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“One who supplies directly or through a third person a chattel for 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 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.”

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“One who supplies directly or through a third person a chattel for 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 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 v. K-Mart Corp., 697 So. 2d 1200, 1202, 1208 (Fla. 1997) (citing Section 390 of the Restatement (Second) of Torts (1965) and recognizing Negligent Entrustment as a cause of action).

Very few courts outline the elements of a cause of action for Negligent Entrustment. As a result, below you will find those cases that do, and those cases that provide a robust discussion of the claim.

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FLORIDA STATE COURTS

Florida Supreme Court: Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1202 (Fla. 1997) (listing the elements).

First District: Gorday v. Faris, 523 So. 2d 1215, 1217 (Fla. 1st DCA 1988) (discussing the cause of action).

Second District: Weber ex rel. Estate of Weber v. Marino Parking Sys., Inc., 100 So. 3d 729, 730-31 (Fla. 2d DCA 2012) (discussing the cause of action).

Fourth District: Fina v. Hennarichs, 19 So. 3d 1081, 1085 (Fla. 4th DCA 2009) (listing the elements).

Fifth District: Mullins v. Harrell for Use & Benefit of Auto Owners Ins. Co., 490 So. 2d 1338, 1340 (Fla. 5th DCA 1986) (listing the elements).

FLORIDA FEDERAL COURTS

Southern District: In re Gozleveli, 2015 WL 3917089, *3 (S.D. Fla. June 25, 2015) (listing the elements); Seale v. Ocean Reef Club, Inc., 2013 WL 4647218, *7 (S.D. Fla. Aug. 29, 2013) (listing the elements); Brown v. Seebach, 763 F. Supp. 574, 581-82 (S.D. Fla. 1991) (discussing the cause of action).

Middle District: Stolinas v. Palmer, 512 F. Supp. 3d 1264, 1268 (M.D. Fla. 2021) (listing the elements);  Rhinehart v. Alamo Fin., LP, 2009 WL 10670150, *2 (M.D. Fla. Jan. 6, 2009) (listing the elements).

REFERENCES

Restatement (Second) of Torts § 390 (1965).

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2 Defenses to Claim for Negligent Entrustment

1. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 1.
   
   
2. Statute of Limitations: 95.11(3), Fla. Stat. (four years).
   
   
3. Knowledge or privity is necessary to be liable for negligent entrustment. Matter of Offshore of the Palm Beaches, Inc., 2011 WL 13228105, *1 (S.D. Fla. Feb. 16, 2011); Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060, 1064 (11th Cir. 1996).
   
   
4. An exception for a negligent entrustment claims related to car accidents is that: “If the driver were found not to be negligent, the owner could not be held vicariously liable.” Sanchez v. Disc. Rock & Sand Inc., 2022 WL 832429, *7 (S.D. Fla. Feb. 9, 2022)(citing Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. 2d DCA 1977))(emphasis added).
   
   
5. “[F]oreseeability of harm, rather than ownership, determine[s] whether an action exist[s] for negligent entrustment.” Matter of the Complaint of Gozleveli, 2015 WL 12549148, *3 (S.D. Fla. Mar. 31, 2015) (citing Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1205 (Fla. 1997))(emphasis added).
   
   
6. “Because of the damage cap, a negligent entrustment or hiring claim can now subject the employer to additional damages in excess of their vicarious liability, restricted to the employer’s percentage of fault under comparative negligence principles.” Murray v. Britton, 2022 WL 17820387, *3 (M.D. Fla. Dec. 20, 2022)(emphasis added); Trevino v. Mobley, 63 So. 3d 865, 867 (Fla. 5th DCA 2011).
   
   
7. “[A]n essential element of a negligent entrustment cause of action is that the person charged with liability have a superior right to control the property.” Weber ex rel. Estate of Weber v. Marino Parking Sys., Inc., 100 So. 3d 729, 730 (Fla. 2d DCA 2012) (citation omitted)(emphasis added).
   
