DeLuca v. Cleary

710 N.E.2d 1027, 47 Mass. App. Ct. 50
CourtMassachusetts Appeals Court
DecidedJune 2, 1999
DocketNo. 97-P-1978
StatusPublished
Cited by4 cases

This text of 710 N.E.2d 1027 (DeLuca v. Cleary) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeLuca v. Cleary, 710 N.E.2d 1027, 47 Mass. App. Ct. 50 (Mass. Ct. App. 1999).

Opinion

Lenk, J.

The defendant Virginia Cleary and her husband William Greenspon are the parents of Amy Greenspon who, on August 6, 1994, was sixteen years old. The family lived in a rural area near Lenox, Massachusetts, and Amy was home from school for the summer. Amy was scheduled to complete her summer jobs by August 5, then travel via bus and ferry on August 7 to visit with a friend in Nantucket until August 13. Her parents allowed Amy to stay by herself for two days at the family home while she finished work and they left on August 3 for a ten-day vacation in Maine. Food was provided for Amy and arrangements were made for' her transportation needs in her parents’ absence. Her parents drove one car to Maine and left [51]*51the mother’s car in the driveway, unlocked and with the spare key under a floormat. Amy had a learner’s permit, liked to drive arid, on occasion, had previously driven her mother’s car, but only in the company of a parent, and knew where the car’s spare key was kept.

Amy did not have her mother’s permission to drive the car while her parents were away. She did so anyway on August 5 and 6, each time without her mother’s prior knowledge or consent. On August 6, 1994, Amy was in an accident in which she and her passenger, the plaintiff Shauna DeLuca, were injured.

DeLuca brought suit in three counts, alleging in count I negligence against Amy, in count II that Cleary “through herself, her agent, employee, or by a person [for] whom she was legally responsible negligently and carelessly operated her motor vehicle [so] as to cause it to collide with another motor vehicle,” and in count HI that Cleary “negligently entrusted the motor vehicle to her minor daughter, whom she knew or should have known to be incompetent or unfit to use it safely.” After some discovery, DeLuca moved to amend her complaint to add count IV against Cleary, alleging that “[o]n or about August 6, 1994, the defendant, Virginia Cleary, negligently left her 16 year old daughter home alone, with access to her 1986 Toyota Tercel, in light of her daughter’s minor age and incompetence to operate a motor vehicle.” The motion to amend was denied without prejudice, the judge noting that she “seriously questioned] whether the proposed amendment states a cause of action.”

So matters stood until trial before a different judge, when DeLuca renewed her motion to amend, relying in part upon Poskus v. Lombardo’s of Randolph, Inc., 423 Mass. 637 (1996), decided several months before trial. The motion was denied and the case went to trial before a jury on counts H and HI.2 The trial judge directed a verdict on count II (vicarious liability) in favor of Cleary, and count III (negligent entrustment) was thereafter submitted to the jury which, in answer to special verdict questions, found that Cleary had not given Amy general or specific permission to use her car at the time of the accident.

[52]*52On appeal, DeLuca argues that the first judge erred in denying her motion to amend the complaint, that the trial judge erred in denying her renewed motion to amend the complaint, and that the trial judge erred in directing a verdict on count II of her complaint. These asserted errors really boil down to one: whether the plaintiff stated a cognizable claim against Cleary for negligence, not in Cleary’s capacity as parent of a wrongdoing child, but as a motor vehicle owner with an ordinary duty of due care and liability for the foreseeable consequences of her actions. The plaintiff contends that, after Poskus, such a claim is viable and that she both impliedly asserted it in count II and sought unsuccessfully to assert it in her proposed count IV. Hence, she argues, it was error to direct a verdict on count II and to deny her motion to add count IV.

DeLuca’s claim of error as to count II is readily answered. In the joint pretrial memorandum of the parties, the plaintiff conceded that the sole theory of liability on which count II was predicated is G. L. c. 231, § 85A, i.e., vicarious liability. She was bound by this stipulation, from which she did not seek to be relieved at trial and on which the judge could rightly rely. There was insufficient evidence establishing the requisites of such a claim, i.e., an agency relationship between mother and daughter or that Amy had actual or apparent authority from her mother to invite the plaintiff for a ride in her mother’s car. The plaintiff conceded as much at the close of her case, but belatedly attempted to fend off the motion for directed verdict by contending that count II was viable because “susceptible to a. Poskus type argument.” In view of the pretrial stipulation and the judge’s denial of her renewed motion to add count IV which she argued was Poskus-based, there was no error in directing out count n.

We turn then to whether DeLuca’s proposed count IV states a viable claim. Cleary contends that count IV in reality unsuccessfully attempts to state a claim of negligent parental supervision. “A parent has a duty to exercise reasonable care to prevent his minor child from intentionally or negligently inflicting harm on others, where the parent knows or should know of the child’s propensity for a particular type of harmful conduct and has the opportunity to take reasonable corrective measures.” Alioto v. Marnell, 402 Mass. 36, 38 (1988), citing Caldwell v. Zaher, 344 Mass. 590, 592 (1962). We agree that such a claim would not succeed here, the plaintiff having acknowledged that, had [53]*53the amendment been allowed, the evidence would have been the same. She alleged no facts and introduced no evidence that Amy had ever used the car or the spare key without Cleary’s permission or without Cleary’s knowledge that she had done so or had a propensity to do so.3 See Watson v. Salvoni, 27 Mass. App. Ct. 735 (1989).

The plaintiff, however, denies that count IV states a claim for negligent parental supervision. Rather, she contends that the parent-child relationship is irrelevant to her general negligence claim that Cleary, as a car owner, violated her ordinary duty of due care by making the car accessible to an unfit driver and that it was reasonably foreseeable that this driver would operate the car and likely harm others. She relies on the authority of Poskus for this theory of liability.

In Poskus, the plaintiff was a police officer injured while pursuing on foot a car thief who resisted arrest after leaving the car he had stolen and driven from the defendant’s valet parking service. In Poskus, the Supreme Judicial Court reconsidered the reasoning of a line of cases involving motor vehicles left unattended with keys in the ignition which are stolen and then injure third persons. Finding unpersuasive the reasoning which had resulted in such cases being a narrow exception to the general rule that liability may be imposed upon one who negligently fails to guard against the consequences of reasonably foreseeable criminal conduct, the court stated that in certain situations where a person makes the theft of a motor vehicle possible, the question of reasonable foreseeability of harm to third persons by the thief’s operation of the vehicle would be for the trier of fact. Poskus, 423 Mass, at 640. In Poskus,

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Bluebook (online)
710 N.E.2d 1027, 47 Mass. App. Ct. 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deluca-v-cleary-massappct-1999.