Torts
— Subsequent tortfeasors — Settlement and release of secured creditor who
hired independent contractor to repossess a bus in plaintiff’s possession did
not act to release, as subsequent tortfeasor, the independent contractor from
liability for coming into contact with plaintiff and injuring her during
repossession — Repossession by independent contractor did not aggravate an
earlier trespass — Because creditor owed a nondelegable duty to ensure that
repossession did not breach the peace, it was directly liable for all damages
resulting from actions of independent contractor; however initial and subsequent
tortfeasor doctrine was not applicable because creditor had no fault and would
have been permitted to seek indemnification against independent contractor —
There is no merit to claim that independent contractor’s trespass to land and
injury inflicted on plaintiff was an aggravation of a previous trespass to land

BEVERLY CESARY DANIEL, Appellant, v. JOHN B. MORRIS, ET.
AL., Appellees. 5th District. Case No. 5D14-1658. Opinion filed December 4,
2015. Appeal from the Circuit Court for Seminole County, Michael J. Rudisill,
Judge. Counsel: Ronald S. Webster, of Webster Law Group, P.A., Orlando, for
Appellant. Wilbert R. Vancol and Mary Jaye Hall, McEwan, Martinez & Dukes,
P.A., Orlando, for Appellee.

(BERGER, J.) Beverly Cesary Daniel appeals the final summary
judgment entered by the trial court in favor of Associated Investigators, Inc.
and John B. Morris, an employee of Associated Investigators. Daniel argues the
trial court erred when it determined that Associated Investigators and Morris
were subsequent tortfeasors of BankFirst and that the settlement and release of
BankFirst discharged Associated Investigators and Morris from liability. We
agree and reverse.

Daniel owned and operated Orlando Limousine, Inc., with her
business partner, Carlos Rivera.1 BankFirst held a purchase-money
security interest in a bus owned by Orlando Limousine from a loan it made to
Rivera.

After Rivera’s death, Orlando Limousine defaulted on the
loan. Thereafter, BankFirst obtained a judgment against Rivera’s estate for
$70,000 plus statutory interest. BankFirst then hired Associated Investigators
to repossess the bus. An initial attempt at repossession was unsuccessful.
However, on March 6, 2012, Morris made a second attempt. This time, when he
entered Orlando Limousine’s premises to repossess the bus, Morris allegedly
ignored Daniel’s request to leave, forced his way onto the bus, and came into
physical contact with Daniel.

Daniel filed a two-count complaint against BankFirst,
Associated Investigators, and Morris. The first count alleged negligence during
the repossession when Morris came into physical contact with Daniel and injured
her. The second count was also titled negligence, but asserted a trespass to
land and chattels (the bus) claim.

BankFirst and Daniel later reached a settlement agreement
and executed a mutual release.2 The release stated that the Estate of
Carlos Rivera satisfied the $70,000 judgment held by BankFirst against the
estate and that Daniel, individually and as personal representative of the
estate, paid BankFirst $8,000 to settle all other claims BankFirst had against
the estate. The release specifically referenced the case brought by BankFirst
against the estate and this case. The release further stated that Daniel agreed
to voluntarily dismiss her claim against BankFirst as additional consideration
for BankFirst’s release of its claims against the estate.

Thereafter, Associated Investigators and Morris filed a
motion for summary judgment, arguing that when Daniel released her claims
against BankFirst, she failed to preserve her claims against them. They
asserted that BankFirst was the initial tortfeasor and that they were
subsequent tortfeasors based on BankFirst’s earlier repossession attempt before
March 6, 2012. Associated Investigators and Morris argued that the repossession
on March 6, 2012, aggravated the earlier trespass. Daniel denied that
Associated Investigators and Morris were subsequent tortfeasors. She noted that
BankFirst paid her nothing in exchange for the release and that Associated
Investigators was hired by BankFirst as an independent contractor. Daniel
contended that the release was intended only to settle BankFirst’s claims
against Carlos Rivera’s estate and not the claims against Associated
Investigators and Morris.

