
    Clarence JACKSON, Steven G. Rinker and Glenn G. Rinker, Appellants, v. Barbara TURNIPSEED and Joseph Turnipseed, Appellees.
    Nos. 85-2534, 85-2695.
    District Court of Appeal of Florida, Third District.
    June 9, 1987.
    Stanley M. Rosenblatt and Julius Gonzalez, Spiegelman & Spiegelman and Robert Spiegelman, and Laura S. Rotstein, Miami, for appellants.
    Joe N. Unger, Gilmour, Morgan & Ro-senblatt, George, Hartz & Lundeen and David V. King, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARKDULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Potamkin v. Horne, 505 So.2d 560 (Fla. 3d DCA 1987) (rehearing en banc).

BARKDULL, HENDRY, NESBITT, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ., concur.

BASKIN, Judge

(dissenting).

In this case, as in Vic Potamkin Chevrolet, Inc. v. Horne, 505 So.2d 560 (Fla. 3d DCA 1987) (rehearing en banc), I would impose liability for the sellers’ own negligence in selling an automobile to an individual whose incompetence to drive was known to the sellers prior to the actual sale. The majority opinion permits the sellers to escape liability. Under its mandate, the sellers avoid liability for the foreseeable harm to third persons that is a consequence of their negligent sale, merely by transferring title. I decline to condone the irresponsible indifference to the well-being of the public demonstrated by the sellers. Accordingly, I would reverse the summary judgment and remand for the factfinder to decide the genuine issues of material fact disclosed by the record, namely, whether prior to the sale appellees knew they were selling the vehicle to a drunk or drugged incompetent driver and thereby subjecting members of the public to great risk of harm. If the findings are affirmative, I would impose liability under the authorities cited in my Vic Potamkin Chevrolet dissent. Vic Potamkin Chevrolet, Inc., 505 So.2d at 564 (rehearing en banc) (Baskin, J., dissenting).

HUBBART, J., concurs.

SCHWARTZ, Chief Judge

(specially concurring).

The appellees in this case sold an automobile to a person who was known to be an abuser of drugs and alcohol but was not in fact incompetent at the time of the sale. Since the defendants were therefore not bound to know that the purchaser would operate the car after he became incompetent, I do not believe that their conduct falls within the scope of section 390 of the Restatement (Second) of the Laws of Torts as adopted by the dissent in the Potamkin case. Thus, although I joined that dissent, I concur in affirmance in this case.  