M.M. v. M.F.

2020 Ohio 5082

• Court: Ohio Court of Appeals
• Decided: October 29, 2020
• Docket: 108957
• Status: Published

Opinion

[Cite as M.M. v. M.F., 2020-Ohio-5082.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

M.M., ET AL., :

Plaintiffs-Appellants, : No. 108957 v. :

M.F., ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 29, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-903980

Appearances:

McCarthy, Lebit, Crystal & Liffman Co., L.P.A., Christian R. Patno, and Colin R. Ray, for appellant M.M.

David L. Lash, for appellant W.A.

Williams, Moliterno & Scully Co., L.P.A., and Christina N. Williams, for appellee M.F. RAYMOND C. HEADEN, J.:

Plaintiffs-appellants M.S.M. (“M.M.”) and W.A. (collectively,

“Appellants”) appeal from the trial court’s granting of defendant-appellee M.F.’s

motion for summary judgment. For the reasons that follow, we affirm.

Procedural and Substantive History

Several days prior to June 7, 2017, M.F. loaned her car, a Mazda 626

(“the Mazda”), to her daughter J.R. J.R. and her husband had three teenage children

and the family was temporarily in need of an extra vehicle for the children. The

Mazda was a sedan equipped with five seatbelts.

On June 7, 2017, J.R.’s daughter S.R. asked her parents if she could

borrow a car to drive to a friend’s house. J.R. told S.R. that she could take the Mazda.

Later that evening, S.R. was driving with five of her friends when she lost control

and crashed into two trees. S.R. and three of her passengers were not seriously

injured. 16-year-old passenger S.A., W.A.’s daughter, sustained serious injuries,

including facial fractures, as a result of the crash. 16-year-old passenger K.M.,

M.M.’s daughter, was ejected from the vehicle and killed.

At the time of the incident, S.R. had had her probationary driver’s

license for approximately three weeks, and was, therefore, subject to the restrictions

enumerated in R.C. 4507.071. S.R. admitted to driving over the speed limit and

listening to loud music at the time of the crash.

On September 19, 2018, M.M., individually and as administrator of

the estate of K.M., filed a complaint against M.F. and State Farm Mutual Automobile Insurance Company (“State Farm”). M.M. brought a negligent entrustment claim

against M.F., and a breach of contract claim against State Farm.

On January 9, 2019, W.A. filed a motion to intervene. The court

granted this motion, and on January 17, 2019, W.A. filed an intervening complaint,

bringing an identical negligent entrustment claim against M.F.

On April 2, 2019, State Farm filed a motion for summary judgment.

On June 3, 2019, the court granted State Farm’s motion for summary judgment as

to the breach of contract claim.1

On May 20, 2019, M.F. filed a motion for summary judgment. In

support of her motion for summary judgment, M.F. relied primarily on deposition

testimony from herself, S.R., and J.R. On July 12, 2019, M.M. filed a brief in

opposition. On August 16, 2019, the trial court granted M.F.’s motion for summary

judgment.

M.M. and W.A. both appealed, and this court granted their joint

motion to join appeals. Appellants present two assignments of error for our review.

Law and Analysis

In their first assignment of error, Appellants argue that the trial court

committed reversible error in granting summary judgment to M.F. because genuine

issues preclude summary judgment. In their second assignment of error, Appellants

1 Because Appellants did not appeal from this judgment, State Farm is not a party to this appeal. argue that the trial court erred in failing to consider their arguments regarding

secondary entrustment and other negligence theories of liability.

We review summary judgment rulings de novo, applying the same

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). We accord no deference to the trial court’s decision and conduct

an independent review of the record to determine whether summary judgment is

appropriate.

Under Civ.R. 56, summary judgment is appropriate when no genuine

issue exists as to any material fact and, viewing the evidence most strongly in favor

of the nonmoving party, reasonable minds can reach only one conclusion that is

adverse to the nonmoving party, entitling the moving party to judgment as a matter

of law. On a motion for summary judgment, the moving party carries an initial

burden of identifying specific facts in the record that demonstrate their entitlement

to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d

264 (1996).

If the moving party fails to meet this burden, summary judgment is

not appropriate; if the moving party meets this burden, the nonmoving party has

the reciprocal burden to point to evidence of specific facts in the record

demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.

Summary judgment is appropriate if the nonmoving party fails to meet this burden.

