Lopez v. Langer

• Decision Date: 08 September 1988
• Docket Number: No. 16781,16781
• Citation: 761 P.2d 1225,114 Idaho 873
• Parties: Elias Roberto LOPEZ, as personal representative of the Estate of Eda Lopez, deceased, and as conservator of the Estate of Robert Diaz Lopez, Steven Elias Lopez, and Juanita Esmeralda Lopez, the minor children of Eda Diaz Lopez, deceased, and Elias Roberto Lopez, Plaintiff-Appellant, v. Jeffrey Frank LANGER and Frank Langer, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1225

761 P.2d 1225

114 Idaho 873

Elias Roberto LOPEZ, as personal representative of the Estate of Eda Lopez, deceased, and as conservator of the Estate of Robert Diaz Lopez, Steven Elias Lopez, and Juanita Esmeralda Lopez, the minor children of Eda Diaz Lopez, deceased, and Elias Roberto Lopez, Plaintiff-Appellant, v. Jeffrey Frank LANGER and Frank Langer, Defendants-Respondents.

No. 16781.

Supreme Court of Idaho.

Sept. 8, 1988.

[114 Idaho 874] E. Lee Schlender, Hailey, for plaintiff-appellant.

Quane, Smith, Howard and Hull, Boise, for defendant-respondent Frank Langer. Terry B. Spencer, argued.

Coleman, McIntyre & Ritchie, Twin Falls, for defendant-respondent Jeffrey Frank Langer. John S. Ritchie appeared.

HUNTLEY, Justice.

Elias Roberto Lopez, individually and as personal representative of the estate of Eda Lopez, deceased; and as conservator of the estate of their children, appeals the trial court's entry of final judgment pursuant to a jury verdict finding only defendant Jeff Langer negligent and partially liable for the death of Eda Lopez, which occurred after she was struck by a vehicle driven by Jeff. Jeff's father, Frank, was the title-holder of the vehicle which struck Mrs. Lopez, but was found by the jury not to be "the owner" of the vehicle for purposes of extending tort liability under the theory of negligent entrustment. Lopez asserts the trial court erroneously instructed the jury on that issue. Lopez also contends that the jury verdict was inconsistent in that the jury specifically found that Frank Langer was a proximate cause of Eda Lopez' death, yet did not ascribe any percentage of causation to him when they totaled their negligence assessments. Finally, Lopez appeals as prejudicial error the trial court's failure to strike certain portions of defense counsel's closing argument wherein Lopez contends defense counsel violated the prohibition against "golden rule" arguments, by asking the jury to place themselves in the position of defendant Frank Langer.

In December 1981, Jeff Langer struck and killed Eda Lopez, a pedestrian. Jeff Langer was nineteen years old at the time of the accident, and had a lengthy record of traffic violations and convictions, including driving under the influence. At the time of the accident, the registration of the vehicle which hit Mrs. Lopez was in the name of Jeff's father, Frank Langer. The record indicates that Frank purchased the vehicle for Jeff with Jeff's money; the vehicle was maintained by Jeff and was, at all times, under Jeff's control. Frank Langer testified that, several months prior to the death of Eda Lopez, he endorsed, or "signed-off" on, the title to the vehicle which killed Mrs. Lopez, and delivered that title to his ex-wife, with whom Jeff was living. Frank's ex-wife did not register the vehicle in her name after receiving the title. Of this transfer, Frank testified that he was operating During trial, Lopez sought a directed verdict that Frank Langer was the owner of the vehicle which struck Mrs. Lopez for purposes of extending tort liability. The trial court refused to direct a verdict and instead gave Instruction No. 31, defining "ownership" for purposes of liability under the theory of negligent entrustment, which read:

on the advice of his attorney, so that he could transfer "all responsibility, ownership, whatever it took. I felt that I was under the circumstances, giving her the car, which was Jeff's car."

Ownership of a motor vehicle may involve more than mere "naked legal title." It includes possession or the right to exercise dominion and control over the motor vehicle.

Instruction No. 32 further provided that Frank could not be found to have negligently entrusted his vehicle to Jeff unless he "owned" the vehicle.

During closing argument, defense counsel asked the jury to place themselves in the same position as Frank Langer with regard to Frank's alleged transfer of title:

Frank did what was reasonable under the situation, what his attorney had told him to do. And I think that sometimes it is helpful if you put yourself in the same shoes as the party that's doing something ... Anyway, what would you have done in the same situation?

Counsel for Lopez objected to this line of argument, asserting that it was a violation of the prohibition against "golden rule" argument.

