 434 (Fla 3rd DCA 1959) (holding that a bailment for the mutual benefit of the parties is one in which the parties contemplate some price or compensation in return for the benefits flowing from the bailment and the bailee is only liable under the standards of ordinary negligence). If a gratuitous and constructive bailment existed, the bailor would be liable for gross negligence. See id.
Boutilier desperately seeks to hold another party liable for an accident for which she was solely responsible. She simply fails to plead an facts demonstrating that any employee of Cherokee could have taken any actions to prevent the accident. Regardless, if Loriann felt uncomfortable driving a vehicle that she was unfamiliar with and driving m an area that was foreign to her she could have brought her concerns to the attention of the Cherokee sales representative. She could have even requested that a sales representative accompany her on the test drive. Loriann failed to take either measure. In light of all the foregoing, Cherokee is entitled to dismissal of the Second Amended Complaint with prejudice.
Accordingly it is ordered:
1. Defendant Cherokee Business Enterprises' Motion to Dismiss Second Amended Complaint (Dkt. 50) is granted. The Second Amended Complaint is dismissed with prejudice.
2. The Clerk shall terminate all pending motions and close this case.