Tran v. Quang Hong Nguyen

238 P.3d 314, 44 Kan. App. 2d 443, 2010 Kan. App. LEXIS 97

• Court: Court of Appeals of Kansas
• Decided: August 27, 2010
• Docket: 102,019
• Status: Published

Opinions

Caplinger, J.:

Adam Tuanloc Tran was a passenger in a minivan driven by Quang Hong Nguyen when Nguyen collided with another vehicle. Tran sued the owners of the minivan, Steven and Xuan Hong Hohensee (husband and wife) (the Hohensees), for negligendy entrusting their minivan to Nguyen. The district court granted the Hohensees’ motion for summary judgment, and Tran now appeals. Finding no error in the district court’s ruling, we affirm.

Factual and Procedural Background

In 2005, Tran and Xuan Hohensee were passengers in a minivan driven by Nguyen and owned by the Hohensees when Nguyen drove his vehicle into the path of a vehicle driven by Sarah Shockey. Nguyen was an experienced driver who had previously driven the Hohensees’ van on multiple occasions, and he had not been involved in any prior vehicle accidents.

Before the accident, the Hohensees had removed the minivan’s middle seat and, in the space created, had placed the spare tire, a rug, and other loose items. At the time of the accident, Tran was seated in the back seat of the van. Tran was wearing his seat belt and had not noticed any problems with the seat belt. After the accident, the seat belt appeared frayed.

When emergency crews arrived after the accident, Tran was lying on the floor of the minivan with his head on the spare tire. Tran had a seizure after the accident and does not remember the details of the accident.

Tran subsequently brought this negligence action against Nguyen, the Hohensees, Sarah Shockey, Dale Shockey (Shockeys father), and the Board of County Commissioners of Leavenworth County. Tran alleged Nguyen was negligent in that he was inattentive, failed to yield the right of way, failed to maintain proper control of the vehicle, and failed to maintain a proper lookout. According to the petition, Shockey was negligent in failing to maintain proper control of her vehicle, failing to maintain a proper lookout, driving at an excessive speed for the conditions, and being inattentive. Tran also brought a negligent entrustment action against Dale Shockey, alleging he knew or had reason to know that his minor daughter was an incompetent and careless driver.

Regarding the Hohensees, Tran alleged they “negligently entrusted their 1992 van to defendant Nguyen by furnishing the van to defendant Nguyen, knowing, or having reason or cause to know, defendant Nguyen to be an incompetent, careless driver.”

Finally, Tran asserted the Board was negligent in the design, construction, and maintenance of the intersection where the accident occurred.

Pursuant to a joint motion filed by Tran and the Shockeys, the Shockeys were subsequently dismissed from the lawsuit with prejudice.

The Hohensees moved for summary judgment, asserting there was no evidence that Nguyen was an incompetent or careless driver and, thus, there was no evidence to support Tran’s claim of negligent entrustment. Tran responded, arguing Nguyen was a careless driver because he knew or should have known the van was unsafe because its middle seat had been removed, the spare tire was unsecured, and the seat belt was frayed. Nguyen claimed the Hohensees negligently entrusted the van to Nguyen because they knew the van was unsafe and permitted Nguyen to drive it despite his knowledge of the unsafe conditions.

The district court granted the Hohensees’ motion for summary judgment, finding there were no genuine issues of material fact and the facts alleged by Tran were legally insufficient to support his negligent entrustment claim. Further, although the district court had not resolved Tran’s claims against the remaining defendants, the court expressly entered final judgment under K.S.A. 60-254(b) against Tran and in favor of the Hohensees, thus permitting this appeal.

Analysis

On appeal, Tran argues the district court erred in granting summary judgment because material issues of fact remain as to whether the Hohensees’ negligently entrusted the vehicle to Nguyen.

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).

Summary judgment should be granted with caution in negligence actions. See Esquivel v. Watters, 286 Kan. 292, 296, 183 (2008). However, summary judgment is proper in a negligence action if the defendant shows there is no evidence indicating negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007).

