41
Fla. L. Weekly D2755aTop of Form

Torts
— Dangerous instrumentalities — Loader which caused injuries to plaintiff is
not a dangerous instrumentality — Loader does not transport persons or
property on roads of state, is not an automobile, is not substantially
regulated, does not impose a relatively high danger, and was not being operated
in close proximity to the public at time of accident — Trial court did not err
in entering summary judgment for defendant that was the owner/lessor of loader

ANTHONY
NEWTON, Appellant, v. CATERPILLAR FINANCIAL SERVICES CORPORATION; JOSHUA CRAM,
an individual; CHARLES CRAM, an individual; and C&J BOBCAT AND HAULING,
LLC, a Florida limited liability company, Appellees. 2nd District. Case No.
2D15-2927. Opinion filed December 14, 2016. Appeal from the Circuit Court for
Pinellas County; Thomas H. Minkoff, Judge. Counsel: Thomas J. Seider and Steven
L. Brannock of Brannock & Humphries, Tampa; and T. Patton Youngblood, Jr.,
of Youngblood Law Firm, St. Petersburg, for Appellant. Sarah Lahlou-Amine of
Buchanan, Ingersoll & Rooney PC, Tampa; Hala A. Sandridge of Buchanan,
Ingersoll & Rooney PC, Tampa (substituted as counsel of record); and Blake
J. Delaney and Sundeep B. Nath of Buchanan, Ingersoll & Rooney PC, Tampa,
for Appellee Caterpillar Financial Services Corporation. No appearance for
remaining Appellees.

(KHOUZAM,
Judge.) Anthony Newton appeals the final summary judgment entered in favor of
Caterpillar Financial Services. Because the piece of machinery that caused
injuries to Newton is not a dangerous instrumentality, we affirm.

Newton
was hired as an independent contractor by C&J Bobcat and Hauling, LLC, to
assist its agent, Charles Cram, in clearing debris off a private lot in a
residential area. Cram and Newton used a Bobcat model 257B3 loader to assist in
clearing the lot. C&J did not own the Bobcat 257B3 loader; rather, it
leased it from Caterpillar Financial Services. The loader was transported in a
box trailer to the residential property by Cram. Once he arrived on the lot,
Cram disencumbered the trailer and briefly drove the loader on the street
before driving it onto the private lot. Cram and Newton used the loader to dump
the debris they cleared from the lot into a box trailer for disposal. At one
point, the two were trying to move a tree stump into the box trailer. Cram was
driving the loader, carrying the tree stump in its bucket. He asked Newton to
get inside the trailer to pack down the debris that filled the trailer. While
Newton was inside the trailer, making room for additional debris, Cram released
the tree stump. Newton tried to warn Cram that he was still in the trailer, but
his voice could not be heard. He tried to climb over the wall of the box
trailer, but the tree stump dropped from the loader’s bucket and rolled back
onto Newton’s hand, severing his middle finger.

Newton
filed suit against Caterpillar, alleging that it was liable for the injuries he
sustained from Cram’s negligent operation of the loader because the loader was
a dangerous instrumentality.1 Newton and Caterpillar filed motions
for summary judgment disputing whether the loader was a dangerous
instrumentality. The motions were each accompanied by expert affidavits. The
trial court heard legal arguments from both parties and found that the loader was
not a dangerous instrumentality. It entered judgment in favor of Caterpillar.

