Allen v. Toledo

• Court: California Court of Appeals
• Writing for the Court: GERALD BROWN
• Citation: Allen v. Toledo, 109 Cal.App.3d 415, 167 Cal.Rptr. 270 (Cal. App. 1980)
• Decision Date: 20 August 1980
• Parties: Donald Scott ALLEN et al., Plaintiffs and Respondents, v. Stephen Michael TOLEDO and Robert Toledo, Defendants and Appellants. Civ. 18902.

Page 270

167 Cal.Rptr. 270

109 Cal.App.3d 415

Donald Scott ALLEN et al., Plaintiffs and Respondents, v. Stephen Michael TOLEDO and Robert Toledo, Defendants and Appellants.

Civ. 18902.

Court of Appeal, Fourth District, Division 1, California.

Aug. 20, 1980.

Hearing Denied Oct. 15, 1980.

Higgs, Fletcher & Mack and David D. Randolph and Gregg C. Sindici, San Diego, for defendants and appellants.

William T. Tyson, Popko & Cornblum and Bruce Cornblum, San Diego, for plaintiffs and respondents.

GERALD BROWN, Presiding Justice.

On November 13, 1975, 19-year-old Stephen Toledo smashed his father's pick-up truck into Charlene Allen's Volkswagen "Thing" which was pulling out of the driveway of a convenience store, killing Charlene. Her four minor children sued Stephen and his father Robert Toledo for her wrongful death. The cause of action against Robert was for negligently entrusting Stephen with his truck when he knew or should have known, Stephen was a reckless driver.

The jury returned a general verdict of $200,000 against Stephen and Robert. The jury also answered special interrogatories on negligent entrustment and comparative fault. The jury found Robert permitted Stephen to use his vehicle when he knew or should have known Stephen was a reckless driver; Stephen's recklessness proximately caused this accident. As to comparative fault, the jury found Charlene was not negligent.

Stephen and Robert appeal the judgment. Contrary to plaintiffs' claim, the appeal is not frivolous.

Admission of Evidence of Other Accidents

Over objection, the court admitted evidence of Stephen's involvement in three earlier vehicle accidents. Robert knew Stephen had been in an accident on November 18, 1973, while driving Robert's vehicle. Stephen was in an accident on March 29, 1975, in which the vehicle, which Robert owned and Stephen was driving, was damaged. Stephen was injured on October 25, 1975, and the vehicle he was driving was damaged when it struck another vehicle and then hit a house. Stephen was living at home at the time. Less than three weeks later he killed Charlene.

Defendants contend the evidence of the earlier accidents should have been excluded under Evidence Code sections 1101, 1104, and 352, because its probative value was far outweighed by the likelihood the jury would improperly infer Stephen had been negligent or reckless in the present instance. Evidence of involvement in other accidents is inadmissible when its purpose is solely to prove negligence in the accident in question (Downing v. Barrett Mobile Home Transport, Inc., 38 Cal.App.3d 519, 524, 113 Cal.Rptr. 277; see Evid. Code, § 1104). Here, however, the evidence of Stephen's involvement in other accidents was relevant to Robert's liability for negligent entrustment. Robert's knowledge of Stephen's unfitness or incompetence to drive is an essential element of liability for negligent entrustment (Richards v. Stanley, 43 Cal.2d 60, 63, 65, 271 P.2d 23; Syah v. Johnson, 247 Cal.App.2d 534, 539, 55 Cal.Rptr. 741; McCalla v. Grosse, 42 Cal.App.2d 546, 550, 109 P.2d 358).

"The doctrine of 'negligent entrustment' is clearly distinguishable from the theory of 'vicarious liability.' Negligent entrustment is a common law liability doctrine. (Citation.) Conversely, the obligation of a lending owner of an automobile is one of statutory liability. (Citation.) An owner of an automobile may be independently negligent in entrusting it to an incompetent driver. (Citation.) California is one of several states which recognizes the liability of an automobile owner who has entrusted a car to an incompetent, reckless, or inexperienced driver, and has supplemented the common law doctrine of negligent entrustment by enactment of a specific consent statute. (See 163 A.L.R. 1418; Veh. Code, §§ 17150-17157.)

". . .