Negligent entrustment is “knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver. [Citations omitted.]” McCart v. Muir, 230 Kan. 618, 620, 641 P.2d 384 (1982); see also Grimmett v. Burke, 21 Kan. App. 2d 638, 650, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996) (“[Negligent entrustment occurs when the owner of an automobile allows a third party to drive it while knowing that the driver is incompetent, careless, or reckless.”). Thus, to avoid summary judgment on this claim, Tran was required to present evidence that the Hohensees entrusted their minivan to Nguyen with knowledge, or with reasonable cause to know, that Nguyen was an incompetent driver. See PIK Civ. 4th 121.92. “An incompetent driver is one, who by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care.” McCart, 230 Kan. at 620.

Significantly, in his petition, Tran characterized his negligent entrustment claim as consistent with Kansas law — i.e., he alleged the Hohensees entrusted their vehicle to Nguyen knowing him to be an incompetent or careless driver. However, in response to the Hohensees’ summary judgment motion, Tran did not directly argue that Nguyen was an incompetent or careless driver. Instead, as the district court noted, Tran attempted to rely upon a “creative” interpretation of Kansas’ negligent entrustment law. Essentially, Tran reasoned that Nguyen knew or should have known the Hohensees vehicle was unsafe and, consequently, Tran was a “careless” driver. Tran then concludes that because the Hohensees knew their vehicle was unsafe and entrusted the vehicle to a driver who knew or should have known the vehicle was unsafe, they negligently entrusted their vehicle to a careless driver.

Tran claims the minivan was unsafe in several respects: (1) the middle row of seats had been removed; (2) a spare tire and other loose items were stored in the area created by the removed seats; and (3) the shoulder harness of Tran’s seat belt was frayed. It is unclear whether Tran claims Nguyen knew, or should have known, of these conditions.

For instance, Tran repeatedly argues that Nguyen failed to inspect the minivan before driving it. Further, he points out that Xuan Hohensee, who was a passenger in the vehicle, knew that Nguyen had failed to inspect the vehicle. However, in his appeal brief, Tran also inconsistently suggests that Nguyen “knew of the alleged dangerous conditions and elected to drive and transport passengers despite these numerous unsafe conditions.” He further suggests that “[t]he dangerous conditions were open and obvious, the unsecured metal wheel was lying in the open.”

Regardless of Tran’s inconsistent positions regarding Nguyen’s knowledge of the alleged dangerous conditions, we cannot agree with Tran’s premise that driving an allegedly unsafe car renders a driver incompetent, careless, or reckless and renders the car’s owners Hable for the negligent entrustment of the vehicle. Negligent entrustment requires that the owner of the vehicle be aware of characteristics of the driver, not the vehicle, that render it unsafe for the owner to entrust the driver with the vehicle. See McCart, 230 Kan. at 620; Fogo, Administratrix v. Steele, 180 Kan. 326, 328, 304 P.2d 451 (1956); Grimmett, 21 Kan. App. 2d at 650.

Tran does not allege that Nguyen was an unsafe driver by reason of his age, experience, physical or mental condition, or known habits of recklessness. Nor did Tran present any evidence to show that the Hohensees knew or should have known that Nguyen was an unsafe driver based upon any personal characteristics. Rather, Tran relies entirely upon evidence which he suggests shows that the minivan was unsafe.

In suggesting that the trial court should have found material questions of fact remaining as to whether Nguyen stated a claim of negligent entrustment pursuant to Restatement (Second) of Torts § 389 (1964), the dissent suggests that “it would seem that the trial court ignored plaintiff s additional allegations of uncontroverted facts” and instead accepted the defendants’ contention that “no such negligent entrustment theory could be made under those allegations.”

The flaw in the dissent’s analysis is that the plaintiff never made a claim of negligent entrustment pursuant to Restatement § 389. Instead, it is uncontroverted that the only claim the plaintiff pled was that the Hohensees negligently entrusted their van to Nguyen knowing, or having reason or cause to know, Nguyen was an incompetent or careless driver.

The dissent places great emphasis upon the trial court’s finding that Tran claimed the Hohensees’ vehicle was unsafe. The problem is that the trial court’s reference to the allegation clearly recognized its tie to Tran’s claim that Nguyen was a careless driver. As the trial court pointed out, the only basis for Tran’s negligent entrustment claim was that a “reasonably prudent driver would have inspected the van and found it to be unsafe.” The court then summarized Tran’s negligent entrustment claim as follows: “Nguyen knowingly operated the van in its existing condition, quote, Displayed the fact that he is a careless driver, end quote.”