Whether
the loader in this case is a dangerous instrumentality presents a pure question
of law that this court reviews de novo. See Rippy v. Shepard, 80
So. 3d 305, 306 (Fla. 2012). The doctrine imposes vicarious liability on the
owner of an “ ‘instrumentality of known qualities [that] is so peculiarly
dangerous in its operation’ as to justify application” of the doctrine. Id.
(quoting S. Cotton Oil Co. v. Anderson, 86 So. 629, 638 (Fla. 1920) (on
petition for rehearing)). In deciding whether something is a dangerous
instrumentality, courts consider a number of factors. “A primary factor in
determining whether an object is a dangerous instrumentality is whether the
object at issue is a motor vehicle.” Id. at 308. Courts also evaluate
the extent to which an object is regulated because legislative regulation is a
recognition of the danger posed by the use of the evaluated instrumentality. See
S. Cotton Oil Co., 86 So. at 634 (“It is idle to say that the
Legislature imposed all these restraints, regulations, and restrictions upon
the use of automobiles, if they were not dangerous agencies which the
Legislature felt it was its duty to regulate and restrain for the protection of
the public.”). Another factor is the relative danger posed by the
instrumentality. See id. at 633; Festival Fun Parks, LLC v.
Gooch, 904 So. 2d 542, 546 (Fla. 4th DCA 2005) (noting that accidents
involving go-karts causing serious injury were “pretty rare”). The physical
characteristics of the object are also pertinent to the dangerous
instrumentality inquiry. See Rippy, 80 So. 3d at 309; Harding
v. Allen-Laux, Inc., 559 So. 2d 107, 108 (Fla. 2d DCA 1990) (describing a
forklift as a “large[ ], four-wheel vehicle with protruding steel tusks”).
Courts also consider whether the instrumentality at issue is operated in close
proximity to the public. Compare Harding, 559 So. 2d at 108
(considering forklift involved in accident with a motor vehicle on public
highway), with Canull v. Hodges, 584 So. 2d 1095, 1097 (Fla. 1st
DCA 1991) (“The road grader we are asked to classify as a dangerous
instrumentality was not licensed or regulated and was operating on an
airport construction site and its operator was apparently a fellow employee of
the plaintiff.” (emphasis added)). No single factor is determinative of the
inquiry, and this list of factors is not exhaustive. Rather, these factors
exist to assist courts in determining whether an application of the dangerous
instrumentality doctrine is justified. See Harding, 559 So. 2d at
108.

With
this framework in mind, we return to the evidence reviewed by the trial court.
Caterpillar’s expert, Ron Reinholdt, provided an affidavit in support of
Caterpillar’s summary judgment motion. He noted that the loader was equipped
with a continuous rubber track which was designed for use off road or on
unimproved surfaces. He emphasized that the loader was not designed to be
primarily operated on roads and that the loader was not routinely operated on
public highways, rights-of-way, golf courses, or other improved surfaces.
Additionally, Reinholdt’s affidavit provided that Caterpillar maintained
databases containing information about reported accidents and litigation. The
databases revealed that there were seventeen total accidents reported to
Caterpillar involving the 13,326 model 257 loaders sold or leased by
Caterpillar. Ten of those accidents involved injury to the operator of the
Caterpillar, three involved injury to a technician servicing the loader, and
four involved injury to third parties. Only two of the incidents involving
third parties resulted in serious injury. Based on these statistics, Reinholdt
concluded that the general rate of incident was one in every 783 units and that
the rate of incident to third parties was one in every 3331 units. He
calculated that one third party is injured for every 1102 years of continuous
loader operation.

Newton’s
expert, George Kremer, focused on the physical characteristics of the loader
and its potential to cause harm. He opined that the loader was a dangerous
instrumentality based on the following: The loader weighed 8000 pounds and had
a maximum speed of 7.1 miles per hour. The loader was also capable of lifting
2300 pounds to heights of approximately 9.5 feet. The design of the loader,
according to Kremer, also restricted the operator’s visibility. Finally, the
loader’s rotational speed was such that it posed a danger to bystanders in its
vicinity. Kremer conducted an analysis of other instrumentalities held to be
“dangerous,” comparing the momentum of those instrumentalities to the loader.
He found that the loader’s potential momentum placed it within a range of
momentums associated with other dangerous instrumentalities.

During
argument on the summary judgment motions, Newton’s counsel reiterated the
findings of plaintiff’s expert, compared the loader to other machinery
previously held to be dangerous instrumentalities, and cited warnings in the
loader’s manual to emphasize its potential for danger. Newton also suggested
that the loader was classified as special mobile equipment under section
316.003(48), Florida Statutes (2013). He argued, based on common knowledge and
experience, that loaders of this type are frequently used in proximity to the
public. Caterpillar’s trial counsel relied on the affidavit furnished from its
expert and distinguished the cases cited by Newton. He went on to argue that
considering all of the factors identified by case law, the loader was not a
dangerous instrumentality.