To prevail on a negligent entrustment claim involving the operation

of a motor vehicle, a plaintiff must show (1) that the vehicle was operated with permission of the owner; (2) that the driver of the vehicle was incompetent to

operate it; and (3) that the owner of the vehicle knew — either through actual

knowledge or through knowledge implied from known facts at the time of the

entrustment — that the driver was unqualified or incompetent to operate the vehicle.

Rieger v. Giant Eagle, Inc., 157 Ohio St.3d 512, 2019-Ohio-3745, 138 N.E.3d 1121,

¶ 17, citing Gulla v. Straus, 154 Ohio St. 193, 194, 93 N.E.2d 662 (1950). The plaintiff

must also show that the owner’s negligent entrustment caused the plaintiff’s injury.

Id., citing Safeco Ins. Co. of Am. v. White, 122 Ohio St.3d 562, 2009-Ohio-3718, 913

N.E.2d 426, ¶ 36. The failure to prove any of these elements is fatal to a negligent

entrustment claim. Id.

Appellants argue that M.F. negligently entrusted her vehicle to S.R.,

and that M.F. knew or should have known that S.R. was an incompetent driver. In

response, M.F. argues that she entrusted the Mazda to J.R., not S.R., and there is no

evidence to support a finding that S.R. was operating the Mazda with M.F.’s

permission. Therefore, M.F. submits that based on the holding in Rogers v. Kazee,

10 Ohio App.3d 139, 141, 460 N.E.2d 1149 (10th Dist.1983), the proper inquiry is

whether the initial entrustment to J.R. was negligent.

Further, M.F. argues that there is no evidence that S.R. was

incompetent, and similarly that there is no evidence that M.F. knew or should have

known of this alleged incompetence. After reviewing the record, we find no basis

upon which to conclude that the trial court erred in granting M.F.’s motion for

summary judgment. I. Negligent Entrustment

A. The Entrustment

As an initial matter, Appellants’ negligent entrustment claim is

premised on the conclusion that M.F. entrusted the Mazda to S.R. This is

unsupported by the record. Appellants assert that when M.F. entrusted the Mazda

to her daughter’s family, she knew or should have known that S.R. would use the

vehicle. Contrary to this assertion, M.F. testified that when she entrusted the Mazda

to J.R., she did not expect that S.R. would be driving the vehicle. Further, M.F. was

not even aware that S.R. had ever driven the Mazda prior to the night of the accident.

S.R. only obtained express permission to drive the vehicle from her parents several

days after the Mazda’s entrustment.

Appellants point to facts in the record regarding the purpose of the

entrustment and M.F.’s close relationship with her daughter and grandchildren.

The record reflects that the reason J.R.’s family needed an additional vehicle at the

time of the accident was that her children had different final exam schedules at

different locations.

Appellants are correct that the record reflects that M.F. was aware of

these circumstances. The record also directly undermines Appellants’ argument,

however, because M.F. testified in her deposition that when she loaned the Mazda

to J.R., she imagined that S.R.’s brothers would use the vehicle but never

contemplated that S.R. would drive the Mazda because she had so recently started driving. M.F. specifically stated that she “never even thought of [S.R.] driving” the

Mazda because she had so recently gotten her license.

Likewise, the record reflects that at the time of the entrustment, J.R.

also had not contemplated that S.R. would use the Mazda. Instead, J.R. explained

that her intention in borrowing the Mazda was for her other children to be able to

take the car to their final exams. In light of the foregoing, Appellants have not

presented evidence creating a genuine issue of material fact as to the first element

of their negligent entrustment claim.

B. S.R.’s Alleged Incompetence

Even if the record contained evidence that M.F. had entrusted the

Mazda to S.R., or had reason to know that S.R. would use the Mazda, summary

judgment in M.F.’s favor was still appropriate. With respect to the second element

of their negligent entrustment claim, Appellants have failed to present any evidence

indicating that S.R. was an incompetent driver, much less that M.F. had any

knowledge of such alleged incompetence at the time of the entrustment.

In support of their argument that S.R. was an incompetent driver,

Appellants point out that she was a new driver and she was driving approximately

50 m.p.h. in a 25 m.p.h. residential zone at the time of the accident. Further, S.R.

allowed six occupants in the Mazda, despite the vehicle being equipped with only

five seatbelts. Appellants also point to S.R.’s deposition testimony, in which she

acknowledged that she did not appreciate the true risks of driving and drove in

excess of the speed limit an average amount. Finally, Appellants emphasize that an issue of material fact exists regarding whether S.R.’s youth or “tender age” caused

the crash.

