Our client was a passenger in a Dodge Dakota truck owned and leased by Enterprise Leasing Company, when it overturned two to three times on the highway at high speed. The driver, who had rented the truck from Enterprise, had fallen asleep at the wheel. Our severely injured client was airlifted to Shands Hospital, in Gainesville, Florida.
We filed suit against the uninsured driver and Enterprise. We alleged that Enterprise negligently entrusted its truck to the driver. The facts forming the basis of this allegation against Enterprise:
- The driver had a suspended Florida drivers license at the time of the lease transaction. While the driver presented to the Enterprise agent what appeared to be a facially valid Texas drivers license, it is unlawful to operate a vehicle in Florida when that driver has a suspended license in any state. Enterprise failed to perform a simple and inexpensive computer search to determine if the driver had a suspended license.
- The credit card the driver presented to the Enterprise agent was rejected. Enterprise nevertheless rented the vehicle, in violation of its own policies and procedures, which called for the production of other forms of proof of personal responsibility.
Once upon a time, rental car companies could be held vicariously liable for injuries caused by the negligent operation of their vehicles by authorized drivers. (Whether vicarious liability applied in a state was a matter of state law. Florida is a vicarious liability state. Vicarious liability has been recognized in Florida since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Under this doctrine, a vehicle owner is liable without fault for damages caused by the negligent operation of his or her vehicle by a consensual driver.) As to rental agencies, this standard ended in 2005, when a Republican Congress, at the urging of then-President George Bush, passed the so-called Graves Amendment. The Graves Amendment substituted federal law for state law, providing blanket immunity to rental companies from vicarious liability. (So much for states’ rights!)
While the Graves Amendment relieved rental companies from vicarious liability, it allowed to remain in place actions against agencies for negligent entrustment. The distinguishing feature of negligent entrustment from vicarious liability is that the owner is independently at fault in granting consensual use of the vehicle. Florida courts consistently hold that one who negligently entrusts a car to someone is liable for damages flowing from the misuse of that car. Clooney v. Geetting, 352 So. 2d 1216 (Fla. 2nd DCA 1977) (“we see no reason why this theory is not available to claimants injured in automobile accidents in this state.”) The Florida Supreme Court long ago held that because the use of a dangerous instrumentality involves such a high degree of risk of serious injury or death, the highest degree of care is required. Skinner v. Ochiltree, 5 So. 2d 605 (Fla. 1941).
Enterprise denied that it negligently entrusted its vehicle to the at-fault driver. Enterprise argued that section 322.38, Florida Statutes, limited the scope of its duty to our client, that it had no responsibility to investigate the status of the driver’s driver’s license beyond “facial validity,” contending that one’s driving record or background should not influence its decision to rent one a car, and that a declined credit card is irrelevant to a negligent entrustment claim under section 322.38 as a matter of law. (We presented evidence that poor credit is an indicia of risk recognized by rental agencies and insurance companies.) The trial court agreed with Enterprise, granting summary judgment in its favor.