We hold
that the Bobcat model 257B3 loader that caused Newton’s injury is not a
dangerous instrumentality. A primary factor in our inquiry is whether the
loader is an automobile. See Rippy, 80 So. 3d at 308. The loader
is not an automobile under Florida law. Rather, it is best classified as
“[s]pecial mobile equipment,” which is defined as “[a]ny vehicle not designed
or used primarily for the transportation of persons or property and only
incidentally operated or moved over a highway, including, but not limited to .
. . bucket loaders.” § 316.003(48). Applied here, the loader’s ability to
transport persons or property is incidental to its primary construction and
industrial functions. See § 320.01(1)(a), Fla. Stat. (2013) (excluding
special mobile equipment from the definition of motor vehicle); M.J.S. v.
State, 453 So. 2d 870, 871 (Fla. 2d DCA 1984) (“[T]he legislature does not
consider vehicles for construction use to be ‘motor vehicles’ as they have
assigned such vehicles to a ‘special’ category.”). The loader does not
“transport persons or property” on “the roads of this state.” See §
320.01(1)(a) (defining motor vehicle). Rather, the loader itself is transported
from job site to job site by C&J because the loader was not designed to be
primarily operated on public highways.2

Newton
argues that this court’s decision in Harding requires this court to find
that the loader is an automobile and a dangerous instrumentality. We reject
this argument. In Harding, the plaintiffs were operating their car when
they were involved in a collision with a forklift on a public highway. 559 So.
2d at 108. The trial court determined that the forklift was not a dangerous
instrumentality but this court reversed. Id. This court reasoned that if
a golf cart is a dangerous instrumentality, then surely the “larger,
four-wheel[ed] vehicle with protruding steel tusks is liable under this
doctrine for its operation on a public highway.” Id. (emphasis
added). This court further reasoned that while the forklift may be “special
mobile equipment” for the purposes of chapter 316, the forklift was “still
unquestionably a large vehicle powered by a motor and requiring skilled
operation.” Id. This court concluded that in determining whether
something is a dangerous instrumentality

the various definitions of
“motor vehicle” within the Florida Statutes are not dispositive. The doctrine
is not necessarily invoked by any statutory definition of motor vehicle.
Instead, it is invoked by a judicial decision that “an instrumentality of known
qualities is so peculiarly dangerous in its operation as to” justify the
doctrine.

Id.
(quoting S. Cotton Oil Co., 86 So. at 638).

Harding
does not control this case, nor does it mandate that we find that the loader is
an automobile. The Harding court did not hold that the forklift was a
motor vehicle. Rather, Harding stands for the proposition that the
“various definitions of ‘motor vehicle’ within the Florida Statutes are not
dispositive” as to whether something is a dangerous instrumentality. Id.
The court in Harding was presented with a different situation than
present here. In Harding, the forklift was operated on a public highway
and collided with an automobile driven by a member of the public. Id.
Here, the accident occurred on a private lot, and the injured party was not a
member of the unsuspecting public.

Next,
we consider the extent to which the loader is regulated. Newton cites several
statutes in arguing that the loader is heavily regulated. However, we do not
find that these statutes apply to the loader. As special mobile equipment, the
loader is exempt from some regulations designed for motor vehicles operating on
highways. See, e.g., § 316.261(1), (3)(e). Additionally, many of the
statutes would only apply to the loader if it were operated on a public
highway. See §§ 316.217(1) (imposing headlight requirements for “[e]very
vehicle operated upon a highway within this state” (emphasis added));
.535(1) (“The gross weight imposed on the highway by the wheels of any
one axle of a vehicle shall not exceed 20,000 pounds.” (emphasis added));
.614(3)(a) (defining “motor vehicle” for purpose of seat belt regulation as a
“vehicle as defined in s. 316.003 which is operated on the roadways,
streets, and highways of this state” (emphasis added)). Accordingly, the
loader is not substantially regulated.

Further,
we consider the relative danger posed by the loader. According to Caterpillar’s
expert, Ron Reinholdt, accidents involving injury are exceedingly rare —
accidents involving injury to third parties only occur once every 1102 years of
continuous loader operation. There is no record evidence to otherwise suggest
that the loader has a high accident rate. Additionally, the type of injury in
this case favors a finding that the loader is not a dangerous instrumentality.
According to Caterpillar’s databases, most incidents involved injury to the
operator of the loader. Accidents involving third parties were even rarer than
injuries to service technicians. The accident occurring in this case and the
evidence of other accidents are not akin to the type of accidents caused by the
operation of motor vehicles. See Meister v. Fisher, 462 So. 2d
1071, 1073 (Fla. 1984) (“[A] golf cart when negligently operated on a golf
course, has the same ability to cause serious injury as does any motor vehicle
operated on a public highway.”); Harding, 559 So. 2d at 108 (holding
that a forklift is a dangerous instrumentality where it was involved in a
collision with an automobile). Thus, the relative danger posed by the
instrumentality is low.