   
8. “For a claim of negligent entrustment to properly lie, the defendant must be negligent (i.e., he knew or should have known) at the time of the initial entrustment, not after the fact.” Ruano v. Water Sports of Am., Inc., 578 So. 2d 385, 386 (Fla. 3d DCA 1991)(emphasis added).
   
   
9. “[T]ort liability in Florida is premised on pure comparativenegligence, which means that a jury should apportion fault between the plaintiff, defendant, and any third parties alleged to have been at fault, and render an award based on a defendant’s percentage of fault in causing an injury.” Williams v. Davis, 974 So. 2d 1052, 1061 n.1 (Fla. 2007); Fla. Stat. § 768.81(2).
   
   
10. For negligence claims that accrue on or after March 24, 2023, Florida will apply a comparative negligence standard that barsa plaintiff from recovery if the plaintiff is more than fifty (50) percent at fault. §768.81(6), Fla. Stat. (2023).
    
    
11. Assumption of the riskwill diminish the plaintiff’s recovery through comparative negligence. Blackburn v. Dorta, 348 So.2d 287, 293 (Fla. 1977)(holding that “hold that the affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence enunciated in Hoffman v. Jones.”); Tillman v. C.R. Bard, Inc., 96 F. Supp. 3d 1307, 1353 (M.D. Fla. 2015); see also, Restatement (Second) of Torts § 496 (1965).
    
    
12. Plaintiff’s contributory negligenceserves to diminish the recovery of damages through principles of comparative negligence, by apportioning defendant’s degree of negligence against that of the plaintiff. Hoffman v. Jones, 280 So.2d 431, 436 (Fla. 1973); Melton v. Century Arms, Inc., 243 F. Supp. 3d 1290, 1300 (S.D. Fla. 2017); see also 768.81, Fla. Stat.
    
    
13. Plaintiff’s injuries resulted from an intervening, supersedingSerrano v. Dickinson, 2023 WL 3985021, *3 (Fla. 4th DCA June 14, 2023); Golden Gate Homes, LC v. Levey, 59 So.3d 275, 281 (Fla. 3d DCA 2011); see also, Restatement (Second) of Torts §§ 440, 441 (1965).
    
    Execution of a valid release is an absolute bar to liability. Harrell v. BMS Partners, LLC, 350 So. 3d 361, 365 (Fla. 4th DCA 2022); Bruce v. Heiman, 392 So.2d 1026, 1026 (Fla. 5th DCA 1981); Beck-Ford Constr., LLC v. TCA Global Credit Master Fund, LP,240 F. Supp. 3d 1256, 1279 (S.D. Fla. 2017).
    
    
14. Patent danger, also known as the “open and obvious hazard doctrine,” is an absolute bar to liability when plaintiff’s negligence claim is premised on failure to warn, and otherwise serves as a defense to reduce the defendant’s liability through principles of comparative negligence when plaintiff failed to exercise reasonable care under the circumstances. g., Pozanco v. FJB 6501, Inc., 346 So. 3d 120, 124 (Fla. 3d DCA 2022); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1486-87 (11th Cir. 1994); see also Belik v. Carlson Travel Grp., Inc., 864 F. Supp. 2d 1302, 1308 (S.D. Fla. 2011)(stating that, generally, a defendant only has a duty to warn of dangers that are not open and obvious).
    
    
15. The impact rulerequires that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.”  g., R.J. v. Humana of Fla, Inc., 625 So.2d 360, 362 (Fla. 1995)(citation omitted). Exceptions to the impact rule include “a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding the application of the impact rule” (Rowell v. Holt, 850 So.2d 474, 478 (Fla. 2003)) including “intentional torts, such as defamation, invasion of privacy, and intentional infliction of emotional distress” (Florida Dept. of Corrections v. Abril, 969 So.2d 201, 207 (Fla. 2007)) and freestanding torts such as wrongful birth (id.),  where “a psychotherapist has created a fiduciary relationship and has breached a statutory duty of confidentiality to his or her patient” (Gracey v. Eaker, 837 So.2d 348, 357 (Fla. 2002)), and claims “for a breach of confidentiality in negligently disclosing the results of HIV testing.” Abril, 969 So.2d at 208).
    