". . . (F)oreign jurisdictions have given favorable sanction to the common law doctrine of negligent entrustment. (Citations.)

" 'It is generally recognized that one who places or entrusts his motor vehicle in the hands of one whom he knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver's disqualification, incompetency, inexperience or recklessness. . . .

" 'Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner.' (Citations.)

"Under the theory of 'negligent entrustment,' liability is imposed on vehicle owner or permitter because of his own independent negligence and not the negligence of the driver, in the event plaintiff can prove that the injury or death resulting therefrom was proximately caused by the driver's incompetency." (Italics, last paragraph, added; Syah v. Johnson, supra 247 Cal.App.2d 534, 538-539, 55 Cal.Rptr. 741; see also, 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 650, p. 2929; Rest. of Torts (2d ed. 1966) §§ 308, 390; Pritchett v. Kimberling Cove, Inc., 568 F.2d 570.)

"In reviewing the exercise by the trial court of its discretion, under Evidence Code section 352, an appellate court is neither authorized nor warranted to substitute its judgment for that of the trial judge. Relief is available only where the alleged abuse of discretion clearly constitutes a miscarriage of justice." (Cain v. State Farm Mut. Auto Ins. Co., 47 Cal.App.3d 783, 798, 121 Cal.Rptr. 200, 210; Brown v. Newby, 39 Cal.App.2d 615, 618, 103 P.2d 1018).

Here the trial court balanced the probative value of the evidence of Stephen's other accidents against the potential for prejudice resulting from its improper use by the jury (Evid. Code, § 352). The evidence included no inflammatory or highly prejudicial details; indeed, it did little more than show the occurrence of the accidents. After weighing these factors, the trial court admitted the evidence for the limited purpose of showing Robert's knowledge and instructed the jury accordingly. In addition, the court told the jury it was not to consider the evidence in determining whether Stephen was negligent in the accident involved in the litigation. Under these circumstances, the trial court did not abuse its discretion in admitting evidence of Stephen's other accidents.

Defendants argue the evidence of other accidents does not support the jury's finding Robert liable for negligently entrusting the pick-up to Stephen. Liability for negligent entrustment is determined by applying general principles of negligence, and ordinarily it is for the jury to determine whether the owner has exercised the required degree of care (Hartford Accident & Indemnity Co. v. Abdullah, 94 Cal.App.3d 81, 91-92, 156 Cal.Rptr. 254; Owens v. Carmichael's U-Drive Autos, Inc., 116 Cal.App. 348, 350, 2 P.2d 580).

Review of the evidence on this issue is limited to determining whether the jury's finding is supported by substantial evidence.

". . . (A)ll conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible . . . (W)hen a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court." (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183).

"The trier of fact is the sole judge of the credibility and weight of he evidence. . . ." (Estate of Teel, 25 Cal.2d 520, 526, 154 P.2d 384.)

The record contains uncontroverted evidence of Stephen having been in three earlier vehicle accidents, including two within the eight months before the collision involved here, and one of them 19 days before. Moreover, in the most recent accident, the vehicle Stephen was driving collided with both another vehicle and a house. Robert was aware of Stephen's involvement. There was substantial evidence from which the jury could conclude a reasonable and prudent vehicle owner with knowledge of Stephen's previous accidents would not have permitted Stephen to drive. The jury's finding Robert liable for negligently entrusting the pick-up to Stephen is supported by substantial evidence.

The Jury's Finding Charlene Was Not Negligent

Stephen and Robert say the jury erred in finding Charlene was not negligent. They assert her negligence was in not looking to the south, in the direction from which vehicles would approach in the first lanes of traffic which she had to cross, when she pulled out from the driveway of the store.

The record contains conflicting testimony about how long Charlene looked to the south, when she turned her head to look to the north, and whether the pick-up driven by Stephen had become visible from her vantage point before she pulled out. But there was evidence from which the jury could conclude she continued to look to the south until she pulled out, and the pick-up had not come into her view before she pulled out. Accordingly, the jury's finding Charlene was not negligent is supported by substantial evidence.

Defendants contend an error during the jury's deliberations prejudicially affected the finding on Charlene's negligence. The jury requested a re-reading of the testimony of independent witness Luke Perry about the direction Charlene was looking...