The dissent would find that the district court erred in ruling upon what the dissent terms the plaintiff s “initial negligent entrustment theory that plaintiff seemed to rely on.” In fact, this “initial” theory was the “only” theory that plaintiff relied upon throughout the summaiy judgment pleadings and hearing. The dissent fails to note that in Tran’s response to the summary judgment motion, Tran reiterates his “theory” of liability — i.e., that the Hohensees “negligently entrusted an unsafe vehicle to a careless driver.” This theory is reiterated throughout the response, and Tran never suggested that he was asserting a different theory of negligent entrustment, much less Restatement §389.

Significantly, the dissent also fails to note that the only possible new theory Tran referred to in response to summary judgment was an unspecified claim regarding vehicles and laws “designed to avoid causing the injuries which occurred on the day of this accident.” In support of this argument, Tran asserted:

“In the alternative and without waiving the above, modem motor vehicle manufacturers by regulation and on their own initiative taire many precautions to prevent drivers from placing dangerous objects in the open where they can harm passengers in a vehicle. Vehicles have a compartment for spare tires to be placed either at tire rear of the car or under the car, completely away from causing harm to a passenger. Vehicles come with trunks or space in the rear of larger vehicles to put rugs, boxes, and other loose items than can contribute to harmful conditions. There are strict regulations on safety devices and restraints ensuring that they operate properly. All of these measures are incorporated by the manufacturers to prevent injuries to passengers such as Mr. Tran suffered.” (Emphasis added.)

While the nature of this “alternative” claim is not at all clear to the court, we can say with certainty that it does not appear to state anything close to an alternative theory of liability based on Restatement § 389. At best, it seems to attempt to preserve a strict liability claim against the vehicle’s manufacturer, although the manufacturer was not a party to the action.

Further, Tran’s counsel reiterated at the summary judgment hearing that Tran’s claim was based on the drivers failure to “inspect the vehicle and to not drive it if it’s unsafe” and the Hohensees’ knowledge of the drivers failure. Moreover, after the Hohensees’ counsel pointed out that Tran had failed to establish that the driver was incompetent, careless, or reckless, the district court gave Tran’s counsel an opportunity to respond. In response, Tran’s counsel not only failed to assert a negligent entrustment theory under Restatement § 389, he once again reiterated that Tran’s negligent entrustment claim relied upon Tran’s “failure to inspect the vehicle” and his assertion that Tran was an “unsafe driver.” Finally, Tran’s counsel pointed out, “Well, the PIK [PIK Civ. 4th 121.92] I think really hits it. It defines common drivers and unsafe drivers.”

Thus, Tran had multiple opportunities to assert an alternative theory of liability. At every opportunity, Tran reasserted his theory of liability based upon the carelessness and negligence of the driver. We decline to devise and apply a new theory at the appellate stage of these proceedings.

Additionally, even if we were willing to unilaterally declare that Tran somehow pled an alternative theory of negligent entrustment, we would nevertheless have to conclude as a matter of law that the theory did not apply here. As the dissent points out, Restatement § 389 bases liability upon supplying an unsafe chattel to a third person while knowing or having reason to know the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put. The dissent fails to point out what this theory clearly implies — i.e., that the owner actually supplies the chattel to a third person and the third person then uses the chattel absent the owners presence.

Here, it is uncontroverted that one of the owners of the vehicle, Xuan Hohensee, was a passenger in the vehicle driven by Nguyen. She did not supply the vehicle to Nguyen expecting him to use it in a particular manner. She was present and “using” the vehicle herself, albeit as a passenger, not a driver.

In conclusion, we refuse to apply an alternative theory of negligent entrustment under Restatement (Second) of Torts § 389 because that theory was never pled or asserted by the plaintiff despite multiple opportunities to do so. Further, even if we; were willing to apply that alternative theory, we would find the facts of this case do not fit within it.

Because the district court correctly held that the facts as alleged by Tran were insufficient to support his claim of negligent entrustment as pled, we affirm the district court’s grant of summary judgment in favor of the Hohensees.

Affirmed.