    
16. Consentis a defense to negligence claims. Restatement (Second) of Torts § 892 (1965).
    
    
17. The economic loss rule, which is limited to product liability actions, bars tort claims in product liability actions where a contract exists and only the product is damaged. Tiara Condominium Ass’n v. Marsh & McLennan Cos., Inc., 110 So.3d 399, 400 (Fla. 2013).
    
    
18. Tort actions are generally barred where the defendant has not committed a breach of duty that is separate and independentfrom a breach of contract.  g.,Tiara Condominium Ass’n v. Marsh & McLennan Cos., Inc., 110 So.3d 399, 408 (Fla. 2013)(Pariente, J., concurring); Island Travel & Tours, Ltd., Co. v. MYR Independent, Inc., 300 So.3d 1236, 1239 (Fla. 3d DCA 2020).
    
    
19. Good Samaritansare immune from civil liability. § 768.13, Fla. Stat. “The immunity given under [§ 768.13] to a person who gratuitously renders aid to an injured person is conditioned upon that person rendering aid ‘as an ordinary reasonably prudent person.’” A. Fitness Int’l, LLC v. Mayer, 980 So.2d 550, 561n.2 (Fla. 4th DCA 2008).
    
    
20. Military contractorsare saved from liability when the contractor (a) had no or minimal input in the design of the product or warned the military of the product’s risks and notified the military of alternative designs then reasonably known by the contractor, and (b) the military authorized the contractor to proceed despite the product’s dangerous design. Dorse v. Armstrong World Indus., Inc., 513 So.2d 1265, 1269 (Fla. 1987).
    
    
21. Product misusewill diminish the plaintiff’s recovery through comparative negligence. See Cerrato v. Nutribullet, LLC, No. 8:16–cv–3077–T–24 JSS, 2017 WL 5164898, at *3 (M.D. Fla. Nov. 7, 2017);Standard Havens Products, Inc. v. Benitez, 648 So.2d 1192, 1197 (Fla. 1994).
    
    
22. Statutory Negligencerequires showing that plaintiff (a) is a member of class for which protection was intended, (b) suffered an injury which the statute was designed to prevent and (c) violation of the statute proximately caused the injury. Vogel v. Cornerstone Doctors Condo. Ass’n, Inc., 299 So. 3d 1170, 1177 (Fla. 2d DCA 2020); Vitrano v. Fla. Power & Light Co., 190 So. 3d 89, 92 (Fla. 4th DCA 2015); DeJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198, 201 (Fla. 1973).
    
    
23. Section 0755, Fla. Stat.,is procedural in nature, and applies retroactively, requiring that [in a slip and fall action] the plaintiff prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Glaze v. Worley, 157 So. 3d 552, 555 (Fla. 1st DCA 2015); Kenz v. Miami-Dade Cty. & Unicco Serv. Co., 116 So.3d 461, 466 (Fla. 3d DCA 2013).
    
    
24. Parentsare not liablefor the torts of their minor children except: “(1) where the parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others; (2) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs, or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible.” Snow v. Nelson, 475 So.2d 225, 226 (Fla. 1985); Gissen v. Goodwill, 80 So.2d 701, 703 (Fla. 1955); Perez v. Rodriguez, 204 So.3d 92, 95 (Fla. 4th DCA 2016).
    
    
25. Florida’s Alcohol and Drug Defense, as set forth in Section 768.36(2), Fla. Stat., provides in pertinent part that “[i]n any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiff’s normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.” Main St. Entm’t, Inc. v. Faircloth, 342 So. 3d 232, 237 (Fla. 1st DCA 2022); Kempton v. McComb, 264 So.3d 1180, 1181 (Fla. 5th DCA 2019); see alsoBryant v. Mascara, No. 2:16-CV-14072-ROSENBERG/REINHART, 2018 WL 3862650, at *1 (S.D. Fla. Aug. 14, 2018).

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