One of the first things any beginning probate lawyer learns is to make sure no one’s driving the decedent’s car. Why? Because the estate can get sued if the car’s involved in an accident. The source of this liability is Florida’s “dangerous instrumentality doctrine,” which the 1st DCA defined in Depriest (discuss below) as follows:

Florida’s dangerous instrumentality doctrine is a creature of common law that “imposes … vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.” Aurbach v. Gallina, 753 So.2d 60, 62 (Fla. 2000) (citing S. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 638 (1920) (On Petition for Rehearing)). An owner voluntarily entrusts a vehicle to another when it gives that person authority to operate the vehicle by “either express or implied consent.” Id. (citing Hertz Corp. v. Jackson, 617 So.2d 1051, 1053 (Fla. 1993)).

In the probate context you usually don’t have to worry about actual consent (if someone asks, the answer’s easy: NO!), if your estate’s going to get sued it’s probably because your personal representative (PR) didn’t make sure no one could do something stupid with the decedent’s car while the PR wasn’t looking, which in legal parlance translates into implied consent. According to the Depriest court, in implied-consent cases courts will focus on the following factors:

Most vehicle cases involving implied consent examine factors such as what a car owner knows about the driver’s prior use of the vehicle, the location and accessibility of the keys, the nature of any familial relationship between owner and driver, and the conduct of the parties after an accident occurs. Ming v. Interamerican Car Rental, Inc., 913 So.2d 650, 656 (Fla. 5th DCA 2005).

Depriest v. Greeson, — So.3d —-, 2017 WL 672155 (Fla. 1st DCA February 21, 2017):

The decedent in this case and his wife lived with his adult daughter. His car and its keys were kept at his daughter’s house and she occasionally drove her father’s car with his permission. About a month after her father’s death daughter was driving his car and got into an accident. The decedent’s nominated PR was a step-son who lived in South Carolina. He hadn’t been appointed PR at the time of the accident.

Because a PR has no legal duties prior to his appointment, the nominated PR in this case had no duty to prevent his step sister from driving her father’s car. That fact determined the outcome of this case, so saith the 1st DCA:

We conclude that because Decedent’s stepson had no legal duty to prevent Decedent’s daughter from using Decedent’s car, Appellants cannot demonstrate implied consent, which is an essential element of their claim under the dangerous instrumentality doctrine.

But what about Florida’s relation-back doctrine, which allows nominated PRs to act on behalf of estates even before they’re actually appointed by court order (see here). If a nominated PR has the option to act, does that mean he can get sued if he didn’t jump into action the moment dad dies? NO:

To say that implied consent arises from a nominated personal representative’s failure to act . . . is to create a duty to act prior to appointment, directly contrary to the Probate Code’s distinction between authority and duty. § 733.601, Fla. Stat.; Richard, 193 So.3d at 968–69 [see here]. Appellants’ argument could subject nominated personal representatives to liability from which the Legislature intended to shield them in the period after a death and before issuance of letters of administration formally appointing them as personal representatives. The law does not impose such a duty on facts such as those presented here.

Lesson learned?

This was an unusual case; the accident happened in the gap period between the decedent’s death and the date his estate was opened and a PR was appointed. Once a PR’s appointed, everything changes. At that point you can’t sit on your hands and hope for the best, if anyone’s going to drive the decedent’s car you better make sure the PR and all the beneficiaries (i.e., the people who can sue him) are aware of the risks and are willing to accept them. Sometimes that makes sense; usually it doesn’t. In most cases you’ll want to make sure your PR takes control of the decedent’s car and actually prevents anyone from using it. If the PR doesn’t take steps to prevent anyone from driving the decedent’s car, consent could be implied. You’ve been warned.