It
is true that an instrumentality such as a crane that lifts heavy objects can be
considered a dangerous instrumentality. See Scott & Jobalia
Const. Co. v. Halifax Paving, Inc. ex rel. U.S. Fid. & Guar. Co., 538
So. 2d 76, 79 (Fla. 5th DCA 1989), opinion approved of sub nom. Halifax
Paving, Inc. v. Scott & Jobalia Const. Co., 565 So. 2d 1346 (Fla.
1990). And it has been argued in this case that the loader is inherently
dangerous due to its ability to lift heavy loads. However, the loader’s
nine-foot lifting capacity is far shy of that of a crane. See Scott
& Jobalia Const. Co., 538 So. 2d at 78 (“[F]rom twenty-five feet up,
a forty-foot section of pipe fell out of the sling.” (emphasis added)). Simply
that an instrumentality may have the potential to cause severe harm by dropping
a load it has lifted is insufficient to find it is a dangerous instrumentality
— all the factors must be considered. See N. Trust Bank of Fla.,
N.A. v. Constr. Equip. Int’l, Inc., 587 So. 2d 502, 504 (Fla. 3d DCA 1991)
(“The crane in this case does not fall within the dangerous
instrumentality doctrine because the crane was in use for construction, did not
pose a sufficient danger to the public, was generally fenced and not exposed to
the general public, and was not used as a motor vehicle or commonly found on
the highways at the time of the accident.”).

Finally,
there is no evidence in the record establishing that the loader was operated in
close proximity to the public routinely or at the time of the accident. While
Newton’s counsel argued that similar loaders are “everywhere,” the arguments of
counsel are not evidence. See Collins Fruit Co. v. Giglio, 184 So.
2d 447, 449 (Fla. 2d DCA 1966) (“[I]t is axiomatic that the arguments of
counsel are not evidence.”). There was no evidence presented that these loaders
were routinely operated in close proximity to the public. Additionally, the
facts of this case do not show that this loader was operated in proximity to
the public. The accident occurred on a private lot, and the injured party was
an independent contractor hired to assist with the job. See Canull,
584 So. 2d at 1097 (affirming trial court’s determination that road grader was
not a dangerous instrumentality where a fellow employee was injured on an
airport construction site); N. Trust Bank of Fla., N.A., 587 So. 2d at
504. Thus, there is no evidence that the public is sufficiently exposed to
loaders of this type as to justify application of vicarious liability.

We
do recognize that based on its physical characteristics the loader has the
potential to cause serious injury. It weighs over 8000 pounds and can lift a
one-ton load nine feet into the air. Although it has a low rate of speed, its
sheer size and weight give it the ability to generate a substantial amount of
momentum. It is beyond question that the loader is a serious piece of machinery
with the capacity to do great harm. However, the physical characteristics of
the loader constitute only one of the factors to consider in determining
whether a piece of machinery is a dangerous instrumentality.

Accordingly,
after thorough consideration of the pertinent factors, we affirm the trial
court’s determination that the loader is not a dangerous instrumentality.

Affirmed.
(CASANUEVA and SLEET, JJ., Concur.)

__________________

1Newton
did not name Cram or C&J as defendants in his complaint. However,
Caterpillar filed a third-party complaint against Cram, his brother, and
C&J, seeking indemnification and alleging breach of contract. The
third-party complaint alleged that Cram and his brother owned C&J.

2Citing
a section of the loader’s manual on “roading” the loader, Newton argues that
the loader should be considered a motor vehicle. The manual provides that the
loader may be equipped with tires and modified to drive on the road. We reject
this argument because our analysis should focus on the loader as equipped, not
as it could be modified. See Foster v. Lee, 226 So. 2d 282, 283
(Fla. 2d DCA 1969) (holding that a trailer by itself is not a dangerous
instrumentality and reasoning that modifying the trailer by attaching a tractor
to pull it created a “new vehicle”).

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