Judge-Made Law: Florida’s "Dangerous Instrumentality" Doctrine

The dangerous instrumentality doctrine is nothing new in products law. What is different about Florida’s doctrine, however, is that “it is the only state to have adopted this rule by judicial decree,” as noted by the recent case Salsbury v. Kapka, 41 So. 3d 1103 (Fla. Ct. App. 2010). Other states have held that the issue is one for the jury to decide.

In Salsbury, the Court considered whether an all-terrain vehicle, or ATV, is a “dangerous instrumentality” under Florida’s tort law, a designation that would impose strict liability upon the owner of the ATV who entrusts it to a second person who in turn negligently operates it and causes injury to a third party.
Cars, as the decision pointed out, are the gold standard for dangerous instrumentality, because they are dangerous to others when used for their “designated purpose.” In a prior decision, Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984), the Florida Supreme Court designated golf carts as dangerous instrumentalities based on three factors that liken them to cars: (1) they fit the statutory definition of “motor vehicle,” (2) they are heavily regulated by statute, and (3) there is extensive evidence as to the causes and consequences of golf cart accidents.
But what of ATVs? The Court of Appeals remanded the case, because there was not enough expert testimony or evidence in the record about the nature and extent of ATV injuries. The Court pointed out the peculiar nature of Florida’s judge-made law: that to decide an issue of law, the court actually needed factual testimony:

As such, the trial court should, in theory, have been able to resolve Kapka’s motion without any specific proffer of evidence. Nevertheles, we believe Meister compels a contrary result. Evidence of a vehicle’s danger in its normal operation is essential before a court may extend the dangerous instrumentality doctrine, and the trial court’s failure to produce an evidentiary record was error.

There is a key difference between cars, and “vehicles” like ATVs and golf carts: who drives them. Laws about whether or not a driver’s license is required to operate a golf cart or an ATV vary widely (or sometimes go unenforced, in my experience), which means that minors and others who probably shouldn’t be driving a grocery cart can use them with impunity.
If Child is driving, it is likely that Parent is the owner, opening Parent up to strict liability if and when Child hurts Third Party. This is the danger from a legal standpoint, of course. And under the three-part test outlined by Florida courts, the list of “dangerous instrumentalities” has the potential to grow exponentially. It’s a good thing that it rarely snows in the Sunshine State.


  1. No snow mobiles, perhaps, but what of jetskis, skidoos, and the like?

  2. Frances G. Zacher says:


    According to our reading of this case, that is exactly the problem–these cases are being litigated piecemeal; there is no legislation on the issue of what types of vehicles, etc. warrant this type of scrutiny. It all just depends on the cases that make it before a court, and what that particular court decides to do.

    In our opinion, this is a very dangerous way to impose liability. Law, and particularly products liability law, exists not just to right "wrongs" and compensate the injured, but to provide predictability. In the realm of products law, this allows manufacturers, retailers, and distributors to arm themselves with the knowledge of what activities might open them up to some liability. With that knowledge, they can price the risk into the product, or decide what types of business or products or projects they will be involved in.

    Without that predictability, you have the potential for exactly a "Florida" situation–where a manufacturer with no prior notice as to its strict liability being held liable simply because the "wrong" plaintiff was hurt. This result is unpredictable and intolerable.