Jones v. Western Preferred Cas. Co.

633 So. 2d 667, 1993 WL 601225
CourtLouisiana Court of Appeal
DecidedDecember 29, 1993
Docket92 CA 2317
StatusPublished
Cited by9 cases

This text of 633 So. 2d 667 (Jones v. Western Preferred Cas. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Western Preferred Cas. Co., 633 So. 2d 667, 1993 WL 601225 (La. Ct. App. 1993).

Opinion

633 So.2d 667 (1993)

Susan Gaushell JONES, Individually and as Natural Tutor of Harper S. Jones
v.
WESTERN PREFERRED CASUALTY COMPANY, et al.

No. 92 CA 2317.

Court of Appeal of Louisiana, First Circuit.

December 29, 1993.
Writ Denied April 4, 1994.

John N. Samaha, Baton Rouge, for plaintiff-appellant Harper Jones.

*668 Richard G. Creed, Jr., Baton Rouge, for defendant-appellee State Farm Mut. Auto. Ins. Co.

Before CARTER, GONZALES and WHIPPLE, JJ.

CARTER, Judge.

This is an appeal from a judgment in a suit for damages.

FACTS

On Friday, February 11, 1983, thirteen-year-old Harper S. Jones was visiting his grandparents in Baton Rouge, Louisiana. At approximately 8:30 p.m., Harper left his grandparents' home in Villa Del Rey Subdivision and walked to Cortana Mall to watch a movie, play video games, or other similar activity. While playing video games, Harper became acquainted with Clay Whitney Kent (Kent), a nineteen-year-old.

At approximately 10:30 p.m., Harper left the mall to return to his grandparents home, and Kent offered him a ride home. After leaving the mall, Kent drove to a convenience store where he purchased a six-pack of beer. Thereafter, the two young men drove around Baton Rouge and consumed the beer. Sometime thereafter, Harper began to drive Kent's automobile. At approximately 12:50 a.m., the Kent automobile struck a tree located on a median. As a result of the accident, Harper sustained injuries, and Kent was killed.

On February 10, 1984, Susan Gaushell Jones, individually and as Harper's natural tutor, filed the instant suit for damages. Named as defendants were: Western Preferred Casualty Company (Western Preferred), Kent's liability insurer; Leslie Boyd Kent, Jr. and Frances Johnson Kent, heirs to the Kent estate; and State Farm Mutual Automobile Insurance Company (State Farm), Jones's uninsured motorist insurer. In her petition, Jones alleged that the accident was caused solely by the negligence of Kent. Kent's alleged negligence consisted of his actions in permitting a thirteen-year-old to drive his automobile and in providing alcoholic beverages to a thirteen-year-old, whom he subsequently permitted to drive. State Farm answered Jones's petition and alleged that Harper was negligent in that he operated the Kent vehicle at an excessive rate of speed, operated the Kent vehicle while under the influence of alcohol, failed to maintain control of the Kent vehicle, and failed to maintain a proper look-out for his own safety. Western Preferred and the Kents answered and alleged that Harper was negligent in operating the vehicle at an excessive rate of speed and in failing to maintain control of the automobile.[1]

On joint motion of the parties, a suit filed by the Kents against Jones, in her capacity as Harper's mother and natural tutrix, State Farm, and Western Preferred was consolidated with the instant suit.[2] After trial, the trial court rendered judgment in favor of State Farm and against Jones, dismissing her suit for damages at her costs. From this adverse judgment, Jones appeals, raising the following issues:

1. Was Clay Kent negligent in permitting Jones, a thirteen-year-old to operate his automobile?
2. Was Harper Jones contributorily negligent?
3. Does the uninsured motorist policy issued to Susan Jones provide coverage to Harper?

NEGLIGENCE OF KENT

Jones's action against Kent is based on LSA-C.C. art. 2315, which provides, in part, as follows:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

In the instant case, Jones alleged that Kent was negligent in permitting a thirteen-year-old *669 to drive his automobile and in providing alcoholic beverages to a thirteen-year-old whom he subsequently permitted to drive his automobile.

Generally, an owner of a vehicle is not personally liable for damages which occur while another is operating the vehicle. Harris v. Hamilton, 569 So.2d 1, 3 (La.App. 4th Cir.1990); Friday v. Mutz, 483 So.2d 1269, 1271 (La.App. 4th Cir.1986). Exceptions to this rule occur only when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, and when the owner is himself negligent in entrusting the vehicle to an incompetent driver. Harris v. Hamilton, 569 So.2d at 3.

Under the negligent entrustment theory, the lender of a vehicle is not responsible for the negligence of the borrower, unless he had or should have had knowledge that the borrower was physically or mentally incompetent to drive. Barnett v. Globe Indemnity Company, 557 So.2d 300, 301 (La. App. 4th Cir.1990); Reuther v. Landreneau, 480 So.2d 376, 379 (La.App. 4th Cir.1985), writ denied, 482 So.2d 628 (La.1986). However, an owner of an automobile who knowingly entrusts it to an intoxicated, or otherwise incompetent, driver is responsible for the harm resulting from the incompetent operation of the vehicle. Pereira Enterprises, Inc. v. Soileau, 551 So.2d 39, 40 (La.App. 1st Cir.1989); Danos v. St. Pierre, 383 So.2d 1019, 1021 (La.App. 1st Cir.1980), affirmed, 402 So.2d 633, 636-37 (La.1981). We note, however, that we can find no authority which places a duty on an owner or lender of an automobile to make an inquiry into one's driving habits or record when no reason exists to place the lender on notice of the borrower's disability or incompetence. Reuther v. Landreneau, 480 So.2d at 379.

In Pereira Enterprises, Inc. v. Soileau, 551 So.2d at 40-42, this court determined that, absent testimony or other evidence to indicate that an owner of an automobile knew or should have known that the driver was intoxicated or incompetent, the owner could not be held negligent for allowing her to drive his automobile. In Pereira Enterprises, the owner of an automobile met the operator in a lounge for the first time. The two were present in the lounge together for approximately forty-five minutes during which time the owner consumed one or two cans of beer. The owner did not know whether the driver had been drinking before he arrived at the lounge; the driver did not appear to be intoxicated in that her speech was not slurred noticeably and she had no difficulty in walking. Her blood alcohol content, however, was .28. The trial court determined that because the driver's blood alcohol content was .28 she would have been obviously impaired such that the owner knew or should have known she was intoxicated and was thus negligent for allowing her to operate his automobile. In reversing the trial court judgment, the appellate court determined that without expert testimony, the trial judge could not determine the effects of a .28 blood alcohol content based upon his own opinion. The appellate court noted that there was no testimony or other evidence to indicate that the owner knew or should have known that the driver was intoxicated or incompetent. During the short period of time they were together, the driver's condition did not appear to concern the owner.

In Reuther v. Landreneau, 480 So.2d at 377-79, despite her parents' specific orders not to permit anyone to operate her car, a teenage girl permitted her boyfriend to drive her car. Shortly thereafter, the boyfriend was involved in an automobile accident. In an action against the girl for negligent entrustment, the court determined that the teenage girl had no reason to believe that her boyfriend was an incompetent driver.

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Cite This Page — Counsel Stack

Bluebook (online)
633 So. 2d 667, 1993 WL 601225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-western-preferred-cas-co-lactapp-1993.