As an initial matter, there is no dispute that S.R.’s driving at the time

of the accident in this case was reckless. Based on the elements of negligent

entrustment as laid out above, however, this has no bearing on our analysis of S.R.’s

alleged incompetence here. The relevant inquiry is whether S.R. was incompetent

at the time of the entrustment.

Possession of a valid driver’s license is indicative of minimal

competence, although it does not make the license holder per se competent.

Community Mut. Ins. Co. v. Kaczmarski, 6th Dist. Lucas No. L-97-1220, 1998 Ohio

App. LEXIS 1830, 11 (May 1, 1998). Appellants argue that although S.R. had a

probationary license, the facts of this case regarding her youth, inexperience driving

generally, and inexperience driving the Mazda support a conclusion that she was

incompetent.

“The tender age of a driver alone is not enough to demonstrate that

the driver is incompetent” in the context of a negligent entrustment claim. Pfund v.

Ciesielczyk, 84 Ohio App.3d 159, 164, 616 N.E.2d 560 (6th Dist.1992). Rather, the

tender age of a driver, together with some evidence that they were unskilled in

driving or unfamiliar with the vehicle may support a conclusion that the driver was

incompetent. Id., citing Elliott v. Harding, 107 Ohio St. 501, 502, 140 N.E. 338

(1923); Buckingham v. Gilbert, 29 Ohio App. 216, 219, 163 N.E. 306 (12th

Dist.1928); and Fleming v. Hannan, 8th Dist. Cuyahoga No. 11435, 1931 Ohio Misc. LEXIS 1351, 4 (May 4, 1931). Unlike the cases cited by Appellants, there is no

evidence in this case that S.R. was incompetent independent of her age.

Appellants argue that the only thing preventing S.R. from having

multiple speeding tickets and reckless operation violations is the limited amount of

time she had been driving and “mere chance.” Appellants rely on S.R.’s deposition

testimony, in which she stated that she probably drove in excess of the speed limit

“an average amount.”

Ohio courts have held that “[i]solated incidents of failing to obey

traffic laws * * * generally will not establish incompetence” for purposes of negligent

entrustment claims. Hoff v. Minder, 4th Dist. Washington No. 13CA31, 2014-Ohio-

3491, ¶ 13, citing Marcum v. White, 4th Dist. Lawrence No. 1928, 1990 Ohio App.

LEXIS 3820 (Aug. 22, 1990); Cincinnati Ins. Co. v. Watson, 10th Dist. Franklin

No. 88AP-898, 1989 Ohio App. LEXIS 723 (Mar. 2, 1989); and Adkins v. Wright,

11th Dist. Ashtabula No. 1285, 1987 Ohio App. LEXIS 8988 (Sept. 30, 1987). Rather,

a plaintiff must show that the incompetence is “pervasive” to establish a triable

issue. Id., citing Bowlander v. Ballard, 6th Dist. Sandusky No. S-02-029, 2003-

Ohio-2907, ¶ 28. Notably, S.R. also testified that she did not really remember

driving fast habitually, and that she had never driven recklessly prior to the night of

the incident in this case. This hardly constitutes pervasive incompetence so as to

establish a triable issue.

With respect to S.R.’s familiarity with the Mazda, Appellants argue

that S.R. admitted that she was more familiar with her parents’ vehicle. The record also reflects that S.R. had driven the Mazda prior to the night of the incident here.

Further, while S.R. may have been less familiar with the Mazda than with another

vehicle, there is no evidence that the cause of the accident was in any way related to

her degree of familiarity with the vehicle. The record evidence does not show that

S.R. was unfamiliar with the Mazda so as to create a genuine issue of material fact

with respect to her competence.

Moreover, evidence in the record shows that S.R. successfully

completed drivers education courses, had not previously been involved in an

accident, and, according to the person with whom she had driven most frequently,

J.R., was a good driver. J.R. testified that she had no reason to believe that S.R. was

an unsafe driver. Therefore, Appellants did not present evidence sufficient to create

a genuine issue of material fact as to S.R.’s competence.

Appellants also assert that liability may attach under Section 390 of

the Restatement of Torts, which states:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving an unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement of the Law 2d, Torts, Section 390 (1965). Ohio courts have not adopted

Section 390 of the Restatement. Even if this court were to adopt it, as we are urged

to do by Appellants, our analysis as to S.R.’s competence would remain the same. Section 390 provides that “youth” and “inexperience” may be

considered in evaluating liability. This is in accordance with the foregoing case law

surrounding negligent entrustment claims. To the extent that Section 390 provides

further guidance regarding the meaning of “youth” and “inexperience,” we note that

the section’s corresponding illustrations all concern ten-year-old children, many of

whom had never operated the vehicle in question prior to the accident. Here, S.R.

was a 16-year-old with a valid probationary license who had operated the Mazda

prior to the accident in this case. Therefore, Appellants’ argument regarding Section

390 is not well taken. There is no genuine issue of material fact as to whether S.R.

was a competent driver.