The trial court granted the Appellees’ motion for summary
judgment, stating:

The
allegations against BankFirst were such that BankFirst initiated repossession
of the vehicle and that BankFirst subsequently initiated additional
repossession efforts on Plaintiff’s alleged property. The release however
failed to preserve any claims against MORRIS and ASSOCIATED in her settlement
with BankFirst. Plaintiff’s failure to preserve the claim and the mutual
release which was executed by the Plaintiff acts as a release of MORRIS and
ASSOCIATED precluding further action [against] MORRIS and ASSOCIATED which
entitles MORRIS and ASSOCIATED to Summary Final Judgment as a matter of law. See
Rucks v. [P]ushman, 541 So. 2d 673 (Fla. 5th DCA 1989), Caccavella
v. Silverman, 814 So. 2d 1145 (Fla. 4th DCA [2002]), [Univ.]
of Miami v. Francois, 76 So. 3d 360 (Fla. 3d DCA 2011).

This timely appeal followed.

We review orders granting summary judgment de novo. Volusia
Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
Daniel argues that the trial court erred in applying the initial and subsequent
tortfeasor doctrine to this case. She claims that Morris’ act of pushing her
out of a bus during the repossession was the initial and sole injury, meaning there
were no subsequent tortfeasors. Daniel contends that there was no aggravation
of the injury in this case and that, even if there was, only doctors and other
medical professionals could be subsequent tortfeasors. Associated Investigators
and Morris respond that the initial and subsequent tortfeasor doctrine has been
applied outside the context of doctors and medical professionals and quote from
the complaint to support their contention that there were at least two attempts
to repossess the bus. They argue that their first repossession attempt on
behalf of BankFirst, which occurred before March 6, 2012, was the initial
injury in the form of trespass and that the March 6, 2012 repossession on
behalf of BankFirst aggravated the earlier trespass injury. Although Associated
Investigators and Morris correctly argue that the initial and subsequent
tortfeasor doctrine can apply outside the context of medical malpractice,3 the doctrine does not apply to this
particular factual scenario.

A secured party may take possession of the collateral with
or without judicial process if it can be done without a breach of the peace. §
679.609(2)(b), Fla. Stat. (2012). Creditors electing peaceful repossession over
replevin are liable for any negligence during the repossession. See S.
Indus. Sav. Bank v. Greene, 224 So. 2d 416, 418 (Fla. 3d DCA 1969). A
creditor’s duty to repossess peacefully, imposed by section 679.609(2)(b),
Florida Statutes, is a nondelegable duty, and a creditor cannot avoid liability
for a tortious repossession by hiring an independent contractor to repossess
the vehicle. See Sammons v. Broward Bank, 599 So. 2d 1018, 1020 (Fla.
4th DCA 1992) (citing Nichols v. Metro. Bank, 435 N.W.2d 637, 640-41
(Minn. Ct. App. 1989)); see also Nixon v. Halpin, 620 So. 2d 796, 798
(Fla. 4th DCA 1993) (holding that the creditor’s nondelegable duty to not
breach the peace during a repossession extends to third parties injured during
the repossession attempt (citing Sammons, 599 So. 2d at 1020)).

Here, BankFirst, as the creditor, had a nondelegable duty4 to ensure that the repossession did
not breach the peace. See § 679.609(2)(b), Fla. Stat.; Sammons,
599 So. 2d at 1020 (citing Nichols, 435 N.W.2d at 640-41). BankFirst’s
nondelegable duty was allegedly breached when Associated Investigators, through
Morris, entered Daniel’s property on March 6, 2012, to repossess the bus
resulting in physical injury to Daniel. As BankFirst owed a nondelegable duty,
it was directly liable for all damages resulting from the actions of Associated
Investigators and Morris. Although this situation is similar to the initial and
subsequent tortfeasor doctrine in that BankFirst was liable for all of the
damages, it differs because BankFirst had no fault and would have been permitted
to seek indemnification against Associated Investigators and Morris. See
Mortg. Guar. Ins. Corp. v. Stewart, 427 So. 2d 776, 779-80 (Fla. 3d DCA
1983). If BankFirst had been an initial tortfeasor, it would not have had a
right to be indemnified by a subsequent tortfeasor, but rather would have only
had an equitable subrogation action against the subsequent tortfeasor. See
Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So. 2d 702, 703-04
(Fla. 1980); Stuart v. Hertz Corp., 351 So. 2d 703, 706-07 (Fla. 1977).
This distinction is significant and indicates that BankFirst and, collectively,
Associated Investigators and Morris, were not initial and subsequent
tortfeasors. See Stuart, 351 So. 2d at 706-07; Sammons, 599 So.
2d at 1020. Nevertheless, we will address the merits of Associated
Investigators’ and Morris’ argument that the trespass to land and the physical
injury inflicted on Daniel on March 6, 2012, aggravated the previous trespass
to land before March 6, 2012. Trespass to real property is the unauthorized
entry onto another’s real property. Restatement (Second) of Torts § 158 (Am.
Law Inst. 1965). The injury caused by trespass to real property is the loss of
the use and enjoyment of the land or injury to the land. Coddington v.
Staab, 716 So. 2d 850, 851 (Fla. 4th DCA 1998); State v. Sarantopoulos,
604 So. 2d 551, 555 n.7 (Fla. 2d DCA 1992) (“As to civil trespass, a trespass
to real property is an injury to or use of the land of another by one having no
right or authority.” (citing Brown v. Solary, 19 So. 161 (Fla. 1896))).
Even if no actual damages are proven, the plaintiff is still entitled to
nominal damages and costs. See, e.g., Leonard v. Nat Harrison Assocs., Inc.,
122 So. 2d 432, 433 (Fla. 2d DCA 1960). If the injury to the land is temporary
rather than continuing or permanent, then distinct successive rights of action
may exist for each individual trespass. See Baker v. Hickman, 969 So. 2d
441, 443 (Fla. 5th DCA 2007) (finding that periodic flooding causing no
permanent injury to the land was temporary in nature and did not constitute a
permanent continuing trespass to the land (quoting Town of Miami Springs v.
Lawrence, 102 So. 2d 143, 146 (Fla. 1958))). An entry attempting to
repossess a vehicle, when not privileged, is temporary in nature giving rise to
an individual action for trespass each time it happens. Cf. id.

The problem with Associated Investigators’ and Morris’
argument is twofold. First, although the pre-March 6, 2012 trespass to land was
alleged in the facts section of the complaint, it was not alleged as an actual
count. Second, the facts provided in the complaint do not allege a breach of
the peace before March 6, 2012, as the repossession attempt apparently stopped
when Appellant refused to consent to the entry. See Northside Motors of
Fla., Inc. v. Brinkley, 282 So. 2d 617, 625 (Fla. 1973) (noting that the
debtor was not required to permit repossession and could have forced the
creditor to resort to judicial methods such as replevin (citing Greene v.
First Nat’l Exch. Bank of Va., 348 F. Supp. 672 (W.D. Va. 1972))); Quest
v. Barnett Bank of Pensacola, 397 So. 2d 1020, 1023 (Fla. 1st DCA 1981)
(“The debtor’s consent, freely given, legitimates any entry; conversely, the
debtor’s physical objection bars repossession even from a public street.”
(quoting James J. White & Roberts S. Summers, Handbook of the Law Under
the Uniform Commercial Code 966-69 (1972))); Raffa v. Dania Bank,
321 So. 2d 83, 85 (Fla. 4th DCA 1975) (finding that contractual language
consenting to entry prevents a breach of the peace unless the entry is into the
home or a closed structure or some other event occurs during the repossession
that breaches the peace). Accordingly, in the absence of allegations of a
breach of the peace, Associated Investigators’ entry onto the land before March
6, 2012, through Morris, was covered by the limited privilege in section
679.609(2)(b), Florida Statutes.5 Consequently, there was no prior
trespass or injury alleged in the complaint occurring before March 6, 2012. See
Marine Midland Bank-Cent. v. Cote, 351 So. 2d 750, 752 (Fla. 1st DCA 1977);
see also Restatement (Second) of Torts § 158 cmt. e (Am. Law Inst.
1965). Thus, there was no trespass action accruing before March 6, 2012, for
Appellees to aggravate.

Additionally, the initial and subsequent tortfeasor doctrine
could not apply solely based on the events occurring on March 6, 2012. The
March 6, 2012 trespass exists because a breach of the peace was alleged. See
Cote, 351 So. 2d at 752. A subsequent physical injury caused by the alleged
negligence in carrying out the repossession was also alleged. While it is true
that the trespass on March 6, 2012, could have been aggravated by the
subsequent alleged negligence, because BankFirst had a nondelegable duty and
was directly liable for the breach of that duty by its independent contractor,
Associated Investigators, and Associated Investigators’ employee, Morris, there
could not be a subsequent tortfeasor as no tortfeasor was liable only for the
aggravated portion of the injury. See Sammons, 599 So. 2d at 1020; Rucks,
541 So. 2d at 675. Indeed, all three would be liable for the entire injury.
Therefore, this case is distinguishable from cases applying the initial and
subsequent tortfeasor doctrine because in those cases certain tortfeasors were
liable only to the extent they aggravated the injury. See Francois, 76
So. 3d at 365 n.5; Caccavella, 814 So. 2d at 1148; Rucks, 541 So.
2d at 674.

As the initial and subsequent tortfeasor doctrine is not
applicable to this case,6 section 768.041, Florida Statutes
(2012), precludes summary judgment on the release. See Francois, 76 So.
3d at 365 n.5; Broz v. Rodriguez, 891 So. 2d 1205, 1207 (Fla. 4th DCA
2005) (citing Hertz Corp. v. Hellens, 140 So. 2d 73, 73 (Fla. 2d DCA
1962)); Knutson v. Life Care Ret. Comtys., Inc., 493 So. 2d 1133, 1135
(Fla. 4th DCA 1986) (citing Hurt v. Leatherby Ins. Co., 380 So. 2d 432,
434 (Fla. 1980)). We therefore reverse the entry of final summary judgment and
remand for further proceedings.7

REVERSED AND REMANDED. (TORPY and WALLIS, JJ., concur.)

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1Rivera died on November 5, 2011, and
Appellant was appointed personal representative of his estate on March 15,
2012. See In re Estate of Carlos Rivera, No. 12-CP-329 (Fla. 18th Cir.
Ct. Mar. 15, 2012).

2On July 19, 2013, Appellant filed a
notice of voluntary dismissal with respect to BankFirst.

3See Gross v. Lyons,
763 So. 2d 276, 279 (Fla. 2000) (applying the initial and subsequent tortfeasor
rule and the indivisible injury rule to successive automobile accidents where
there was no medical malpractice); Huet v. Mike Shad Ford, Inc., 915 So.
2d 723, 725 (Fla. 5th DCA 2005) (holding that the repairer of the plaintiff’s
vehicle after the accident could be a subsequent tortfeasor in terms of
aggravating the damage to the vehicle).

4Nondelegable duties may “arise out
of the common law, statutes or regulations, or contract.” Pope v. Winter
Park Healthcare Grp., Ltd., 939 So. 2d 185, 188 (Fla. 5th DCA 2006)
(emphasis omitted) (citing Dixon v. Whitfield, 654 So. 2d 1230, 1232
(Fla. 1st DCA 1995)). Generally, they arise from the common law in the
performance of ultrahazardous activities or activities that are of such
importance to the community that responsibility cannot be transferred to a
third party agent or independent contractor. Id. Liability for breach of
a nondelegable duty is similar to but not based on vicarious liability. See
Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 875-76 (Fla. 2d
DCA 2010). A party with a nondelegable duty may contract out the performance of
the nondelegable duty to an independent contractor, but he or she will remain
liable for the proper performance of the duty. See U.S. Sec. Servs. Corp. v.
Ramada Inn, Inc., 665 So. 2d 268, 270-71 (Fla. 3d DCA 1995). This liability
does not extend to all torts committed by the independent contractor, but only
to those that breach the nondelegable duty. Id. at 271 (citing Williams
v. Wometco Enters., 287 So. 2d 353, 354 (Fla. 3d 1973)).

5Section 679.609(2)(b) conveys a
limited privilege for the creditor to enter onto the debtor’s land to repossess
secured property provided the entry and repossession is without a breach of the
peace. See Marine Midland Bank-Cent. v. Cote, 351 So. 2d 750, 752 (Fla.
1st DCA 1977).

6We do not reach Daniel’s argument
that the settlement with BankFirst was not intended to fully compensate her,
because BankFirst paid her nothing in exchange for the release.

7Our holding does not revive any
claims against BankFirst that were released by Daniel.

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