Burris v. Zurich

Decision Date11 December 2019
Docket NumberNo. 19CA3676,19CA3676
Citation2019 Ohio 5255,138 N.E.3d 1185
Parties Patricia BURRIS, et al., Plaintiffs-Appellants, v. ZURICH, et al., Defendants-Appellees.
CourtOhio Court of Appeals

Peter D. Traska, Cleveland, Ohio, for appellant.

Jonathan W. Philipp, Schaumburg, Illinois, for appellees.

DECISION & JUDGMENT ENTRY

ABELE, J.

{¶ 1} This is an appeal from a Ross County Common Pleas Court summary judgment in favor of Herrnstein Chrysler, Inc. and John Brant, III, defendants below and appellees herein. Patricia Burris, plaintiff below and appellant herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT SHOULD HAVE FOUND THAT THERE IS AN ISSUE OF FACT AS TO APPELLEE HERRNSTEIN CHRYSLER, INC.'S DIRECT NEGLIGENCE IN THEIR VEHICLE TEST DRIVE PROCEDURES."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT SHOULD HAVE FOUND THAT, AS A MATTER OF OHIO LAW, WHEN A CORPORATE AUTO DEALER'S SALESPERSON IS PRESENT DURING A TEST DRIVE, THE CORPORATE DEALER IS A DIRECT PARTICIPANT OR CO-VENTURER IN THE TEST DRIVE, AND IS THEREFORE LIABLE FOR THE DRIVER'S NEGLIGENCE."

{¶ 2} In November 2015, Hidy Richards and her friend, Tijuana Zerrei, visited the Herrnstein dealership. Zerrei had been interested in purchasing a vehicle. Because Zerrei apparently forgot her driver's license and could not test drive a vehicle, Richards offered to test drive the vehicle for Zerrei. The salesperson, Brant, accompanied Richards and Zerrei on the test drive. During the course of the test drive, Richards collided with the car that appellant and her companion, Jimmy Riddle, had occupied.

{¶ 3} Appellant and Riddle filed a complaint against multiple parties, including Richards, Herrnstein, Brant, and various insurance companies. The parties eventually settled or dismissed all of the claims except the claims appellant filed against appellees. Appellant sought to hold appellees liable for (1) Richards' alleged negligent operation of the vehicle, and (2) Herrnstein's failure to have a test drive policy in place that may have revealed that Richards had worked a graveyard shift the day of the test drive.

{¶ 4} Subsequently, appellees requested summary judgment and argued that they cannot be held vicariously liable for Richards' alleged negligence. They further disputed appellant's claim that the court could impute negligence under a joint enterprise theory of liability.

{¶ 5} To support their respective positions, the parties referred the trial court to the depositions. Richards stated that she worked the night before the accident and finished work at 6:30 a.m. Richards explained that after work, she went home to sleep. Later, she accompanied Zerrei to the dealership and, because Zerrei forgot to bring her driver's license, Richards agreed to test drive the car.

{¶ 6} Brant testified that he had been unaware that Richards worked until 6:30 a.m. the day of the accident. When plaintiffs' counsel asked Brant whether he would have allowed Richards to test drive the vehicle if he had known that she had worked all night, Brant responded:

The way you've asked that question, it would be subjective. If there was any reason for her–I mean, if she wasn't seemingly able to drive it, then no, I would say something to upper management that there was a problem. If she didn't have any indication that there was any issue and she had a valid driver's license and a seemingly valid insurance card and signed the test drive agreement, then I would have let her drive.

Brant stated that he did not notice anything to lead him to believe that Richards would have a problem driving the car.

{¶ 7} Herrnstein's director of sales operations stated that the dealership's test drive policy is to ask for a driver's license and to obtain a copy of the insurance card, or to otherwise obtain the insurance information by asking the prospective purchaser for the insurance information.

{¶ 8} The trial court subsequently granted appellees' request for summary judgment. This appeal followed. In her two assignments of error, appellant argues that the trial court incorrectly entered summary judgment in appellees' favor. Because the same standard of review applies to both assignments of error, for ease of discussion we consider them together.

A

{¶ 9} Initially, we observe that appellate courts must conduct a de novo review of trial court summary judgment decisions. E.g., State ex rel. Novak, L.L.P. v. Ambrose , 156 Ohio St.3d 425, 2019-Ohio-1329, 128 N.E.3d 209, ¶ 8 ; Pelletier v. Campbell , 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13 ; Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court's decision. Grafton , 77 Ohio St.3d at 105, 671 N.E.2d 241.

{¶ 10} Civ.R. 56(C) provides, in relevant part, as follows:

* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

{¶ 11} Accordingly, pursuant to Civ.R. 56, a trial court may not award summary judgment unless the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) after viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party. Pelletier at ¶ 13 ; M.H. v. Cuyahoga Falls , 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12 ; Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

B

{¶ 12} In her first assignment of error, appellant asserts that genuine issues of fact remain as to whether Herrnstein acted negligently by (1) failing to inquire into Richards' competency to operate a vehicle, and (2) failing to have a policy that may have revealed that Richards had worked until 6:30 a.m. the day of the test drive. Appellant argues that Ohio case law does not exist regarding "a car dealer's direct liability for an accident caused by a driver who was not up to operating a vehicle during the test drive." Appellant thus requests that this court to consider a case from Louisiana, Barnett v. Globe Indem. Co. , 557 So.2d 300, 301 (La.App. 1990).

{¶ 13} Appellees respond that appellant's negligence claim against appellees is one for negligent entrustment. Appellees contends that appellant cannot establish any genuine issues of material fact to show that Herrnstein negligently entrusted the vehicle to Richards.

{¶ 14} In reply, appellant appears to suggest that because no Ohio case has ever applied a negligent entrustment theory against a car dealership, then this court should follow Barnett . Appellant asserts that car dealers have heightened duties when allowing prospective purchasers to test drive vehicles and that car dealers act negligently when they fail to inquire into an individual's competency to drive.

{¶ 15} Despite appellant's attempt to recast her negligence claim as something other than negligent entrustment, we point out that courts across the country have uniformly applied the negligent entrustment theory of liability in actions against car dealerships. In fact, the case that appellant asks us to follow, Barnett , considered the car dealership's liability under a negligent entrustment theory and not under some heightened negligence standard applicable to car dealerships only. In Barnett , the car dealership permitted an individual to test drive one of its vehicles. During the test drive, the vehicle struck the plaintiffs' vehicle. The plaintiffs filed a complaint against the car dealership and alleged that the salesperson and car dealership acted negligently by entrusting the vehicle to the individual who test drove the car. The plaintiffs sought to hold the car dealership liable under theories of imputed negligence and negligent entrustment. The trial court later entered summary judgment in the car dealership's favor, and the plaintiffs appealed.

{¶ 16} On appeal, the plaintiffs argued that factual disputes remained regarding its two theories of liability. The plaintiffs claimed that the car dealership and the prospective purchaser were engaged in a joint venture at the time of the accident and that the car dealership thus may be liable for the prospective purchaser's alleged negligence. The plaintiffs further asserted that the car dealership acted negligently by entrusting the vehicle to an alleged incompetent driver.

{¶ 17} The Louisiana court rejected both arguments. The court noted that under Louisiana law, a joint venture exists between " ‘occupants of a conveyance’ " when the occupants share a " ‘joint interest in the objects and purposes of the enterprise’ " and " ‘an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.’ " Id. , quoting Ault & Wiborg Co. Of Canada v. Carson Carbon Co. , 181 La. 681, 160 So. 298 (1935). The appellate court determined that the plaintiffs failed to present any evidence to support their theory of liability under a joint venture theory. The court explained:

The mere fact of [the individual]'s test
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