The jury returned a special verdict which found Jeff Langer a proximate cause of the accident contributing to 75% of the causation. The jury found Eda Lopez a proximate cause of the accident contributing 25% to causation. Finally, the jury found Frank Langer to be a proximate cause of the accident, but ascribed 0% causation to him. The jury further found that Frank was not the "owner" of the vehicle which killed Mrs. Lopez, and that he had not "negligently entrusted" the vehicle to Jeff.

There are three issues before us on appeal: (1) Whether the trial court erred in failing to direct a verdict in favor of plaintiff on the "ownership" issue; (2) whether the trial court erred in failing to resolve any conflict in the jury verdict pursuant to I.R.C.P. 49(a); and (3) whether the trial court erred in allowing defense counsel to use a "golden rule" argument in its closing. We address each issue in turn.

"OWNERSHIP" FOR PURPOSES OF NEGLIGENT ENTRUSTMENT

An owner or other person in control of a vehicle and responsible for its use may be held liable for damages resulting from use of the vehicle by another under the theory of negligent entrustment, where such person knew or should have known that such use may create an unreasonable risk of harm to others. Kinney v. Smith, 95 Idaho 328, 508 P.2d 1234 (1973). Typically, the person who entrusts a vehicle is its title owner. However, the paramount requirement for liability under a theory of negligent entrustment is whether or not the defendant had a right to control the vehicle.

Although the negligent entrustment theory may apply where one who has the right to control the car permits another to use it in circumstances where he knows or should know that such use may create an unreasonable risk of harm to others, it does not apply when the right to control is absent.

Mills v. Continental Parking Corporation, 475 P.2d 673, 674 (Nev.1970). Similarly, a person may be in control of a vehicle, for purposes of negligent entrustment, even though the person does not own it. Mejia v. Erwin, 726 P.2d 1032 (Wash.App.1986).

Rigid and formalistic conceptions of ownership based upon the issuance of certificates of title are disfavored by the courts. In Pacific Insurance Co. v. Oregon Auto Ins. Co., 490 P.2d 899 (Hawaii 1971), despite the existence of a statute providing that a transfer of a motor vehicle registration will be ineffective "for any purpose" until the city and county treasurer has issued a new certificate of registration, an attempted transfer (where the treasurer In Mejia, supra, the court affirmed a grant of summary judgment to a defendant father whose credit card had been used to assist his son in renting an automobile. The son was killed while driving the vehicle, and his passenger, the plaintiff, sued under the theory of negligent entrustment. The record revealed that the son had been dropped from his father's insurance policy years earlier for numerous traffic violations.

[114 Idaho 876] had not issued new certificates) was nonetheless held effective for purposes of averting civil liability for the negligent operation of a vehicle, as the purported seller had surrendered physical possession and control of the automobile.

Under those facts, the court held:

[T]here are no facts showing that [father] entrusted a vehicle to [son]. The facts reveal, rather, that [father] was simply lending his credit to [son] to assist him in renting a replacement automobile. The fact that the automobile was rented in [father's] name does not alter the true nature of this transaction--a mere accommodation. (Emphasis in original).

Mejia, 726 P.2d at 1034.

The record in this case conclusively shows that Frank did not possess any right of possession or control over the vehicle which killed Eda Lopez. Although Frank paid for the vehicle (using Jeff's money), the nature of this transaction is, as in Mejia, little more than "a mere accommodation."

Lopez argues that various provisions in Idaho's Motor Vehicle Title Act, I.C. § 49-401 et seq., provide that, as title owner of the vehicle which killed Eda Lopez, Frank is liable for the injuries. Specifically, Lopez cites to I.C. § 49-401(e), which defines "owner" as the person with legal title:

(e) "Owner." A person who holds the legal title of a vehicle or in the event a vehicle is subject to an agreement for the conditional sale or lease thereof ... then such conditional vendor or leasee or mortgagor shall be deemed the owner for the purpose of this chapter.

Additionally, Lopez cites to I.C. § 49-404, which further provides that no right or title in a vehicle exists absent possession of a certificate of title:

49-404. Issuance of certificate of title requisite to acquisition of title--waiver or estoppel.--Except as provided in sections 49-403, 40-412, 49-413, 49-414, and 49-416, no person acquiring a motor vehicle from the owner thereof, whether such owner be a dealer or otherwise, shall hereafter acquire any right, title, claim or interest in or to said motor vehicle until he shall have issued to him a certificate of title to said motor vehicle, nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or an assignment of such certificate of said motor vehicle for a valuable consideration.

Lopez argues that these code sections indicate that the certificate of title is determinative regarding questions of ownership. However, as already explained, it is not mere title ownership which gives rise to liability under the theory of negligent entrustment--it is the right to possess and control the vehicle in...