C. M.F.’s Knowledge of S.R.’s Alleged Incompetence

Finally, even if Appellants had established evidence that M.F.

entrusted her car to S.R., and that S.R. was incompetent, they have failed to point to

any evidence creating a genuine issue of material fact as to the third element of their

negligent entrustment claim. Nothing in the record supports Appellants’ assertions

that M.F. knew or should have known that S.R. was incompetent.

As discussed above, there is no genuine issue of material fact

regarding S.R.’s alleged incompetence. Therefore, it is impossible to conclude that

M.F. somehow knew or should have of known of such incompetence. The record

reflects that M.F. did not make any inquiry into S.R.’s driving habits, nor did she

attempt to place any restrictions on use of the Mazda. In light of the evidence

discussed with respect to S.R.’s alleged incompetence, even if M.F. had conducted such an inquiry, she still would not have known or had any reason to know of S.R.’s

alleged incompetence.

Because there is no genuine issue of material fact as to any element of

Appellants’ negligent entrustment claim, the trial court did not err in granting

summary judgment in favor of M.F. Appellants’ first assignment of error is

overruled.

II. Secondary Entrustment and Other Theories of Liability

In Appellants’ second assignment of error, they argue that the trial

court erred in failing to consider their arguments regarding secondary entrustment

and other negligence theories of liability. In her brief in opposition to M.F.’s motion

for summary judgment, M.M. argued that M.F. could be liable for negligence under

the secondary entrustment theory, the family-purpose doctrine, or the joint

enterprise doctrine.

In granting M.F.’s motion for summary judgment, the trial court held

that it was not necessary to reach Appellants’ additional arguments because they

were not included in the complaint, and no amended complaint was filed. EverStaff,

L.L.C. v. Sansai Environmental Technologies, L.L.C., 8th Dist. Cuyahoga No.

96108, 2011-Ohio-4824, ¶ 13. We agree.

With respect to Appellants’ secondary entrustment argument, they

argued in their brief in opposition to M.F.’s motion for summary judgment that even

if the original entrustment was to J.R. and not S.R., M.F. can still be liable. The crux

of a secondary entrustment analysis is whether the original entrustment was negligent. Hicks v. State Farm Mut. Auto. Ins. Co., 2017-Ohio-7095, 95 N.E.3d 852,

¶ 22 (2d Dist.), citing Dillard v. Campbell, 2d Dist. Montgomery No. 17969, 2000

Ohio App. LEXIS 1519, 3 (Apr. 7, 2000). Because the original entrustment to J.R.

was not negligent, Appellants could not prevail on a theory of secondary

entrustment. The trial court was correct that this analysis was necessarily

encompassed by its resolution of the negligent entrustment theory of liability.

With respect to the joint enterprise theory of liability, we agree with

Appellants that under Ohio law, they are not required to individually plead each and

every theory of negligence. Although the rules of pleading are liberal, and a plaintiff

is not bound by any particular theory of recovery, Civ.R. 8(A) does provide that the

facts of a plaintiff’s claim establish the right to relief. EverStaff, L.L.C. at ¶ 13, citing

White v. Mt. Carmel Med. Ctr., 150 Ohio App.3d 316, 2002-Ohio-6446, 780 N.E.2d

1054, ¶ 29 (10th Dist.). Further, plaintiffs cannot include claims beyond those raised

in the complaint for the first time in the summary judgment stage of the litigation

without amending the complaint. Id. Therefore, because the complaint in this case

did not allege a factual or legal basis to support a joint enterprise theory of liability,

the trial court did not err in not explicitly addressing Appellants’ joint enterprise

theory of liability.

Likewise, not only did Appellants fail to allege a factual or legal basis

for liability under the family-purpose doctrine, no Ohio court has recognized the

doctrine. Ross v. Burgan, 163 Ohio St. 211, 215, 126 N.E.2d 592 (1955). Therefore, the trial court did not err in not considering Appellants’ additional theories of

liability. The second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________________________ RAYMOND C. HEADEN, JUDGE

MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR